, . Tie - ate te cai ene enn Plt = \> ABS. Industrial law - interlocutory injunction - independent contractors - whether eligible to be members of employee organization - ban on products of independent contractors - power to grant injunction restraining 'criminal offence. Practice and procedure - Federal Court - accrued jurisdiction - whether discretionary - whether common law actions incompatible with objects of Conciliation and Arbitration Act 1904. Order 6 rule 7 Federal Court Rules Conciliation and Arbitration Act 1904 s. 109, s. 132A, s. 188 Federal Court of Australia Act 1976 s. 23 Beecham Group Ltd v Bristol Laboratories Pty. Ltd. (1968) 118 C.L.R. World Series Cricket Pty. Ltd. v Parish (1977) 16 A.L.R. 181 Commonwealth of Australia v John Fairfax and Sons Ltd. (1980) 147 C.L.R. 39 Boyce v Paddington Borough Council £19033 1 Ch. 109 Wentworth v Woollahra Municipal Council (1982) 42 A.L.R. 69 Philip Morris Incorporated v Adam P. Brown Male Fashions Pty. Ltd, (1981) 148 C.L.R. 457 GRAY J. MELBOURNE l Jaliy 2 August 1984 C WAow N_THE co OF AUS VICTORIA DIS INDUSTRIAL DIVISION BETWEEN : A No. V30 of 1984 DAVID SAMUEL MEDCRAFT and REGINALD JOHN JAFFRAY Applicants FEDERATED ENGINE DRIVERS & FIREMEN'S ASSOCIATION OF AUSTRALASIA Firstnamed Respondent s M WORKERS ' UNION Secondnamed Respondent MIC. GR Thirdnamed Respondent NO. BR IN Fourthnamed Respondent BRIAN SWEENEY, PHILIP POULSON, ROBERT GILLHAM, BRUCE GIBSON and FRED FORD Fifthnamed Respondents LLOYD SAWARD Sixthnamed Respondent FO! H PTY. LTD Seventhnaned Respondent N (°) AUSTRALI VICTOR REGISTRY No. V30 of 1984 INDUSTRIAL DIVISION wwe ww BETWEEN : DAVID SAMUEL MEDCRAFT and REGINALD JOHN JAFFRAY Applicants AND: FED! ENGINE DRIVERS & FIREMEN'S ASSOCIATION OF AUS IA Firstnaned Respondent AND: AUSTRALIAN TIMBER WO 'UNIO Secondnamed Respondent AND: CHAEL GREY Thirdnamed Respondent AND: NORMAN BRITTON Fourthnamed Respondent AND: BRIAN SWEENEY, PHILIP POULSON, ROBERT GILLH GILLHAM, BRUCE G GIBSON and FRED RADFORD Fifthnamed Respondents AND: LLO S Sixthnamed Respondent AND: ASSOCJATED FOREST HOLDINGS Pry. LTD. Seventhnamed Respondent JUDGE: GRAY J. DATE: 2 August 1984 REASONS _FOR_ JUDGMENT In their application, filed on 10th July 1984, Applicants claim the following relief: "1. 7. A declaration that the Applicants are not eligible to become members of the first Respondent. A declaration that the Applicants are not eligible to become members of the second Respondent. A declaration that the Applicants are not employees of the seventh Respondent or of any other person. Injunctions to restrain the first Respondent, its officers servants and agents, from - (a) advising, encouraging or inciting the seventh Respondent to refuse to make use of, or to refuse to agree to make use of, any service offered by the Applicants or either of then, and (b) taking, or threatening to take, industrial action against the seventh Respondent with the intent to coerce the seventh Respondent to refuse to make use of, or to refuse to agree to make use of, any service offered by the Applicants or either of them, by reason of the circumstances that the Applicants are not members of the first Respondent. Injunctions to restrain the first Respondent, its officers, servants and agents, from imposing, or threatening to impose, a penalty, forfeiture or disability of any kind upon the sixth Respondent - (a) with intent to coerce him to refuse to obey the lawful directions of the seventh Respondent to load logs felled by the Applicants or either of them, or (b) by reason of the circumstances that the sixth Respondent has complied with the lawful directions of the seventh Respondent to load logs felled by the Applicants or either of then. Injunctions to restrain the sixth Respondent from refusing to obey the lawful directions of the seventh Respondent to load logs felled by the Applicants or either of then. Injunctions to restrain the first, third, fourth, the 9. fifth and sixth Respondents and each of them and their servants and agents and the servants and agents and each of them from committing or doing or continuing to commit or do acts whereby those Respondents or any of them - (a) have prevented or interfered with or are preventing or interfering with the performance of any contract between the Applicants or either of them and the seventh Respondent, or (b) have intimidated or are intimidating the seventh Respondent against using, continuing to use or resuming the use of the services of the Applicants or either of then, and from threatening or continuing to do so. Injunctions to restrain the first, third, fourth, fifth and sixth Respondents and each of them from conspiring or continuing to conspire either amongst themselves or with other persons - (a) to injure the Applicants or either of them, or (b) to advise, encourage or incite the seventh Respondent to refuse to make use of, or to refuse to agree to make use of, any service offered by the Applicants or either of them by reason of the circumstances that the Applicants are not members of the first Respondent, or (c) to take or threaten to take industrial action against the seventh Respondent with the intent to coerce the seventh Respondent to refuse to make use of, or to refuse to agree to make use of, any service of the Applicants or either of them by reason of the circumstances that the Applicants are not members of the first Respondent, or (dad) to threaten to impose a penalty, forfeiture or disability of any kind upon the sixth Respondent with intent to coerce him to refuse to obey the lawful directions of the seventh Respondent, or (e) to refuse to obey the lawful directions of the seventh Respondent, or (f) to prevent or interfere with the performance of any contract between the Applicants or either of them and the seventh Respondent or between the sixth Respondent and the seventh Respondent, or (g) to intimidate the seventh Respondent against using, continuing to use or resuming the use of, the services of the Applicants or either ° en. . Damages for breach of statutory duty. -4- 10. Damages for prevention of and interference with the performance of contracts. 11. Damages for intimidation. 12. Damages for conspiracy." The Applicants also claim by way of interlocutory relief the following: "1. Injunctions as ciaimed in paragraphs 4, 5, 6, 7 and 8 above. 2. %Injunctions to restrain the first, third, fourth, fifth and sixth Respondents and each of them and their servants and agents and the servants and agents of each of them from applying, implementing, enforcing or continuing any ban or restriction upon the handling of trees or logs now or hereafter to be felled by the Applicants. 3. An Order that the first Respondent suspend the application, implementation and enforcement of all bans and restrictions upon the handling of any trees or logs now or hereafter to be felled by the Applicants. 4. An Order that the first Respondent inform its officers, servants and agents and its members employed by and contracted to the seventh Respondent that there is a suspension of the application, implementation and enforcement of all bans and restrictions upon the handling of any trees or logs now or hereafter to be felled by the Applicants." The application for interlocutory relief was heard by me on 19th and 24th July 1984. Because the application seemed to me to raise possible difficulties as to the jurisdiction of this Court to grant injunctions, I felt bound to reserve judgment. On Thursday 19th July 1984, Dr. Jessup appeared for the -5- Applicants. Mr. Borenstein appeared for the First Respondent ("the F.E.D.F.A."). Mr. Hinkley appeared for the Second Respondent ("the A.T.W.U."). Mr. Ryan Q.C. and Mr. Young appeared for the Seventh Respondent ("the Company"). There was no appearance by or on behalf of any other Respondent. Service of the Application and the accompanying affidavits had been effected on all Respondents, with the exception of the Third Respondent, Mr. Grey. On that day, Dr. Jessup sought and obtained an order for substituted service of the documents on Mr. Grey. On Tuesday 24th July 1984, Mr. Stockdale appeared with Dr. Jessup for the Applicants. Mr. Tubbs appeared for the F.E.D.F.A. and for the Third Respondent, Mr. Grey, and the Fourth Respondent, Mr. Britton. There was no appearance by or on behalf of any of the Fifth Respondents or the Sixth Respondent, but the Applicants sought interlocutory relief against them on the basis that they had been served with the necessary documents. Each of the Applicants claims to be in business asa logging contractor in Northern Tasmania, in partnership with his wife. The evidence on affidavit as to the operations of such a conractor is uncontradicted. The Applicants are required to fell trees in specified areas of forest and to move the resulting logs onto the roadside for collection by vehicles. Three men are involved in the operation. Each of the Applicants employs a "faller", whose job is to fell the trees. In each case, the Applicant himself drives some kind of tractor which is used to drag the logs to the roadside. In the case of the Applicant Jaffray, the third person, who is the Applicant's son, works either as a faller or as a tractor driver as required. In the case of the Applicant Medcraft, the third person drives a truck owned by the Applicant which is used to transport logs felled by that Applicant, or by other loggers. The Applicant Jaffray''s normal faller is believed to be a member of the F.E.D.F.A., and his son is believed to be a member of A.T.H.U. The Applicant Medcraft's faller is believed to be a member of the A.T.W.U.; his truck driver is believed to be a member of the Transport Workers' Union of Australia. The Applicant Medcraft has been a logging contractor in Northern Tasmania for about sixteen years, and the Applicant Jaffray for about twenty-seven years. Each works in a designated area of forest at the direction of the Company. It is said that the Company gives no directions as to the manner in which the trees are to be felled, but issues safety guidelines from time to time (apparently because the Company may have some liability under legislation relating to workers compensation). The Company may reject logs which are not of the required quality. Each of the Applicants has aliucated by the Company a monthly quota, being the tonnage of logs that the Company is prepared to accept from that contractor, and for which it will pay. Payment may be either on the tonnage of logs passing over the weighbridge after the logs have been collected from the roadside, or at the rate of eighty per cent of the estimated tonnage of logs waiting for collection by the roadside, with later adjustment. The Applicant Medcraft is paid additional amounts for transporting logs, and for loading them onto his truck. As well as the logging contractors, the Company has employees working in the area. These include loader operators, who operate mobile machines equipped with grabs used to lift logs off the roadside and load them onto trucks. These machines move from place to place as required to load logs onto trucks. These loader operators are believed to be members of F.E.D.F.A. It appears that, in recent years, a number of logging contractors, whose operations are similar to those of the Applicants, have purported to become members of the F.E.D.F.A. The F.E.D.F.A. conducts negotiations on their behalf as to rates for the production and transport of logs. Towards the end of April 1984, a dispute arose as to the negotiation of rates of pay for logging contractors. This resulted in a stoppage of work by those contractors who purported to be members of the F.E.D.F.A., and their employees. There was a picket line placed at the entrance to a mill owned by Associated Pulp and Paper Mills Limited at Burnie, where logs cut by the Applicants, and the other logging contractors, would normally be taken. The stoppage of work continued until 28th May 1984, and the picket line remained until that date. For a short period, some logs were permitted into the mill in order to avoid the necessity for employees at the mill to be stood down. Some of the Applicant Jaffray's logs were allowed into the mill under this arrangement, but were unloaded and placed to one side and declared "black" by the F.E.D.F.A. and its members. This was apparently because the Applicant Jaffray had continued to work during the stoppage. The rest of the logs produced by the Applicants during the period of the stoppage remained by the roadside where they had been placed. Each of the Applicants continued to work throughout the stoppage, save that the Applicant Jaffray's tractor broke down on 23rd May 1984, and he was unable to resume work until 27th June 1984. Objection was taken by the F.E.D.F.A., and those logging contractors who purported to be its members, to the Applicants not being members of the F.E.D.F.A. Each was interviewed on 28th May 1984 by Mr. Grey (a fulltime Organizer in Tasmania for the F.E.D.F.A.) and Mr. Britton (the Senior Shop Steward of the F.E.D.F.A. at the Burnie Mill). Each of the Applicants was asked whether he was going to join the F.E.D.F.A., and each refused. Each considered that it would be inappropriate for him to join the F.E.D.F.A., as he was not an employee. Each also expressed other reasons for reluctance to join the F.E.D.F.A. On 30th May 1984, the Applicant Medcraft was met by the Fifth Respondents, a number of logging contractors who purport to be members of the F.E.D.F.A., as he attempted to enter the area of the forest in which he had been working. He was told that nobody would be allowed into the forest who was not a member of the F.E.D.F.A. The Applicant Medcraft turned back and did no work on that day. On the following day, he was again asked by Mr. Grey whether he would join the F.E.D.F.A., and was told that, if he did, everything that he had done in the past, such as working during the strike, would be forgotten. He again refused to join the F.E.D.F.A. Although the stoppage of work ended on 28th May 1984, the logs which the Applicants had felled and stacked by the roadside were not collected. They were declared "black" by the F.E.D.F.A. and its contractor members. The loader operators, who are members of the fF.E.D.F.A., refused to load the logs. The Applicant Medcraft has refrained from transporting his own logs to the Mill at Burnie in the belief that they would not be unloaded. On 13th June the Applicant Medcraft had a conversation in his allocated area of the forest with the Sixth Respondent, Mr. Saward, a loader operator employed by the Company. During the conversation, Mr. Saward received a radio message from the logging supervisor of the Company, directing him to goto a nearby place and to load certain logs onto trucks. The Applicant Medcraft informed Mr. Saward that the particular logs were his logs and were supposed to be black. Mr. Saward replied, "That puts me in a bad position, with the Company telling me to do one - 10 - thing and the F.E.D.F.A telling me to do another". Mr. Saward expressed this concern in similar terms to the logging supervisor on the radio. The logging supervisor said that he would come to the spot shortly. In the result, the particular logs were not moved. On 14th June 1984, the Applicant Medcraft saw a stationary truck loaded with logs which had been felled and placed by the roadside by him. He spoke to the driver of the truck, and to Mr. Saward, who was the driver of the loader which had loaded the truck. He told them that the logs were his. The logs were then removed from the truck. Until 27th June 1984, the Applicant Medcraft continued to fell logs and stack them by the side of the road. He was paid on the basis of eighty per cent of the estimated tonnage of those logs. On 27th June 1984, the manager of the Company spoke to each of the Applicants and told him he was being stood down. Since that time, neither of the Applicants has performed any logging work at all. Logs previously cut and stacked by the roadside by the Applicants have not been moved. Each of the Applicants is suffering loss by not being able to work, and by reason of continuing expenses, involving repayments for capital equipment. -~ll- On a number of occasions on and between 4th and 30th May 1984, there were proceedings before the Australian Conciliation and Arbitration Commission with respect to the stoppage of work. On two of these occasions, a solicitor acting on behalf of the Applicants and other persons attempted to intervene in those proceedings. The Commission refused to allow such intervention. Accordingly, although the dispute which led to that stoppage has been resolved, the Australian Concilation and Arbitration Commission has not attempted to resolve the dispute involving the Applicants. The F.E.D.F.A. is an organization of employees registered pursuant to the Conciliation and Arbitration Act 1904 ("the Act"). The classes of persons who are eligible to be its members are laid down in Rule 1 of its Rules, which (so far as is relevant) provides as follows: "The Association shall consist of an unlimited number of all classes of engine drivers, firemen, crane drivers, mobile crane drivers, forklift drivers, tow motor drivers, excavator drivers, pump attendants, pile drivers, motor drivers or attendants, greasers, cleaners, trimmers and any other workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power on land or any harbour or river and boiler attendants attending boilers not generating steam for power purposes, and such persons as have been elected as paid officers of the Association or Branch of the Assoctation or whilst financial members of the Association are elected as representatives of any working-class organization to which the Association or a Branch thereof is affiliated, or as a working-class member of Parliament. Provided that mobile crane drivers, operators of fork lifts and/or tow motors engaged on the waterfront upon such work being that of a waterside - 12- worker or engaged in the transport of goods by road, or motor truck drivers wherever employed, shall not be eligible for membership." The Applicants' claim relies heavily upon Section 109(1) of the Act, which is in the following terms: "109. (1) The Court is empowered - (b) to enjoin an organization or person from committing or continuing a contravention of this Act or the regulations; and (da) subject to section 144, to determine a question as to the eligibility of a person to become or remain a member of an organization." So far as the researches of Counsel, and my own enquiries, reveal, there appears to be no authority on either of the paragraphs of this sub-section. Although I have serious doubts as to the extent of the jurisdiction given to this Court by paragraph (dad), for the purposes of this interlocutory application, I am prepared to assume that it gives sufficient jurisdiction to enable the Court to deal with the applications for the relief claimed in paragraphs 1 and 2 of the Application. The claims for relief in paragraphs 4 and 5 of the Application rest upon paragraph (b) of the sub-section, and upon Section 132A(1)(a) and (b), and Section 188(1)(e) respectively. The remainder of the final relief sought is said to invoke the accrued jurisdiction of this Court. The interlocutory relief Claimed is based either upon Section 109(1)(b) of the Act, or Section 23 of the Federal Court of Australia Act 1976. -13- Section 132A(1) of the Act, so far as is relevant, is in the following terms: "132A. (1) An organization- (a) shall not advise, encourage or incite a person (whether an employer or not) to take discriminatory action against an eligible person by reason of the circumstance that the eligible person is not a member of the organization; (b) shall not' take, or threaten to take, industrial action against an employer with the intent to coerce the employer to take discriminatory action against an eligible person by reason of the circumstance that the eligible person is not a member of the organization;" Section 132A(2) provides that a contravention of sub-section (1) is an offence, and prescribes monetary penalties. Sub-section (3) casts upon a person charged the onus of proof that action taken was not actuated by the reason or taken with the intent proscribed by sub-section (1). Sub-section (4) purports to deem action taken by certain persons, including officers and groups of members of an organization, to have been taken by the organization. Sub-section (5) contains certain definitions for the purposes of the section. It provides as follows: "(S) In this section- "discriminatory action", in relation to an eligible person, means- (a) to refuse to make use of, or to refuse to agree to make use of, any service offered by the eligible person; or (b) to refuse to supply, or to refuse to agree to supply, goods or services to the eligible person; - 14 - "eligible person" means a person who- (a) is engaged in activities in an industry, otherwise than as an employee; and (b) by reason of being so engaged, is, or would, if he were an employee, be, eligible to join an organization. " This section, which was inserted in the Act by Act No. 108 of 1977, seems to be somewhat at odds with much that is found elsewhere in the Act. Its policy appears to be to encourage the use of independent contractors to perform work that would otherwise be performed by employees. Much of the Act is devoted to the creation of awards and agreements for the protection of terms and conditions of employment of employees. One way in which this protection is sometimes evaded is the use of independent contractors. Nevertheless, the provisions of the section are clear, and must be applied. It may be that the answer to the problem posed by the use of independent contractors could be resolved by legislative recognition that the term "industrial disputes" used in section 51(XXXV) of the Constitution may include disputes as to the terms and conditions upon which independent contractors are engaged to perform work: compare Co arte tralian Social Weifa Union (1983) 47 A.L.R. 225 at page 236. Section 188(1)(e) of the Act provides as follows: "188 (1) An organization- — (e) shall not impose or threaten to impose, a penalty, forfeiture or disability of any - 15 - kind upon a member of the organization by reason of the circumstance that the member has refused or failed to join in industrial action." Sub-section (2) of Section 188 provides that a contravention of sub-section (1) is an offence and lays down monetary penalties. Sub-section (3) contains a similar onus of proof provision and sub-section (4) contains a similar deeming provision to those found in Section 132A. In an application for interlocutory relief such as this, the court is required to proceed in two stages. At the first stage, the court must be satisfied either that the Applicant has made out a prima facie case, in the sense that, if the evidence remains as it is, he will be likely to succeed at the trial, or, alternatively, that there is a serious question to be tried. In the case of a statutory injunction, insofar as there is a difference between these two ways of expressing the first stage, I take the view that I am bound to apply the first of them. See B Grou td. v to ratories Pty. d. (1968) 118 C.L.R. 618 at page 622, followed in World Series Cricket Pty. Ltd. vy Parish (1977) 16A.L.R. 181 at pages 185-6 per Bowen C.J., 193-4 per Franki J. and 200 per Brennan J. To the extent to which the interlocutory application before me relies upon Section 109(1)(b) of the Act it is an application for a statutory injunction. To the extent to which the application relies on Section 23 of the Federal Court of Australia Act 1976, the Court - 16- may be regarded as exercising an equitable jurisdiction. In any event, there can be no doubt that, if the Court is satisfied that & prima facie case is made out, there is bound to be, at the least, a serious question to be tried. I am satisfied that the Applicants have made out a prima facie case that they are not eligible to be members of the F.E.D.F.A., by reason of the fact that they are not employees. The most powerful factor in reaching this conclusion is' the uncontradicted evidence that the Applicants themselves employ other persons to carry out the work of felling trees and moving logs. It is difficult to see how persons who themselves employ others can be regarded as employees. The eligibility rule of the F.E.D.F.A. is not, in terns, limited to employees. Nevertheless, in order to be registered as an organization under the Act, an association must be an association of one of the kinds contemplated by Section 132(1). On the evidence before me, the F.E.D.F.A.'s membership includes employees. For its registration to be valid, the F.E.D.F.A. must be an association of the kind contemplated by paragraph (b) or paragraph (c) of Section 132(1); each of these associations is an association of employees. The eligibility rule of the F.E.D.F.A. must be construed with this in mind. If this is done, persons who are not employees could not validly be admitted to membership. Iam also satisified that a prima facie case has been made out that the F.E.D.F.A. has committed and is committing a -17- contravention of paragraph (b) of Section 132A(1) of the Act. In my view, the imposition by the F.E.D.F.A. of a ban on logs felled and stacked by the roadside by the Applicants constitutes industrial action, within the meaning of paragraph (b) of the definition of "industrial action" in Section 4(1) of the Act. Having regard to the work performed by the Applicants in driving tractors to haul logs to the roadside, and to the words "engine drivers" and "tow motor drivers" in the eligibility rule of the F.E.D.F.A., it appears that, but for the fact that they are not employees the Applicants would be eligible to join the F.E.D.F.A. For this reason, each of the Applicants is an "eligible person" within the definition of that term in Section 132(A)(5). The object of the ban is to prevent the Company from making use of or engaging the services of the Applicants, and is accordingly "discriminatory action" within the definition of that term in Section 132A(5). On the evidence, the ban is imposed by reason of the circumstance that the Applicants are not members of the F.E.D.F.A. I emphasize that, in making these findings, I am not to be taken as concluding any of the issues with respect to which the findings are directed. As I have pointed out above, I have heard only the evidence put forward by one side, without that evidence having been tested by cross examination. It may turn out, upon the trial of the action, that a different conclusion is reached. It goes without saying that I have not applied a standard of proof which would be applicable if a prosecution for - 18 - an offence against Section 132A of the Act were brought against the F.E.D.F.A., namely proof beyond a reasonable doubt. I should also point out that I have reached the conclusions which I have set out as to the conduct of the F.E.D.F.A. without the application of sub-section (4) of Section 132A. Doubt may exist as to the extent to which that provision is within the legislative competence of the Australian Parliament under the Constitution. See Actors and Announcers Equity Associati of Austra v_ Font. Films Pty. Ltd. (1982) 40 A.L.R. 609, and earlier authorities on the extent to which the Parliament may use deeming provisions to bring matters within its legislative competence. Having found that a prima facie case exists with respect to certain matters, I turn to consider whether an interlocutory injunction should be granted with respect to those matters. It must. be remembered that what is alleged against the F.E.D.F.A. is the commission of a criminal offence under Section 132A of the Act. To proceed against a person for an interlocutory injunction to restrain the commission of an alleged criminal offence is to Place that person in a difficult situation. Either the allegations must be met, in which case it will be necessary to reveal matters which might otherwise be reserved for the defence to a prosecution, or the allegations made must be allowed to pass unchallenged. This is an undesirable situation. It may have led, in part, to the early principle that the courts of equity - 19 - would not grant an injunction restraining the commission of a crime. See Meagher, Gummow and Lehane, it oct es and Remedies, Second Edition, at page 535. In time, this principle mellowed to the extent that the Attorney-General, of his own motion or onthe relation of a private citizen, was held to be entitled to seek an injunction to enforce the criminal law. This right is based on the duty of the Attorney-General to safeguard the public interest. It is of comparatively modern use, and confined to cases where an offence is frequently repeated in disregard of an inadequate penalty, or to cases of emergency. See Commonwealth of Australia v John Fairfax and Sons Ltd. (1980) 147 C.L.R. 39 at pages 49-50, where Mason J. cited Goyriet v Union of Post Office Workers (19781 A.C. 435. Side by side with the exceptional nature of this jurisdiction, there appears to have grown up a practice, based on Boyce v_ Paddington Borough Counci] £19033 1 Ch. 109, whereby a private citizen may claim an injunction where a breach of a public right is involved if that breach also involves a breach of a private right, or where the person making the claim suffers special damage not suffered by other members of the public. In the case of such special damage, it appears that no infringement of any private right is required. The precise nature of the special damage which must be shown to exist has been the subject of considerable debate. See Meagher, Gummow and Lehane, Equity Doctrines and Remedies, Second Edition, pages 537-540. In recent authorities, such as wor 1 C Cc - 20 - (1982) 42 A.L.R. 69, there appears a trend towards recognition of a broader class of persons entitled to claim injunctions where breaches of statutes providing for criminal sanctions are involved. When Section 109(1)(b) of the Act was first enacted, it, together with the former Section 109(1)(a), was the sole express grant to a newly created court, the Commonwealth Industrial Court, of any power to grant injunctions. The court should, therefore, be reluctant to construe Section 109(1)(b) as enlarging either the kinds of matters in respect of which injuctions may be granted, or the classes of persons entitled to apply for injunctions, except to the extent that any such enlargement necessarily follows from the language used in the provision. It may be that there are possible contraventions of the Act which would not amount to criminal offences. In such cases, where no other specific provision for interim restraining orders is made, the grant of an injunction under Section 109(1)(b) may be appropriate. Similarly, the grant of an injunction at the suit of the Attorney-General against a persistent offender under the Act would probably fall within the power given by Section 109(1)(b). In my view, the power now given to this Court by Section 109(1)(b) does permit the grant of an injunction where the conduct alleged constitutes a criminal offence under some provision of the Act, and where the person seeking the injunction has suffered some special damage of the kind referred to above. In those circumstances, an interlocutory - 21 - injunction may be granted upon the principles which normally apply to such relief. Although he argued vigorously that Section 109(1)(b) gives the Court power to grant an injunction restraining a contravention of Section 132A, Mr. Stockdale, on behalf of the Applicants resisted the general proposition that any offence under the Act can be so restrained. In particular, he refused to commit himself to the proposition that an injunction would lie to restrain an employer from dismissing an employee where that dismissal would be in breach of Section 5 of the Act, or that a party to an award could be restrained by injunction from committing the offence of wilfully making default in compliance with the award, under Section 122 of the Act. Mr. Stockdale's reluctance has not made it any easier for me to reach the conclusion I have reached as to the applicability of Section 109(1)(b) to a contravention of Section 132A. The distinction which Mr. Stockdale attempted to make between a "contravention" and a "breach" of the Act is not, in my view, a real distinction. I note that Section 188(1){(a) and (b) refer to a "contravention" of various provisions of Section 5. It may be that the question of an injunction to restrain a wilful default in compliance with an award must be determined by reference to the special provisions which the Act contains for dealing with breaches of awards (see Sections 119 and 33), and to the specific repeal of the former Section 109(1)(a) by Act No. 53 of 1970. It is also possible that the specific provisions in Section 5(5) for the - 22 - reimbursement of lost wages and reinstatement of an employee, upon conviction of an employer, are indicative of a legislative intention that the remedy of injunction should not be available where a contravention of Section 5 is likely to occur. In the present case, however, it is unnecessary to determine these matters. Section 132A does not contain any indication of an intention that an injunction should not lie. My conclusion as to the power of the Court to grant an injunction pursuant to Section 109(1)(b) of the Act makes it unnecessary for me to consider what effect Section 23 of the Federal Court of Australia Act 1976 may have. Provisions framed specifically for interim relief, such as Sections 140(10) and 141(2) may have to be construed as codes, and therefore as the sole sources of the power of the Court to grant interim orders in matters under those sections. I do not have to decide whether Section 109(1)(b) should be regarded as excluding fron consideration, in a matter under the Act, the powers which might otherwise arise from Section 23 of the Federal Court of Australia Act 1976. The Applicants are persons who have suffered special damage by the alleged criminal conduct of the F.E.D.F.A. That conduct is directed specifically against the Applicants, and the suffering of loss by them is the direct and natural result of it. Accordingly, it is my view that the Applicants are persons who, under the general law, would be entitled to seek injunctions, - 23 - including interlocutory injunctions, against the F.E.D.F.A., to restrain the conduct alleged. On this basis, having regard to my earlier conclusions as to the making out of a prima facie case on the facts, the Applicants are entitled to an interlocutory injunction if the balance of convenience is in their favour. As to the remainder of the interlocutory relief sought in the Application, I do not regard the Applicants as having such an entitlement. I am not satisfied that a prima facie case has been made out of breach of Section 132A(1)(a); the evidence before me does not disclose that the F.E.D.F.A. has advised, encouraged or incited the Company in the terms of that paragraph. Nor does it disclose whether the F.E.D.F.A. has so advised, encouraged or incited the employees of the Company. I am left to draw inferences as to how the ban was imposed; the evidence is equally consistent with the employees, members of the F.E.D.F.A., requesting the F.E.D.F.A. to impose the ban, as it is with the F.E.D.F.A. advising, encouraging or inciting its members to impose the ban. As to paragraph 5 of the relief sought in the application, the evidence before me does not disclose anything suggesting the irposition or threatened imposition of a penalty on Mr. Saward. Counsel for the Applicants relied upon what is alleged to have been said by Mr. Saward to the Applicant Medcraft on 13th June 1984 to the effect that the F.E.D.F.A. was telling Mr. Saward to do something, as evidence of the threatened - 24 - imposition of a penalty. In my view, this evidence falls far short of establishing a prima facie case of breach of Section 188(1)(e) of the Act. It appears to me to be extremely doubtful whether the Applicants could succeed with respect to the relief claimed in paragraph 6 of the Application on a final basis, let alone on an interlocutory basis. What is sought appears to me to be an attempt to enforce a term of a contract of employment against an employee, namely that the employee obey all lawful orders of the employer. Although there are circumstances in which equity will restrain a breach of a contract of employment, a court of equity will not grant an injunction which will have the effect of compelling a person to work. Such an order would run counter to all the principles by which courts have declined to force people to enter into or to remain in close working relationships, as well as the principle that a court of equity will not grant an order that will require constant supervision by the court, or frequent resort to the court for the purpose of determining whether its order has been carried out to the letter, on pain of punishment for contempt. It would be difficult to draft an order of the kind sought in paragraph 6 of the application without enjoining Mr. Saward against terminating his contract of employment in what would otherwise be a lawful way. The possibility would also exist that the Applicants might wish to return to the Court alleging that such an order had not been carried out because Mr. Saward was working too slowly, or failing - 25 - immediately to obey an order of the Company. To these considerations, it is necessary to add the fact that the Applicants are not parties to the contract of employment between the Company and Mr. Saward pursuant to which lawful orders might be given. It would be extraordinary if a stranger to a contract could enforce by injunction an obligation owed by one party to the contract to the other. The relief sought in paragraphs 7 and 8 of the application is based upon the common law actions for interference with the performance of a contract, intimidation and conspiracy. With respect to each of these actions, a real possibility exists that the Respondents would be able to make out at the triala defence on the basis that they are pursuing their own legitimate interests. Such a defence may be a good defence to any of the common law causes of action. In addition, the evidence as to the contractual relations between the Applicants and the Company is too vague to satisfy me that a prima facie case exists as to interference with the performance of any contract. IT am not satisfied that the Applicants are not working by reason of any threat made by any of the First, Third, Fourth, Fifth or Sixth Respondents either to the Applicants or to the Company. Evidence of an agreement between those Respondents for the purpose of supporting a claim of conspiracy is lacking at the present time. Insofar as I have been invited by Counsel for the Applicants to draw inferences as to these 'matters, I do not regard those inferences as appropriate. - 26 - It was also argued that the exercise of the accrued jurisdiction is a matter of discretion, and not of right, and that the Court should not exercise it. That the Court is not obliged to exercise the accrued jurisdiction was said by Barwick C.J. in Philip Morris Incorporated v Adam P. Brown Male Fashions Pty. Ltd. (1981) 148 C.L.R. 457, at page 475, as follows: "This exercise of this jurisdiction, which for want of a better term I shall call "accrued" jurisdiction, is discretionary and not mandatory, though it will be obligatory to exercise the federal jurisdiction which has been attracted in relation to the matter." There is a real possibility that, at the trial, the Court may be persuaded that it should not deal with claims for damages and injunctions based upon the so-called economic torts when its jurisdiction under the Act is invoked. The existence of the economic torts, as developed by the English courts, is arquably related to the history of English legislation dealing with industrial disputes. That legislation has been adopted in some of the States in Australia, but the existence of the Act since 1904, and of legislation setting up the machinery for dealing with industrial disputes by conciliation and arbitration in some States since earlier dates, has made resort to common law actions and the processes of equity unnecessary in the resolution of nost industrial disputes. There can be no doubt that the courts of the States have jurisdiction to deal with economic torts, and to grant injunctions restraining their commission. The exercise of that jurisdiction by this Court-may be thought to be incompatible with the objects of the Act, especially those expressed in - 27 - paragraphs (a), (b) and (c) of Section 2 of the Act. In addition, so far as the common law relief is concerned, the proceeding may suffer at the present time for want of parties. Each of the applicants has sworn that he is in partnership with his wife. Any cause of action available at common law would be available to the partners, jointly and severally. Whilst the absence of the other partners as applicants does not defeat the proceeding (see Order 6 Rule 7 of the Federal Court Rules), it would be inappropriate for the Court to grant relief of this nature while the risk of a multiplicity of proceedings exists. So far as the specific interlocutory relief sought in the application is concerned, I do not regard the injunctions of the mandatory kinds sought by paragraphs 3 and 4 as appropriate. The injunction which I have framed will, I hope, be sufficient to ensure that the Applicants resume working until the trial of the action. Accordingly, it is unmnmecessary to consider paragraph 2 of the interlocutory relief sought. As to the balance of convenience, it is clear that the Applicants are suffering substantial and continuing loss by being deprived of work. On the other hand, the F.E.D.F.A. does not appear to be likely to suffer to any great extent by the grant of an interlocutory injunction. Even though it may be pursuing the maintenance of industrial conditions on behalf of its members, - 28 - the grant of a temporary injunction until the trial of the proceeding will not do grave damage in this respect. I have already given directions which, it is hoped, will ensure the early trial of the proceeding. In these circumstances, on balance, an injunction is justified. The form of the injunction is not precisely that sought in the application. It is restricted to enjoining the F.E.D.F.A., by itself, its servants or agents, and does not specifically enjoin any other Respondent. In my view, the position as to the conduct of the other Respondents is adequately catered for by drawing to their attention the terms of the injunction granted. Industrial law - interlocutory injunction - independent contractors - whether eligible to be members of employee organization - ban on products of independent contractors - power to grant injunction restraining criminal offence. Practice and procedure - Federal Court - accrued jurisdiction - whether discretionary - whether common law actions incompatible with objects of Conciliation and Arbitration Act 1904. Order 6 rule 7 Federal Court Rules Conciliation and Arbitration Act 1904 5s. 109, s. 132A, s. 188 Federal Court of Australia Act 1976 s. 23 Beecham Group Ltd v Bristol Laboratories Pty. Ltd. (1968) 118 C.L.R. World Series Cricket Pty. Ltd. v Parish (1977) 16 A.L.R. 181 Commonwealth of Australia _v John Fairfax and Sons itd. (1980) 147 C.L.R. 39 Boyce v Paddington Borough Council £1903] 1 Ch. 109 Wentworth v Woollahra !funicipal Council (1982) 42 A.L.R. 69 Philip Morris Incorporated v Adam P. Brown Male Fashions Pty. Ltd. (1981) 148 C.L.R. 457 GRAY J. am, MELBOURNE fucrwed Jalsa 2 August 1984 C Wow, Te er ee cere ce ee ~ IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY INDUSTRIAL DIVISION No. V30 of 1984 end DAVID SAMUEL MEDCRAFT and REGINALD JOHN JAFFRAY Applicants FEDERATED ENGINE DRIVERS & FIREMEN'S ASSOCIATION OF AUSTRALASIA Firstnamed Respondent AUSTRALIAN TIMBER WORKERS' UNION Secondnamed Respondent MIC GREY Thirdnamed Respondent NORMAN BRITTON Fourthnamed Respondent BRIAN SWEENEY, PHILIP POULSON, ROBERT GILLHAM, BRUCE GIBSON and FRED RADFORD Fifthnamed Respondents LLOYD SAWARD Sixthnamed Respondent ASSOCIATED FOREST HOLDINGS PTY. LTD. Seventhnamed Respondent IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY INDUSTRIAL DIVISION No. V30 of 1984 wee ww BETWEEN: DAVID SAMUEL MEDCRAFT and REGINALD JOHN JAFFRAY Applicants AND: FEDERATED ENGINE DRIVERS & FIREMEN'S ASSOCIATION OF AUSTRALASTA Firstnamed Respondent AND: AUSTRALIAN TIMBER WORK: 'UNION Secondnamed Respondent AND: MICHAEL GREY Thirdnamed Respondent AND: NORMAN BRITTON Fourthnamed Respondent AND: BRIAN SWEENEY, PHILIP POULSON, ROBERT GILLHAM, BRUCE GIBSON and FRED RADFORD Fifthnamed Respondents AND: LLO SAWARD Sixthnamed Respondent AND: ASSOCIATED FOREST HOLDINGS PTY. LTD. Seventhnamed Respondent JUDGE: GRAY J. DATE: 2 August 1984 REASONS FOR JUDGMENT In their application, filed on 10th July 1984, the Applicants claim the following relief: "1. A declaration that the Applicants are not eligible to become members of the first Respondent. 2. A declaration that the Applicants are not eligible to become members of the second Respondent. 3. A declaration that the Applicants are not employees of the seventh Respondent or of any other person. 4. Injunctions to restrain the first Respondent, its officers servants and agents, from - (a) advising, encouraging or inciting the seventh Respondent to refuse to make use of, or to refuse to agree to make use of, any service offered by the Applicants or either of them, and (b) taking, or threatening to take, industrial action against the seventh Respondent with the intent to coerce the seventh Respondent to refuse to make use of, or to refuse to agree to make use of, any service offered by the Applicants or either of them, by reason of the circumstances that the Applicants are not members of the first Respondent. 5. Injunctions to restrain the first Respondent, its officers, servants and agents, from imposing, or threatening to impose, a penalty, forfeiture or disability of any kind upon the sixth Respondent - (a) with intent to coerce him to refuse to obey the lawful directions of the seventh Respondent to load logs felled by the Applicants or either of them, or (b) by reason of the circumstances that the sixth Respondent has complied with the lawful directions of the seventh Respondent to load logs felled by the Applicants or either of then. 6. Injunctions to restrain the sixth Respondent from refusing to obey the lawful directions of the seventh Respondent to load logs felled by the Applicants or either of then. 7. Injunctions to restrain the first, third, fourth, 9. fifth and sixth Respondents and each of them and their servants and agents and the servants and agents and each of them from committing or doing or continuing to commit or do acts whereby those Respondents or any of them - (a) have prevented or interfered with or are preventing or interfering with the performance of any contract between the Applicants or either of them and the seventh Respondent, or (b) have intimidated or are intimidating the seventh Respondent against using, continuing to use or resuming the use of the services of the Applicants or either of then, and from threatening or continuing to do so. Injunctions to restrain the first, third, fourth, fifth and sixth Respondents and each of them from conspiring or continuing to conspire either amongst themselves or with other persons - (a) to injure the Applicants or either of them, or (b) to advise, encourage or incite the seventh Respondent to refuse to make use of, or to refuse to agree to make use of, any service offered by the Applicants or either of them by reason of the circumstances that the Applicants are not members of the first Respondent, or (c) to take or threaten to take industrial action against the seventh Respondent with the intent to coerce the seventh Respondent to refuse to make use of, or to refuse to agree to make use of, any service of the Applicants or either of them by reason of the circumstances that the Applicants are not members of the first Respondent, or (d) to threaten to impose a penalty, forfeiture or disability of any kind upon the sixth Respondent with intent to coerce him to refuse to obey the lawful directions of the seventh Respondent, or (e) to refuse to obey the lawful directions of the seventh Respondent, or (f) to prevent or interfere with the performance of any contract between the Applicants or either of them and the seventh Respondent or between the sixth Respondent and the seventh Respondent, or (g) to intimidate the seventh Respondent against using, continuing to use or resuming the use of, the services of the Applicants or either of then. Damages for breach of statutory duty. -~4- 10. Damages for prevention of and interference with the performance of contracts. 11. Damages for intimidation. 12. Damages for conspiracy." The Applicants also claim by way of interlocutory relief the following: "1. Injunctions as claimed in paragraphs 4, 5, 6, 7 and 8 above. 2. (Injunctions to restrain the first, third, fourth, fifth and sixth Respondents and each of them and their servants and agents and the servants and agents of each of them from applying, implementing, enforcing or continuing any ban or restriction upon the handling of trees or logs now or hereafter to be felled by the Applicants. 3. An Order that the first Respondent suspend the application, implementation and enforcement of all bans and restrictions upon the handling of any trees or logs now or hereafter to be felled by the Applicants. 4. An Order that the first Respondent inform its officers, servants and agents and its members employed by and contracted to the seventh Respondent that there is a suspension of the application, implementation and enforcement of all bans and restrictions upon the handling of any trees or logs now or hereafter to be felled by the Applicants." The application for interlocutory relief was heard by me on 19th and 24th July 1984. Because the application seemed to me to raise possible difficulties as to the jurisdiction of this Court to grant injunctions, I felt bound to reserve judgment. On Thursday 19th July 1984, Dr. Jessup appeared for the Applicants. Mr. Borenstein appeared for the First Respondent ("the F.E.D.F.A."). Mr. Hinkley appeared for the Second Respondent ("the A.T.W.U."). Mr. Ryan Q.C. and Mr. Young appeared for the Seventh Respondent ("the Company"). There was no appearance by or on behalf of any other Respondent. Service of the Application and the accompanying affidavits had been effected on all Respondents, with the exception of the Third Respondent, Mr. Grey. On that day, Dr. Jessup sought and obtained an order for substituted service of the documents on Mr. Grey. On Tuesday 24th July 1984, Mr. Stockdale appeared with Dr. Jessup for the Applicants. Mr. Tubbs appeared for the F.E.D.F.A. and for the Third Respondent, Mr. Grey, and the Fourth Respondent, Mr. Britton. There was no appearance by or on behalf of any of the Fifth Respondents or the Sixth Respondent, but the Applicants sought interlocutory relief against them on the basis that they had been served with the necessary documents. Each of the Applicants claims to be in business as a logging contractor in Northern Tasmania, in partnership with his wife. The evidence on affidavit as to the operations of such a conractor is uncontradicted. The Applicants are required to fell trees in specified areas of forest and to move the resulting logs onto the roadside for collection by vehicles. Three men are involved in the operation. Each of the Applicants employs a "faller", whose job is to fell the trees. In each case, the Applicant himself drives some kind of tractor which is used to drag the logs to the roadside. In the case of the Applicant Jaffray, the third person, who is the Applicant's son, works either as a faller or as a tractor driver as required. In the case of the Applicant Medcraft, the third person drives a truck owned by the Applicant which is used to transport logs felled by that Applicant, or by other loggers. The Applicant Jaffray's normal faller is believed to be a member of the F.E.D.F.A., and his son is believed to be a member of A.T.W.U. The Applicant Medcraft's faller is believed to be a member of the A.T.W.U.; his truck driver is believed to be a member of the Transport Workers' Union of Australia. The Applicant Medcraft has been a logging contractor in Northern Tasmania for about sixteen years, and the Applicant Jaffray for about twenty-seven years. Each works in a designated area of forest at the direction of the Company. It is said that the Company gives no directions as to the manner in which the trees are to be felled, but issues safety guidelines from time to time (apparently because the Company may have some liability under legislation relating to workers compensation). The Company may reject logs which are not of the required quality. Bach of the Applicants has allucated by the Company a monthly quota, being the tonnage of logs that the Company is prepared to accept from that contractor, and for which it will pay. Payment may be either on the tonnage of logs passing over the weighbridge after the logs have been collected from the roadside, or at the rate of eighty per cent of the estimated tonnage of logs waiting for collection by the roadside, with later adjustment. The Applicant Medcraft is paid additional amounts for transporting logs, and for loading them onto his truck. As well as the logging contractors, the Company has employees working in the area. These include loader operators, who operate mobile machines equipped with grabs used to lift logs off the roadside and load them onto trucks. These machines move from place to place as required to load logs onto trucks. These loader operators are believed to be members of F.E.D.F.A. It appears that, in recent years, a number of logging contractors, whose operations are similar to those of the Applicants, have purported to become members of the F.E.D.F.A. The F.E.D.F.A. conducts negotiations on their behalf as to rates for the production and transport of logs. Towards the end of April 1984, a dispute arose as to the negotiation of rates of pay for logging contractors. This resulted in a stoppage of work by those contractors who purported to be members of the F.E.D.F.A., and their employees. There was a picket line placed at the entrance to a mill owned by Associated Pulp and Paper Mills Limited at Burnie, where logs cut by the Applicants, and the other logging contractors, would normally be taken. The stoppage of work continued until 28th May 1984, and the picket line remained until that date. For a short period, some logs were permitted into the mill in order to avoid the necessity for employees at the mill to be stood down. Some of the Applicant Jaffray's logs were allowed into the mill under this arrangement, but were unloaded and placed to ome side and declared "black" by the F'.E.D.F.A. and its members. This was apparently because the Applicant Jaffray had continued to work during the stoppage. The rest of the logs produced by the Applicants during the period of the stoppage remained by the roadside where they had been placed, Each of the Applicants continued to work throughout the stoppage, save that the Applicant Jaffray's tractor broke down on 23rd May 1984, and he was unable to resume work until 27th June 1984. Objection was taken by the F.E.D.F.A., and those logging contractors who purported to be its members, to the Applicants not being members of the F.E.D.F.A. Each was interviewed on 28th May 1984 by Mr. Grey (a fulltime Organizer in Tasmania for the F.E.D.F.A.) and Mr. Britton (the Senior Shop Steward of the F.E.D.F.A. at the Burnie Mill). Each of the Applicants was asked whether he was going to join the F.E.D.F.A., and each refused. Each considered that it would be inappropriate for him to join the F.E.D.F.A., as he was not an employee. Each also expressed other reasons for reluctance to join the F.E.D.F.A. On 30th May 1984, the Applicant Medcraft was met by the Fifth Respondents, a number of logging contractors who purport to be members of the F.E.D.F.A., as he attempted to enter the area of the forest in which he had been working. He was told that nobody would be allowed into the forest who was not a member of the F.E.D.F.A. The Applicant Medcraft turned back and did no work on that day. On the following day, he was again asked by Mr. Grey whether he would join the F.E.D.F.A., and was told that, if he did, everything that he had done in the past, such as working during the strike, would be forgotten. He again refused to join the F.E.D.F.A. Although the stoppage of work ended on 28th May 1984, the logs which the Applicants had felled and stacked by the roadside were not collected. They were declared "black" by the F.E.D.F.A. and its contractor members. The loader operators, who are members of the F.E.D.F.A., refused to load the logs. The Applicant Medcraft has refrained from transporting his own logs to the Mill at Burnie in the belief that they would not be unloaded. On 13th June the Applicant Medcraft had a conversation in his allocated area of the forest with the Sixth Respondent, Mr. Saward, a loader operator employed by the Company. During the conversation, Mr. Saward received a radio message from the logging supervisor of the Company, directing him to go to a nearby place and to load certain logs onto trucks. The Applicant Medcraft informed Mr. Saward that the particular logs were his logs and were supposed to be black. Mr. Saward replied, "That puts me in a bad position, with the Company telling me to do one - 10 - thing and the F.E.D.F.A telling me to do another". Mr. Saward expressed this concern in similar terms to the logging supervisor on the radio. The logging supervisor said that he would come to the spot shortly. In the result, the particular logs were not moved. On 14th June 1984, the Applicant Medcraft saw a stationary truck loaded with logs which had been felled and placed by the roadside by him. He spoke to the driver of the truck, and to Mr. Saward, who was the driver of the loader which had loaded the truck. He told them that the logs were his. The logs were then removed from the truck. Until 27th June 1984, the Applicant Medcraft continued to fell logs and stack them by the side of the road. He was paid on the basis of eighty per cent of the estimated tonnage of those logs. On 27th June 1984, the manager of the Company spoke to each of the Applicants and told him he was being stood down. Since that time, neither of the Applicants has performed any logging work at all. Logs previously cut and stacked by the roadside by the Applicants have not been moved. Each of the Applicants is suffering loss by not being able to work, and by reason of continuing expenses, involving repayments for capital equipment. - lil - On a number of occasions on and between 4th and 30th May 1984, there were proceedings before the Australian Conciliation and Arbitration Commission with respect to the stoppage of work. On two of these occasions, a solicitor acting on behalf of the Applicants and other persons attempted to intervene in those proceedings. The Commission refused to allow such intervention. Accordingly, although the dispute which led to that stoppage has been resolved, the Australian Concilation and Arbitration Commission has not attempted to resolve the dispute involving the Applicants. The F.E.D.F.A. is an organization of employees registered pursuant to the Conciliation and Arbitration Act 1904 ("the Act"). The classes of persons who are eligible to be its members are laid down in Rule 1 of its Rules, which (so far as is relevant) provides as follows: "The Association shall consist of an unlimited number of all classes of engine drivers, firemen, crane drivers, mobile crane drivers, forklift drivers, tow motor drivers, excavator drivers, pump attendants, pile drivers, motor drivers or attendants, greasers, cleaners, trimmers and any other workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power on land or any harbour or river and boiler attendants attending boilers not generating steam for power purposes, and such persons as have been elected as paid officers of the Association or Branch of the Association or whilst financial members of the Association are elected as representatives of any working-class organization to which the Association or a Branch thereof is affiliated, or as a working-class member of Parliament. Provided that mobile crane drivers, operators of fork lifts and/or tow motors engaged on the waterfront upon such work being that of a waterside - 12 - worker or engaged in the transport of goods by road, or motor truck drivers wherever employed, shall not be eligible for membership." The Applicants' claim relies heavily upon Section 109(1) of the Act, which is in the following terms: "109. (1) The Court is empowered - (bd) to enjoin an organization or person from committing or continuing a contravention of this Act or the regulations; and (da) subject to section 144, to determine a question as to the eligibility of a person to become or remain a member of an organization." So far as the researches of Counsel, and my own enquiries, reveal, there appears to be no authority on either of the paragraphs of this sub-section. Although I have serious doubts as tothe extent of the jurisdiction given to this Court by paragraph (d), for the purposes of this interlocutory application, I am prepared to assume that it gives sufficient jurisdiction to enable the Court to deal with the applications for the relief claimed in paragraphs 1 and 2 of the Application. The claims for relief in paragraphs 4 and 5 of the Application rest upon paragraph (b) of the sub-section, and upon Section 132A(1)(a) and (b), and Section 188(1)(e) respectively. The remainder of the final relief sought is said to invoke the accrued jurisdiction of this Court. The interlocutory relief Claimed is based either upon Section 109(1)(b) of the Act, or Section 23 of the Federal Court of Australia Act 1976. - 13- Section 132A(1) of the Act, so far as is relevant, is in the following terms: "132A. (1) An organization- (a) shall not advise, encourage or incite a person (whether an employer or not) to take discriminatory action against an eligible person by reason of the circumstance that the eligible person is not a member of the organization; (b) shall not take, or threaten to take, industrial action against an employer with the intent to coerce the employer to take discriminatory action against an eligible person by reason of the circumstance that the eligible person is not a member of the organization; " Section 132A(2) provides that a contravention of sub-section (1) is an offence, and prescribes monetary penalties. Sub-section (3) casts upon a person charged the onus of proof that action taken was not actuated by the reason or taken with the intent proscribed by sub-section (1). Sub-section (4) purports to deem action taken by certain persons, including officers and groups of members of an organization, to have been taken by the organization. Sub-section (5) contains certain definitions for the purposes of the section. It provides as follows: "(5) In this section- "discriminatory action", in relation to an eligible person, means- (a) to refuse to make use of, or to refuse to agree to make use of, any service offered by the eligible person; or (b) to refuse to supply, or to refuse to agree to supply, goods or services to the eligible person; - 14 - "eligible person" means a person who- (a) is engaged in activities in an industry, otherwise than as an employee; and (b) by reason of being so engaged, is, or would, if he were an employee, be, eligible to join an organization." This section, which was inserted in the Act by Act No. 108 of 1977, seems to be somewhat at odds with much that is found elsewhere in the Act. Its policy appears to be to encourage the use of independent contractors to perform work that would otherwise be performed by employees. Much of the Act is devoted to the creation of awards and agreements for the protection of terms and conditions of employment of employees. One way in which this protection is sometimes evaded is the use of independent contractors. Nevertheless, the provisions of the section are clear, and must be applied. It may be that the answer to the problem posed by the use of independent contractors could be resolved by legislative recognition that the term "industrial disputes" used in section 51(XXXV) oof the Constitution may include disputes as to the terms and conditions upon which independent contractors are engaged to perform work: compare RR. v. Coldham; Ex parte Australian Social Welfare Union (1983) 47 A.L.R. 225 at page 236. Section 188(1)(e) of the Act provides as follows: "188 (1) An organization- {e) shall not impose or threaten to impose, a penalty, forfeiture or disability of any -~ 15 - kind upon a member of the organization by reason of the circumstance that the member has refused or failed to join in industrial action." Sub-section (2) of Section 188 provides that a contravention of sub-section (1) is an offence and lays down monetary penalties. Sub-section (3) contains a similar onus of proof provision and sub-section (4) contains a similar deeming provision to those found in Section 132A. In an application for interlocutory relief such as this, the court is required to proceed in two stages. At the first stage, the court must be satisfied either that the Applicant has made out a prima facie case, in the sense that, if the evidence remains as it is, he will be likely to succeed at the trial, or, alternatively, that there is a serious question to be tried. In the case of a statutory injunction, insofar as there is a difference between these two ways of expressing the first stage, I take the view that I am bound to apply the first of them. See Beec Group Ltd. v Bristol boratories Pty. Ltd. (1968) 118 C.L.R. 618 at page 622, followed in World Series Cricket Pty. Ltd. v Parigh (1977) 16A.L.R. 181 at pages 185-6 per Bowen C.J3., 193-4 per Franki J. and 200 per Brennan J. To the extent to which the interlocutory application before me relies upon Section 109(1)(b) of the Act it is an application for a statutory injunction. To the extent to which the application relies on Section 23 of the Federal Court of Australia Act 1976, the Court -~ 16 - may be regarded as exercising an equitable jurisdiction. In any event, there can be no doubt that, if the Court is satisfied that a@ prima facie case is made out, there is bound to be, at the least, a serious question to be tried. I am satisfied that the Applicants have made out a prima facie case that they are not eligible to be members of the F.E.D.F.A., by reason of the fact that they are not employees. The most powerful factor in reaching this conclusion is the uncontradicted evidence that the Applicants themselves employ other persons to carry out the work of felling trees and moving logs. It is difficult to see how persons who themselves employ others can be regarded as employees. The eligibility rule of the F.E.D.F.A. is not, in terms, limited to employees. Nevertheless, in order to be registered as an organization under the Act, an association must be an association of one of the kinds contemplated by Section 132(1). On the evidence before me, the F.E.D.F.A.'s membership includes employees. For its registration to be valid, the F.E.D.F.A. must be an association of the kind contemplated by paragraph (b) or paragraph (c) of Section 132(1); each of these associations is an association of employees. The eligibility rule of the F.E.D.F.A. must be construed with this in mind. If this is done, persons who are not employees could not validly be admitted to membership. Iam also satisified that a prima facie case has been made out that the F.E.D.F.A. has committed and is committing a -17 - contravention of paragraph (b) of Section 132A(1) of the Act. In my view, the imposition by the F.E.D.F.A. of a ban on logs felled and stacked by the roadside by the Applicants constitutes industrial action, within the meaning of paragraph (b) of the definition of "industrial action" in Section 4(1) of the Act. Having regard to the work performed by the Applicants in driving tractors to haul logs to the roadside, and to the words "engine drivers" and "tow motor drivers" in the eligibility rule of the F.E.D.F.A., it appears that, but for the fact that they are not employees the Applicants would be eligible to join the F.E.D.F.A. For this reason, each of the Applicants is an "eligible person" within the definition of that term in Section 132(A)(5). The object of the ban is to prevent the Company from making use of or engaging the services of the Applicants, and is accordingly "discriminatory action" within the definition of that term in Section 132A(5). On the evidence, the ban is imposed by reason of the circumstance that the Applicants are not members of the F.E.D.F.A. I emphasize that, in making these findings, I am not to be taken as concluding any of the issues with respect to which the findings are directed. As I have pointed out above, I have heard only the evidence put forward by one side, without that evidence having been tested by cross examination. It may turn out, upon the trial of the action, that a different conclusion is reached. It goes without saying that I have not applied a standard of proof which would be applicable if a prosecution for - 18 - an offence against Section 132A of the Act were brought against the F.E.D.F.A., namely proof beyond a reasonable doubt. I should also point out that I have reached the conclusions which I have set out as to the conduct of the F.E.D.F.A. without the application of sub-section (4) of Section 132A. Doubt may exist as to the extent to which that provision is within the legislative competence of the Australian Parliament under the Constitution. See Actors and Announcers Equity Associati of Austra v_Fonta Films Pty. Ltd. (1982) 40 A.L.R. 609, and earlier authorities on the extent to which the Parliament may use deeming provisions to bring matters within its legislative competence. Having found that a prima facie case exists with respect to certain matters, I turn to consider whether an interlocutory injunction should be granted with respect to those matters. It must be remembered that what is alleged against the F.E.D.F.A. is the commission of a criminal offence under Section 132A of the Act. To proceed against a person for an interlocutory injunction to restrain the commission of an alleged criminal offence is to Place that person in a difficult situation. Either the allegations must be met, in which case it will be necessary to reveal matters which might otherwise be reserved for the defence to a prosecution, or the allegations made must be allowed to pass unchallenged. This is an undesirable situation. It may have led, in part, to the early principle that the courts of equity - 19 - would not grant an injunction restraining the commission of a crime. See Meagher, Gummow and Lehane, Equity Doctrines and Remedies, Second Edition, at page 535. In time, this principle mellowed to the extent that the Attorney-General, of his own motion or onthe relation of a private citizen, was held to be entitled to seek an injunction to enforce the criminal law. This right is based on the duty of the Attorney-General to safeguard the public interest. It is of comparatively modern use, and confined to cases where an offence is frequently repeated in disregard of an inadequate penalty, or to cases of emergency. See Commonwealth of Australia v John Fairfax and Song Ltd. (1980) 147 C.L.R. 39 at pages 49-50, where Mason J. cited Gouriet v Union of Post Office Workers £19781 A.C. 435. Side by side with the exceptional nature of this jurisdiction, there appears to have grown up a practice, based on Boyce v_ Paddington Borough Council £19033 1 Ch. 109, whereby a private citizen may claim an injunction where a breach of a public right is involved if that breach also involves a breach of a private right, or where the person making the claim suffers special damage not suffered by other members of the public. In the case of such special damage, it appears that no infringement of any private right is required. The precise nature of the special damage which must be shown to exist has been the subject of considerable debate. See Meagher, Gummow and Lehane, Equity Doctrines and Remedies, Second Edition, pages 537-540. In recent authorities, such as Wentworth v_Woollahara M cipal Council - 20 - (1982) 42 A.L.R. 69, there appears a trend towards recognition of a broader class of persons entitled to claim injunctions where breaches of statutes providing for criminal sanctions are involved. When Section 109(1)(b) of the Act was first enacted, it, together with the former Section 109(1)(a), was the sole express grant to a newly created court, the Commonwealth Industrial Court, of any power to grant injunctions. The court should, therefore, be reluctant to construe Section 109(1)(b) as enlarging either the kinds of matters in respect of which injuctions may be granted, or the classes of persons entitled to apply for injunctions, except to the extent that any such enlargement necessarily follows from the language used in the provision. It may be that there are possible contraventions of the Act which would not amount to criminal offences. In such cases, where no other specific provision for interim restraining orders is made, the grant of an injunction under Section 109¢(1)(b) may be appropriate. Similarly, the grant of an injunction at the suit of the Attorney~General against a persistent offender under the Act would probably fall within the power given by Section 109(1)(b). In my view, the power now given to this Court by Section 109(1)(b) does permit the grant of an injunction where the conduct alleged constitutes a criminal offence under some provision of the Act, and where the person seeking the injunction has suffered some special damage of the kind referred to above. In those circumstances, an interlocutory - 21 - injunction may be granted upon the principles which normally apply to such relief. Although he argued vigorously that Section 109(1)(b) gives the Court power to grant an injunction restraining a contravention of Section 132A, Mr. Stockdale, on behalf of the Applicants resisted the general proposition that any offence under the Act can be so restrained. In particular, he refused to commit himself to the proposition that an injunction would lie to restrain an employer from dismissing an employee where that dismissal would be in breach of Section 5 of the Act, or that a party to an award could be restrained by injunction from committing the offence of wilfully making default in compliance with the award, under Section 122 of the Act. Mr. Stockdale's reluctance has not made it any easier for me to reach the conclusion TI have reached as to the applicability of Section 109(1)(b) to a contravention of Section 132A. The distinction which Mr. Stockdale attempted to make between a "contravention" and a "breach" of the Act is not, in my view, a real distinction. I note that Section 188(])(a) and (b) refer to a "contravention" of various provisions of Section 5. It may be that the question of an injunction to restrain a wilful default in compliance with an award must be determined by reference to the special provisions which the Act contains for dealing with breaches of awards (see Sections 119 and 33), and to the specific repeal of the former Section 109(1)(a) by Act No. 53 of 1970. It is also possible that the specific provisions in Section 5(5) for the - 22 - reimbursement of lost wages and reinstatement of an employee, upon conviction of an employer, are indicative of a legislative intention that the remedy of injunction should not be available where a contravention of Section 5 is likely to occur. In the present case, however, it is unnecessary to determine these matters. Section 132A does not contain any indication of an intention that an injunction should not lie. My conclusion as to the power of the Court to grant an injunction pursuant to Section 109(1)(b) of the Act makes it unnecessary for me to consider what effect Section 23 of the Federal] Court of Australia Act 1976 may have. Provisions framed specifically for interim relief, such as Sections 140(10) and 141(2) may have to be construed as codes, and therefore as the sole sources of the power of the Court to grant interim orders in matters under those sections. I do not have to decide whether Section 109(1)(b) should be regarded as excluding from consideration, in a matter under the Act, the powers which might otherwise arise from Section 23 of the Federal Court of Australia Act 1976. The Applicants are persons who have suffered special damage by the alleged criminal conduct of the F.E.D.F.A. That conduct is directed specifically against the Applicants, and the suffering of loss by them is the direct and natural result of it. Accordingly, it is my view that the Applicants are persons who, under the general law, would be entitled to seek injunctions, "« - 23 - including interlocutory injunctions, against the F.E.D.F.A., to restrain the conduct alleged. On this basis, having regard to my earlier conclusions as to the making out of a prima facie case on the facts, the Applicants are entitled to an interlocutory injunction if the balance of convenience is in their favour. As to the remainder of the interlocutory relief sought in the Application, I do not regard the Applicants as having such an entitlement. I am not satisfied that a prima facie case has been made out of breach of Section 132A(1)(a); the evidence before me does not disclose that the F.E.D.F.A. has advised, encouraged or incited the Company in the terms of that paragraph. Nor does it disclose whether the F.E.D.F.A. has so advised, encouraged or incited the employees of the Company. I am left to draw inferences as to how the ban was imposed; the evidence is equally consistent with the employees, members of the F.E.D.F.A., requesting the F.E.D.F.A. to impose the ban, as it is with the F.E.D.F.A. advising, encouraging or inciting its members to impose the ban. As to paragraph 5 of the relief sought in the application, the evidence before me does not disclose anything suggesting the imposition or threatened imposition of a penalty on Mr. Saward. Counsel for the Applicants relied upon what is alleged to have been said by Mr. Saward to the Applicant Medcraft on 13th June 1984 to the effect that the F.E.D.F.A. was telling Mr. Saward to do something, as evidence of the threatened - 24 - imposition of a penalty. In my view, this evidence falls far short of establishing a prima facie case of breach of Section 188(1)(e) of the Act. It appears to me to be extremely doubtful whether the Applicants could succeed with respect to the relief claimed in paragraph 6 of the Application on a final basis, let alone on an interlocutory basis. What is sought appears to me to be an attempt to enforce a term of a contract of employment against an employee, namely that the employee obey all lawful orders of the employer. Although there are circumstances in which equity will restrain a breach of a contract of employment, a court of equity will not grant an injunction which will have the effect of compelling a person to work. Such an order would run counter to all the principles by which courts have declined to force people to enter into or to remain in close working relationships, as well as the principle that a court of equity will mot grant an order that will require constant supervision by the court, or frequent resort to the court for the purpose of determining whether its order has been carried out to the letter, on pain of punishment for contempt. It would be difficult to draft an order of the kind sought in paragraph 6 of the application without enjoining Mr. Saward against terminating his contract of employment in what would otherwise be a lawful way. The possibility would also exist that the Applicants might wish to return to the Court alleging that such an order had not been carried out because Mr. Saward was working too slowly, or failing - 25 - immediately to obey an order of the Company. To these considerations, it is necessary to add the fact that the Applicants are not parties to the contract of employment between the Company and Mr. Saward pursuant to which lawful orders might be given. It would be extraordinary if a stranger to a contract could enforce by injunction an obligation owed by one party to the contract to the other. The relief sought in paragraphs 7 and 8 of the application is based upon the common law actions for interference with the performance of a contract, intimidation and conspiracy. With respect to each of these actions, a real possibility exists that the Respondents would be able to make out at the triala defence on the basis that they are pursuing their own legitimate interests. Such a defence may be a good defence to any of the common law causes of action. In addition, the evidence as to the contractual relations between the Applicants and the Company is too vague to satisfy me that a prima facie case exists as to interference with the performance of any contract. I am not satisfied that the Applicants are not working by reason of any threat made by any of the First, Third, Fourth, Fifth or Sixth Respondents either to the Applicants or to the Company. Evidence of an agreement between those Respondents for the purpose of supporting a claim of conspiracy is lacking at the present time. Insofar as I have been invited by Counsel for the Applicants to draw inferences as to these matters, I do not regard those inferences as appropriate. - 26 - It was also argued that the exercise of the accrued jurisdiction is a matter of discretion, and not of right, and that the Court should not exercise it. That the Court is not obliged to exercise the accrued jurisdiction was said by Barwick C.J. in Philip Morris Incorporated v Adam P. Brown Male Fashions Pty. Ltd. (1981) 148 C.L.R. 457, at page 475, as follows: "This exercise of this jurisdiction, which for want of a better term I shall call "accrued" jurisdiction, is discretionary and not mandatory, though it will be obligatory to exercise the federal jurisdiction which has been attracted in relation to the matter." There is a real possibility that, at the trial, the Court may be persuaded that it should not deal with claims for damages and injunctions based upon the so-called economic torts when its jurisdiction under the Act is invoked. The existence of the economic torts, as developed by the English courts, is arguably related to the history of English legislation dealing with industrial disputes. That legislation has been adopted in some of the States in Australia, but the existence of the Act since 1904, and of legislation setting up the machinery for dealing with industrial disputes by conciliation and arbitration in some States since earlier dates, has made resort to common law actions and the processes of equity unnecessary in the resolution of most industrial disputes. There can be no doubt that the courts of the States have jurisdiction to deal with economic torts, and to grant injunctions restraining their commission. The exercise of that jurisdiction by this Court may be thought to be incompatible with the objects of the Act, especially those expressed in - 27 - paragraphs (a), (b) and (c) of Section 2 of the Act. In addition, so far as the common law relief is concerned, the proceeding may suffer at the present time for want of parties. Each of the applicants has sworn that he is in partnership with his wife. Any cause of action available at common law would be available to the partners, jointly and severally. Whilst the absence of the other partners as applicants does not defeat the proceeding (see Order 6 Rule 7 of the Federal Court Rules), it would be inappropriate for the Court to grant relief of this nature while the risk of a multiplicity of proceedings exists. So far as the specific interlocutory relief sought in the application is concerned, I do not regard the injunctions of the mandatory kinds sought by paragraphs 3 and 4 as appropriate. The injunction which I have framed will, I hope, be sufficient to ensure that the Applicants resume working until the trial of the action. Accordingly, it is unnecessary to consider paragraph 2 of the interlocutory relief sought. As to the balance of convenience, it is clear that the Applicants are suffering substantial and continuing loss by being deprived of work. On the other hand, the F.E.D.F.A. does not appear to be likely to suffer to any great extent by the grant of an interlocutory injunction. Even though it may be pursuing the maintenance of industrial conditions on behalf of its members, - 28 - the grant of a temporary injunction until the trial of the proceeding will not do grave damage in this respect. I have already given directions which, it is hoped, will ensure the early trial of the proceeding. In these circumstances, on balance, an injunction is justified. The form of the injunction is not precisely that sought in the application. It is restricted to enjoining the F.E.D.F.A., by itself, its servants or agents, and does not specifically enjoin any other Respondent. In my view, the position as to the conduct of the other Respondents is adequately catered for by drawing to their attention the terms of the injunction granted.