CATCHWORDS Bankruptcy - Application for extension of bankruptcy notice - Section 41(7) - Insufficiency of affidavit - Occurrence of an act of bankruptcy. Bankruptcy Act 1966, s.40(1)(9g), s.41(6A), 5.41(7). " 2, RE: ROBERT JOHN LAYBUTT AND IRENA LAYBUTT EX PARTE: GEORGE ROBINSON AND PATRICIA LOUISE ROBINSON No. B 2152 of 1985 Burchett J. 17 July 1985 Sydney IN THE FEDERAL COURT OF AUSTRALIA ) ) BANKRUPTCY DISTRICT OF NEW SOUTH WALES ) No. B 2152 of 1985 } ) AND THE AUSTRALIAN CAPITAL TERRITORY RE: ROBERT JOHN LAYBUTT and IRENE LAYBUTT EX PARTE: GEORGE ROBINSON and PATRICIA LOUISE ROBINSON MINUTE OF ORDER Judge Making Order: Burchett J. Date Order made: 17 July 1985 Where made: Sydney THE COURT ORDERED THAT: 1) 2) The application for further extension of time to comply with the bankruptcy notice was refused. An order was made providing for the costs of the creditor in the alternative events of a petition based upon non-compliance with the bankruptcy notice leading to a sequestration order within six months, and this not occurring. NOTE: settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALTA } ) BANKRUPTCY DISTRICT OF NEW SOUTH WALES ) No. B 2152 of 1985 } ) AND THE AUSTRALIAN CAPITAL TERRITORY RB: ROBERT JOHN LAYBUIT and TRENA LAYBUTT EX PARTE: GEORGE ROBINSON and PATRICIA LOUISE ROBINSON EX TEMPORE JUDGMENT BURCHETT J. As the matter is urgent, I will give my decision now. This is an application to extend time for compliance with a bankruptcy notice, pending appeal against a judgment of Beaumont J. determining that he was not satisfied, pursuant to s. 40(1)(g) and s.41(7) of the Bankruptcy Act, that the debtors had a counter claim, set off, or cross demand falling within s. 40(1)(q). Beaumont J. treated the matter as an application to set aside the notice, and granted a 14 day extension to enable the debtors to consider their position. This extension I continued by consent for a further week until today. Beaumont J., in his reasons, doubted the sufficiency of the affidavit, which had been filed on the last day of the period limited by the bankruptcy 2. notice, to comply with s. 41(7), but in any event, having permitted a fresh affidavit filed outside the period to he utilised at the hearing before him, he held that he was not satisfied the debtors in fact had the alleged counter-claim, set off, or cross demand. No other ground of relief was put to Beaumont J. The appellants wish on the appeal to seek to tender fresh evidence, and have filed a further affidavit in this application. They propose to adduce yet further evidence if the facts concerning the claim they propound are relevant. However, there is a difficulty in procuring the swearing of a further affidavit, and I have by agreement of the parties proceeded first to hear argument on the preliminary question whether there is any jurisdiction in the circumstances of this case to grant the relief sought. Mr. Neil, who appears for the debtors, puts his claim on the basis of s. 41(6A) and s. 41(7). It does not seem to me that s. 41(6A) is relevant. The proceedings under appeal were not instituted to set aside the bankruptcy notice, but to have it determined that the debtors had complied with it by satisfying the Court that they had a counter-claim, set off, or cross demand within s. 40(1)(g). The structure of s. 41 distinguishes between such a claim and the claim to set aside a bankruptcy notice. Where a 3. debtor seeks to set up a counter-claim, set off, or cross demand, the provisions of s. 41(7), provided they are complied with, produce an extension by force of the statute. They do not provide for an extension by the Court. The first question is whether the conditions of the statutory extension were met. In my view they were not, and an act of bankruptcy had accordingly occurred before the hearing by Beaumont J. commenced: see James v. Abrahams (1981) 34 A.L.R. 657 at p.665 in the joint judgment of Deane and Lockhart JJ. There are at least two requirements of s.41(7) which were not met in the affidavit filed within the period specified in the bankruptcy notice. Firstly, as Beaumont J. pointed out, that affidavit did not do more than merely assert the existence of a counter-claim, set off, or cross demand. It did not specify the nature or the grounds of that counter-claim, set off, or cross demand. In Re Brink Ex parte Commercial Banking Company of Sydney Limited (1980) 30 A.L.R. 433, a decision which was subsequently approved by the Full Court of this Court in Eastick v. Australia and New Zealand Banking Group Limited (1981) 53 F.L.R. 91, and was applied in Re Racheha Ex parte Antonios, 49 F.L.R. 423, Lockhart J. at p.439 said: "In my opinion the affidavit cannot merely contain an assertion that the debtor has a counter-claim, set-off, or cross demand which 4. he could not have set up in the action in which the judgment or order was obtained. The affidavit must show a counter-clain, set-off or cross demand which equals or exceeds the amount of the judgment debt and which the debtor could not have set up in the action in which the judgment or order was obtained: see Vogwell v. Vogwell (1939) 11 ABC 83, at 85; Ebert's case (1960) 104 C.L.R. 346, at 350; Re Debtor £19351 1 Ch 347, per Slesser Ld at 352." In Eastick's case, to which I have already referred, the joint judgment, after expressing agreement with a passage which it cited from Re Brink at p.95 of the report, included the following comment on the affidavit there under consideration: "Examination of the sworn allegations set out above makes it clear that the appellant... did far more than simply assert that he had a counter-claim, set off, or cross demand of the kind referred to in section 41(7) of the Act." It appears to me that, in the light of the earlier citation of Re Brink, this passage indicates acceptance of Lockhart J.'s view. Secondly, the affidavit did not show that the counter-claim, set off, or cross demand alleged was one that the debtors could not have set up in the action or proceeding in which the judgment or order founding the bankruptcy notice was obtained. It did not show this on its face, and, furthermore, the evidence now adduced does not suggest that the claim was of such a character that it could not have been set up in those proceedings, but rather proffers reasons why it was not set up. In Re Brink at p.437, Lockhart J. said: "The words 'that he could not have set up in the action or proceeding in which the judgment or order was obtained' mean 'which he could not by law set up in the action': See Re Jocumsen (1929) 1 ABC 82 at p.85; Rea Debtor [19141 3 K.B. 726, per Avory J, at 730; Re Stokvis (1934) 7 ABC 53, especially per Lukin J at 57, where his Honour said: 'I take a counter-claim, set-off, or cross demand which could not he set up as _ one which, from point of time, or from its nature, or from absence of empowering provisions, or from positive inhibition so to do, could not be set up in the particular case in which judgment was obtained. ...Mere failure to take advantage of the opportunity can hardly be said to be inability." Having reached a firm conclusion that an act of bankruptcy has already occurred, the time fixed by the bankruptcy notice not having been interrupted by the operation of s.41{7), an issue that Beaumont J. did not find it necessary to decide since he rejected the claim on the merits, I do not think that there is now any basis to grant a further extension of time, and I therefore refuse the application. Dated: Faly, 1496 FEDERAL LAW COURTS MUM *850356* 2488 of 10056 DATACOM INFORMATION SYSTEMS CATCHWORDS Trade Practices - secondary boycott - industrial action - picket line - no employees on picket line ~ dominant purpose of conduct - unrelated to employees' conditions of employment - whether defence under s.45D(3)(b) - injunction granted Trade Practices Act 1974, s. 45D (1), (2) and (3) MUDGINBERRI STATION PTY. LIMITED v. THE AUSTRALASTAN MEAT INDUSTRY EMPLOYEES UNION; JACK O'TOOLE; TREVOR SURPLICE; DICK ANNEAR; PAT ROUGHAN; MEAT INSPECTORS ASSOCIATION; GORDON McCOLL; ALEX THOMPSON No. G 123 of 1985 ¢ - aN ° i" Site Morling 7. . iy "Se 12 July 1985 = Le eee . Darwin LNCS ra - wo, "Limp re "ye {a { \ IN THE FEDERAL COURT OF AUSTRALTA | NEW SOUTH WALES DISTRICT REGISTRY No. G123 of 1985 wes we GENERAL DIVISION \ BETWEEN : MUDGINBERRI STATION PTY. LIMITED Applicant AND; THE AUSTRALASTAN MEAT INDUSTRY EMPLOYEES UNION ! First Respondent AND: JACK 0' TOOLE Second Respondent AND: TREVOR SURPLICE ' Third Respondent AND: DICK ANNEAR Fourth Respondent AND: PAT ROUGHAN Fifth Respondent AND: MEAT INSPECTORS ASSOCIATION Sixth Respondent AND: GORDON McCOLL Seventh Respondent AND: ALEX THOMPSON Eighth Respondent MINUTES OF ORDER JUDGE MAKING ORDER : Morling J. DATE OF ORDER : 12 July 1985 WHERE MADE : Darwin THE COURT ORDERS AS FOLLOWS: That the first, second, third, fourth and fifth respondents and each of them be restrained by themselves, their servants and agents from imposing, maintaining, giving effect to or enforcing any ban on the provision of goods or services to the applicant at the Mudginberri Abattoirs ("the abattoirs") or from setting up or maintaining any picket line at or in the vicinity of the abattoirs where any such ban or picket line has as one of its purposes and would have or be likely to have the effect of preventing or hindering the ordinary day to day activities and operations of the abattoirs business including: (a) the carrying out of works of maintenance and repair at the abattoirs; (b) the delivery of any livestock for slaughter and processing; (c) the access to and egress from the abattoir of any person or persons providing goods or services to the abattoirs or otherwise involved or engaged in its ordinary day to day activities in the conduct of its business as an export meat processing works and an abattoir licensed to process and export meat from Australia; 3. (d) the egress from the abattoirs of any product of the abattoirs; (e) the sale of any processes products or by-products of the abattoirs (all hereinafter called "the conduct"). 2. That the first, second, third, fourth and fifth respondents and each of them 'be restrained by themselves, their servants and agents from (a) aiding, abetting, counselling or procuring any person or persons to engage in ~ the aforesaid conduct; Lo ' (b) inducing or attempting to induce a person or persons whether by threat promises or otherwise to engage in the aforesaid conduct; (¢c) being in any way e1lther directly or indirectly knowingly concerned in or party to engagement in the aforesaid conduct; (d) conspiring with any other person or persons to engage in the aforesaid conduct. Note: vf That upon this order coming into operation this day the interim injunction granted by Mr Justice Beaumont on 12 July 1985 be dissolved. That the first, second, third, fourth and fifth respondents pay the costs of the applicant of and incidental to this appliction for injunctive relief including reserved costs and the costs of the interlocutory application. That the applicant's claim for damages against the respondents be stood over generally with all costs in this connection reserved and with liberty reserved to the applicant to restore this claim against all or any "hs of the respondents on seven days notice. ~ That all parties have liberty to restore the matter to the list on two days notice. = Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules ee el eR es ce IN THE FEDERAL COURT OF AUSTRALIA No. G123 of 1985 NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISTON BETWEEN ; Morling J. The applicant, conducts an abattoir MUDGINBERRI STATION PLY. LIMITED Applicant THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION First Respondent JACK O'TOOLE Second Respondent TREVOR SURPLICE Third Respondent DICK ANNEAR Fourth Respondent PAT ROUGHAN Fifth Respondent MEAT INSPECTORS ASSOCIATION Sixth Respondent GORDON- McCOLL ' Seventh Respondent ALEX THOMPSON Bighth Respondent 12 July 1985 REASONS FOR JUDGMENT Mudginberri Station Pty. Limited, and export meat processing works at Mudginberri Station near Jabiru, approximately 200 kilometres east of Darwin. Its operations include the slaughter, sale and export of cattle and buffalo. It holds a licence under the relevant leqislation permitting it to process and export meat from Australia. Most of the output from the abattoir is sold in overseas markets, The applicant seeks injunctions to restrain alleged contraventions by the respondents of s.45D of the Trade Practices Act 1974 ("the Act"). It alleges that since 10 May 1985 its Mudginberri abattoir has been the subject of a secondary boycott in the form of a picket line organized by the first respondent, The Australasian Meat Industry Employees Union ("the union"), an organization of employees registered under the Conciliation and Arbitration Act 1904. It is alleged that the second, third, fourth, and fifth respondents, who are officers of the union, are participating in the picket. The second respondent, Mr Jack O'Toole, is the federal secretary of the union. The third respondent, Me Trevor Surplice, is an organizer for the union based in the Northern Territory. The fourth 'respondent, Mr Dick Annear, is the federal president of the union and the secretary of its Queensland branch. The fifth respondent,'Mr Pat Roughan, is a national organizer for the union. The applicant further claims tht the Meat Inspectors Assocition ("MIA"), another registered organization of employees, and two of its officers, Mr Gordon McColl and Mr Alex Thompson, are also participating in the boycott. The MIA and Messrs. McColl and Thompson are the sixth, seventh and eighth respondents respectively. The proceedings against these respondents have been stood over and no relief is presently sought against them. Because of climatic conditions, operations at the abattoir are confined to the months from May to November. Prior to 1984 the majority of the workers at the abattoir were members of the union. Their present membership status appears to be a matter of contention, but according to Mr John Pendarvis, the applicant's managing director, the members of the union employed by his company were expelled from the union in 1984 because of their unwillingness to join in an industrial ban then placed upon the applicant by the union. In June 1984 the union set up a picket line on the road leading to Mudginberri Station. Becausé of the picket, members of the MIA refused to.enter the premises to perform their inspection duties and, as a& result, production at the abattoir ceased. Subsequently, in July 1984, the applicant sought and obtained from this Court orders, under s.45D of the Act. According to Mr Pendarvis, who I find to be a reliable witness, he explored with Mr O'Toole the possibility of resolving the dispute between the applicant and the union. The dispute arose out of the union's claim that employees at Mudginberri should be paid in accordance with a wage system which can conveniently be described as the "tally system". In 1984 the applicant did not employ labour itself, but engaged 4. contractors who, in turn, hired workmen to carry out work at the abattoir. The tally system is the basis of payment of meat workers under some State awards, including awards made in Queensland and Western Australia. According to Mr Pendarvis, Mr O'Toole told him in 1984 that the applicant must accept the tally system as prescribed in the Queensland Meat Industry Award and that if it did not then the abattoir would not be allowed to open. After the orders were made by this Court in July 1984 the picket line was disbanded. Subsequently the Conciliation and Arbitration Commission heard an application by the union for an award to cover meat industry employees in the Northern Territory. In its submissions to the Commission the union pressed for the adoption of the tally system of remuneration as the basis of payment for meat workers. The résponents to the application before the Commission opposed the adoption of that systen. They sought the retention of the system by which meat workers at Mudginberri and other abattoirs in the Northern Territory had for many years been remunerated according to their productivity. This method was, in effect, a method of payment by results. On 29 April 1985, the Commission handed down the Northern Territory Meat Workers Award. . The award came in to force on 2 May 1985. It did not adopt the tally system as the basis for the remuneration of workers covered by the award, but aerensien en ee 5. instead adopted a provision enabling the usc, on certain conditions, of a system of payment by results. It is convenient to refer to this latter system as the "productivity system". Pursuant to cl1.33 of the award it was provided that the system of payment by results should be such as to enable a weekly employee to earn no less for the work actually performed than the remuneration that he would otherwise be entitled to receive under the award, plus twenty percent. It was provided that the terms of any such system should be established by negotiation and agreement between the employer and the majority of employees concerned, or their nominated representatives. Shortly after the making of the award, the applicant negotiated an agreement with its employees in accordance with c1.33 of the award. The employees were not represented in the negotiations by the union. The agreement "was reduced to writing and appears to have been signed by each employee before bon, commencing work. On 9 May 1985 the applicant commenced its operations at Mudginberri for the 1985 season. The following day the picket line was 'established and has since been maintained. The first five respondents do not dispute that the first respondent was instrumental in organizing the picket line and continues to be responsible for maintaining it. Nor do they dispute that the second, third, fourth and fifth respondents are all taking a part in the maintenance of the line. lt fon) The effect of the picket lines was to shut down the applicant's export operations. There is evidence, which I accept, that the shut down has caused and is causing the applicant substantial losses. Meat may not be exported unless it has first been inspected by appropriately qualified meat inspectors, It is the responsibility of the Department of Primary Industry to allocate inspectors to the Mudginberri abattoir. Three meat inspectors have been assigned to it. The evidence established that the inspectors have declined to cross the Picket line. There is evidence, which I accept, that Mr Roughan told one inspector that, if necessary, physical force would be used to prevent inspectors working if they crossed the picket line. There is also evidence, which I accept, that the transport of goods to the abattoir has been impeded because of the picket line. In the last few weeks the applicant has been able to carry on limited operations at the abattoir by producing meat for the domestic market but I am satisfied that it is still suffering continuing loss and damage to its business. I am satisfied on the evidence that the applicant has made out a case that the first, second, third, fourth and fifth respondents are engaging in conduct proscribed by sub-s.45D(1) of the Act. The evidence establishes quite clearly that those respondents are, in concert with each other, engaging in conduct that hinders or prevents the supply of services by the meat inspectors to the applicant, and that such conduct is as engaged in for the purpose and is likely to nave the effect of causing substantial loss or damage to the applicant's business. Indeed, although no formal admissions were made, it was all but conceded by counsel for the respondents that the evidence established a breach of sub-s.45D(1). However she argued that the evidence established that the conduct engaged in by the respondents was engaged in for the ultimate purpose of achieving the adoption by the applicant of the tally system. This is not an answer to the applicant's claim, since it is the immediate, and not the ultimate, purpose of conduct whfch is relevant for the purposes of sub-s. 45D(1) - see Barnevs Blu-Crete Pty. Ltd. v A.W.U. (1979) 43 FLR 463 at 473 per Northrop J. In any event it is plain that one of the purposes for which the respondents have mounted and are maintaining the picket line is to shut down the applicant's business and since that would inevitably cause substantial loss and damage to that business that is sufficient for the purposes of the sub-section - see sub-s, 45D(2). The real issue in the case is whether the respondents' conduct is protected by sub-s.45D(3) which relevantly provides as follows: "RK person shall not be taken to contravene, or to be involved in a contravention of sub-section (1) or (1A) by engaging in conduct where - 8. (b) in the case of conduct engaged in by the following persons in concert with each other (and not in concert with any other person), that is to say - (i) an organization or organizations of employees, or an officer or officers of such an organization, or both such an organization or organiz- ations and such an officer or officers; and (ii) an employee, or two or more employees who are employed by the one employer, the dominant purpose for which the conduct is engaged in is substantially related to - (1ii) the remuneration, conditions of employment, hours of work or working conditions of the employee, or of any of the employees, referred to in sub-paragraph (ii); (iv) the employer of the employee, or of the employees, referred to in sub-paragraph (iL) having terminated, or taken action to terminate, the employment of any of his employees." x The respondents argue that a defence under sub-s.45D(3) is made out because the evidence establishes that they have engaged and are engaging in conduct in concert with some of the applicant's employees, the dominant purpose of which conduct was and is substantially related to the remuneration, conditions of employment or working conditions of those employees. In support of their case the respondents called three of the applicant's former employees. Mr Victor Liddy was formerly a slaughterman employed at Mudginberri. He said that he commenced work on 93 May and that on 10 May Mr Roughan came to the abattoir and talked with the men. vr} 9. Thereafter he did not work again. After Mr Roughan's talk he said he went down to the picket line and "talked a few things out". He also said: "I just went down to talk to the boys and had a few drinks". He seems to have stayed on the picket line for a night anda day and he then left. He did not return to the line, save on one occasion when, about a week later, he paid a visit to Mudginberri Station to see some friends. His visit to the picket line on that occasion appears to have been brief. He said that he understood that the purpose of the picket line was "to get money for us" and that he supported it. Mr Laurence Payne was engaged to work in the boning room at the abattoir. In the events that happened he did not, in fact, commence work. He refused to work because, as he said, he would never cross a picket line. I think it is a fair inference from his evidence that at the time the picket line was first put in place he did not know what it was designed to achieve. He said that Mr Roughan explained to the men what the purpose of the line was. Mr Payne spent only a day and a night on the picket line. This was shortly after 10 May and he has not been back to Mudginberri since then. Before agreeing to work for the applicant, both Messrs Liddy and Payne. signed employment agreements the form of which had been negotiated between the applicant and representatives of the abattoir employees. The agreements provided for the 10. calculation of wages on the productivity system rather than the tally system. Neither Mr Liddy nor Mr Payne had any clear idea of what the differences, 1f any, in their pay packets or conditions of employment would have been had they been employed on the tally system. Mr Robert Byrne was the manager of the Mudginberri abattoir. He was engaged at a salary of 540,000 per annum and did not sign the same form of contract signed by the other workers. After the picket line effectively shut down operations at the abattoir and until 18 June he lived on Mudginberri Station. 'He then went to live with friends in Darwin, where he still appears to reside. However, about nine days prior to the final hearing which commenced in Darwin on 9 duly, he visited the picket line and remained_ there for five days. He denied that anybody had suggested that he should join the picket line but admitted that a few days before the hearing commenced in Darwin he had told Mr Larry Tomes: "I have been shanghaied by Pat Roughan". He said that he did not mean to convey by this statement that Mr Roughan had pressed him to go on the picket line, but rather that Mr Roughan had offered him transport to Mudginberri. He explained his Presence on the picket line by saying that he went to see Mr Roughan at Berrimah Hotel and expressed a desire to go on the picket line. When called as a witness and asked to give his address, he gave it as "the Mudginberri pickat line". To say the least, this was misleading. ll. Mr Byrne's evidence was contradicted in some important respects by Mr Tomes. He gave evidence that on 4 July he spoke to Mr Byrne at the Jabiru Social Club and that Mr Byrne said: "I was shanghaied by Pat Roughan from Darwin to join the picket line. Iwas told that if I did not join the picket line I would not get another job in the meéat industry in Australia." Mr Roughan was called to deny that he had ever told Byrne that he would not get another job in the meat industry if he failed to join the picket line. However, I think the evidence establishes that employees, or former employees, at Mudginberri abattoir who do not support the picket line will be at grave risk in obtaining future employment in the meat industry. In June 1985 the first respondent published a "Special Federal Newsletter" in which an item headed "Pickets at Mudginberri Station Pty Ltd" appeared. The text of the "item was as follows: - at "For some time now, the Queensland branch and the Federal Office have had a picket line in place at Mudginberri. . The following have crcessed the packet line and are working there. They have been expelled rrom the union." After listing the names of 22 men, the item continued: "They have signed statements that support the boss of Mudginberri in his action against the union under the Trade Practices Act. Their suprort for the boss could assist in the union being fined up to a quarter of a million dollars and have our Picketers and Trevor Surplice, the organiser for the Territory, jJalled. The Queensland Branch cecretary, Comrade Anear, alone with Comrade 12. o'Toole, Federal Secretary, could also be jailed, as well as the union's finances confiscated or impounded to pay costs, etc." When asked whether a person who was expelled from the union would be likely to get another job in the meat industry in Australia, Mr Roughan said that that would "depend on the circumstances". I prefer Mr Tomes' account of his conversation with Mr Byrne to Mr Byrne's recollection of it. Some attempt was made to show that Mr Tomes had an interest in supporting the applicant's case, but I do not think this attempt succeeded. On the other hand, Mr Byrne does have a substantial interest in Maintaining good relations with the first respondent and its officers. Moreover, his own statement that Mr Roughan had ""shanghaied" him to go to the picket line seems_consistent with some form of persuasion by Mr Roughan. I have formed the view that the witnesses called by the respondents are all loyal unionists who are anxious to assist the respondents' case . However, r do not accept that any of them have any real commitment to the picket line. The visits to the line by Messrs Liddy and Payne were little more than transitory social visits and I am left with the firm impression that Mr Byrne's visit to the line is explained by the imminence of the litigation and his not unnatural desire to Maintain good relations with the first respondent so as to protect his future employment in the industry. Mr Roughan was 13. frank enough to admit that Mr Byrne's visit to the IJl:ine was arranged for the purpose of lending strength to the union's case at the hearing. I do not criticize Messrs Roughan and Byrne for making the arrangements which led to the latter's presence on the picket line, but Mr Byrne's actions do not persuade me that he has any real desire to support the line. Nor do they persuade me that his purpose in joining it was for any purpose related to the remuneration or conditions of employment of the applicant's employees. It is not without significance that none of the officers of the union gave evidence as to why the picket line _was set up and is being maintained. Nor is there any real evidence as to what was said by Mr Roughan to the meetings of the men at Mudginberri when the picket was first put in place. There is no evidence that an explanation was given to the men as to what differences in their remuneration, conditions of employment, hours of work or working conditions would result from the adoption of the tally sytem. It is quite clear that the witnesses called by the respondents have only the haziest, if any, ideas on these matters. It is also clear that the union and its officials set up the picket line before consulting the employees at the abattoir. Moreover, there is a dearth of evidence that, after the picket line was set up, there was any meaningful discussion between the union officers and the employees as to the relative advantages which would accrue to the men under the tally and productivity systems respectively. 14. On the other hand there is persuasive evidence that the dominant purpose of the conduct engaged in by the respondents was to bring about a situation where the tally system applied in all abattoirs in the Northern Territory. In the proceedings before the Conciliation and Arbitration Commission leading up to the making of the award, the union opposed the productivity system and pressed the Commission to include the tally system in the award as the basis for the payment of wages. At a compulsory conference held in the Commission before Mr Deputy President Keogh on 3 June 1985 to discuss the Mudginberri . dispute, Mr O'Toole referred to the union's continuing efforts that work loads in the Northern Territory should be "consistent with schedule tallies throughout the state and federal awards". After referring to the fact that the union had manned picket lines at Mudginberri, Victoria Valley and Alice Springs, he said that the union was pursuing its actions "to ensure that the employment of our members in the Territory is consistent with that of their fellow workers in other parts of the Territory and the country". As early as July 1984, Mr O'Toole had told Mr Pendarvis that 1f the applicant could not accept the Queensland Meat Industry Award "you won't be allowed to open". In September 1984 and April 1985 Mr Pendarvis was told by the third respondent that the union wanted the tally system in spite -of anything which might be awarded by the Commission. is. It 1s to ce observed that in the union's "Special Federal Newsletter" the item relating to the applicant commences with the words: "For some time now the Queensland branch and the Federal Office have had a picket line in place at Mudginberri". No reference is made to the applicant's employees taking part in the picket line. Indeed, the reference in the article to the long list of employees who have been expelled from the union adds emphasis to the fact that the picket line is, in truth, organized and maintained by the union on its own initiative without reference to the applicant's employees and is unrelated to their particular wishes or interests. In my opinion the evidence leads to the irresistible inference that the real reason why the picket line is being maintained is unrelated to the remuneration, conditions of employment, hours of work of working conditions of the applicant's employees, It is related to the general policy of the union that all meat workers in the Northern Territory should be paid according to the tally system notwithstanding the terms of the award handed down on 20 April 1985. The absence of any general support for the picket line from the Mudginberri workers and the lack of evidence that their remuneration or conditions of employment would be improved if the tally system were adopted confirms me in this opinion. 16. The cc:siderations to which I have so far adverted lead me to the view that, all other considerations apart, the respondents' conduct is not protected by sub-s.45D(3) because the dominant purpose for which the conduct is being engaged in 13 not substantially related to the remuneration, conditions of employment, hours of work or working conditions of any of the applicant's employees. I am further of the opinion that the evidence does not establish that the conduct presently engaged in by the respondents, and which the applicant seeks to enjoin, is being engaged in by them an concert with any of the applicant's employees. The respondents claim that they are acting in concert with Messrs Liddy, Payne and Byrne. I do not think that any of these persons are, in any real sense, acting in concert with the respondents. So far as Messrs Liddy and Payne are concerned, their attendance on the picket line was transient and, for present purposes, was remote in point of time. Counsel for the respondents contended that because they said in evidence that they support the picket line, they should be regarded as still acting in concert with the respondents. But when cheir conduct is looked at in its entirety, it does not support the respondents' case that, at the present time, they are acting in concert with the respondents. They have each taken employment elsewhere and have not even visited Mudginberri, let alone taken a part in the picket line, since about the middle of May. In these circumstances I think it 17. would be unrealistic to treat them as presently acting in concert with the respondents if, indeed, they ever did. As to Mr Byrne, I think his attendance on the picket line was contrived so as to give the appearance of substance to the defence sought to be raised by the respondents that they were acting in concert with the applicant's employees. There is no credible evidence that Mr Byrne's salary or working conditions would be affected by the introduction of the tally system. Although he was living on Mudginberri Station for some four or five weeks after the picket line was set up, he took no part in it. As appears from the evidence to which I have already referred, his presence on the picket line fora few days is explained by his belief that it would assist the respondents in this case. Mr Tomes' evidence, and Mr Byrne's own statement that he was "shanghaied" to go on the picket line, lead me to the view that he is not, in any realistic or voluntary sense, acting in concert with the respondents. Huis brief and belated attendance on the line was no more than a colourable attempt to establish that he was acting in concert with the respondents. Sub-section 45D(3) is, in substance an exception or a ground of defeasance to the liability otherwise attaching to conduct proscribed by sub-s.45D(1) and hence the respondents carry the onus of establishing the facts necessary to make out their case that the conduct in which they are 18. engaging 15 protected by sub-s.45D(3). See Vines v Dijordjevitch (1955) 91 CLR 512 at p. 519; Nominal Defendant v Dunstan (1963) 1039 CLR 143 at p.1i50 and Trade Practices Commission v Guests' Garage Pty. Ltd. (1976) 26 FLR 433. The respondents have not discharged that onus. Counsel for the applicant argued that, on the facts of the present case, the respondents were not entitled to the protection which might otherwise have been afforded to them by sub-s.45D(3) because Messrs Liddy, Payne and Byrne had ceased to be employees of the applicant. They argued that the reference in para. 45D(3)(b)(ii) to "an employee, or two or more employees who are employed by the one employer" is to employees who are employed at the time when the conduct complained of takes place. They submitted that the applicant's case is that the picket line is presently being maintained and that Messrs Liddy, Payne and Byrne are not presently employed by the applicant. Counsel for the respondents argued that there was no evidence that Messrs Liddy, Payne and Byrne had left their employment with the applicant, but I reject that submission. There is evidence that Liddy and Payne have taken up other employment and Byrne said that he gave up his employment with the applicant about a month go. In any event, since the respondents carry the onus of proof on this issue, the absence of any evidence on the point would not assist them. However, ig. J counsel for the 'vesspondents relied upon amore substantial argument. She arcued that it cannot have been the intention of the leqislature that an employer, by dismissing all of his employees, could put it outside their power to act in concert with their union and its officers and thus deprive them of the protection which they would otherise have under sub-s.45D(3) of the Act. The argument gathers strength from the presence in the sub-section of para. (b)(iv). It can hardly have been intended by the legislature that the object of para. (b)(iv) could be entirely defeated by the employer taking unilateral action to dismiss ail his employees. Paragraph (b} (iv) must have been intended to give protection to a union and its officials who take action in concert with former employees who have been dismissed. Employees themselves would appear to be protected by para. (a)(11). Counsel submitted that the employees would only get the protection of para. (a) (44) if they could establish that the picket, although originally imposed for one of the purposes referred to in para. (b)(iii) or (iv), was being maintained for the purpose referred to in para. (a)(21). I donot think this would present any real agifficulty to employees seeking to avail themselves of the benefit of the paragraph. However, I do not think the respondents' argument can Be pushed to covér a situation where employees voluntarily leave their employment. If that were so, absurd results would co. - follow. For instance, if Messrs Liddy, Payne ana Byrne (having voluntarily left their employment with the applicant) were to leave the meat industry permanently and take up different employment or retire from work altogether, could they still be said to be employed by the applicant? I think not. I think para. (b)(ii) extends to persons whose employment has been terminated by their employer, but not to persons who have voluntarily given up their employment. It would be surprising if the protection afforded by para. (b)(ii) subsisted after a person voluntarily ceased to be employed by his employer. The purpose of para. (b)(iii) is to give protection to persons who are engaging in conduct the dominant purpose of which is substantially related to the remuneration and conditions of employment of employees of an employer against whom the -conduct is directed. There is no suggestion in the present case that the applicant has taken any action to terminate the employment of any of its employees. Thus, even if the respondents had otherwise made out their case under the sub-section, I think it would have failed because of the fact that Messrs Liddy, Payne and Byrne have voluntarily severed their employment with the applicant. Counsel for the applicant relied upon a further argument that sub-s.45D(3) was not availible to the respondents because there was evidence that they had acted in concert with persons other than Messrs Liddy, Payne and Byrne. The evidence 21. establishes beyvan: any doubt that other members of the union who have never been employed at Mudginberri have been on the picket line from time to time. Thus, so it is argued, the respondents cannot make out a defence under para. (b) because they cannot prove that they have not acted in concert with persons other than the applicant's employees. Counsel for the respondents argued that since the non-Mudginberri employee picketers were all members of the union, they should he regarded as representing the union on the picket line and should be treated as part of the "organisation of employees" referred to in para. (b}(i). I do not determine this point as 1t is unnecessary to do so for the purpose of determining the application. There being no reason why, in the exercise of my discretion, I should refuse .to grant relief to the applicant, I make the following orders: 1. That the first, second, third, fourth and fifth respondents and each of them ~ be restrained by themselves, their servants and agents from imposing, maintaining, giving effect to or enforcing any ban on the provision of goods or services to the applicant at the Mudginberri Abattoirs ("the abattoars") or from setting up or maintaining any picket line at or in the vicinity of the abattoirs where any such ban or picket line has as one of its purposes and would have or be to Ww -ikely to have the effect of sreventing or hindering the ordinary day to day activities and operations of the abattoirs business including: (a) (b) (ce) ce) the carrying out of works of maintenance and repair at the abattoirs; the delivery of any livestock for slaughter and processing; the access to and egress from the abattoir of any person or persons providing goods or services to the abattoirs or otherwise involved or engaged in its ordinary day to day activities in the conduct of its business as an export meat processing works and an abattoir licensed to process and export meat from Australia; the egress from the abattoirs of any product of the abattoirs; the sale of any processes products or by-products of the abattoirs tall hereinafter called "the conduct"). 23. 2. That the first, second, third, fourth and fifth respondents and each of them be restrained by themselves, their servants and agents from (a) aiding, abetting, counselling or procuring any person or persons to engage in the aforesaid conduct; {b) inducing or attempting to induce a person or persons whether by threat promises or otherwise to engage in the aforesaid conduct; (c) being in any way either directly or indirectly knowingly concerned in or party to engagement in the aforesaid conduct; (d) conspiring with any other person or persons to engage in the aforesaid conduct. That upon this order coming into operation this day the interim injunction granted by Mr Justice Beaumont on 12 July 1985 be dissolved. That the first, second, third, fourth and fifth respondents pay the costs of the applicant of and incidental to this appliction for injunctive relief including reserved costs and the costs of the interlocutory arxslicaticsn. 5. 24. That the applicant's claim for damages against the respondents be stood over generally with all casts in this connection reserved and with liberty reserved to the applicant to restore this claim against all or any of the respondents on seven days notice. That all parties have liberty to restore the matter to the list on two days notice. Tcertafy tniwi.isandie 23 recy Precuy 13 ales ae & Tue co ~y of the \ : enG-S Gere. <. it hercin of his Honour hr. Justice luorling, fown yh Askbociate Dated: 26)2]}gs