RECEIVED 'eS 15 MAY 1986 = PIDERAL COUNT OF AUBIT A PRINZ ingy Besar IN THE FEDERAL COURT OF AUSTRALIA "is. _. "<\ > NEW SOUTH WALES DISTRICT REGISTRY i nn GENERAL DIVISION No. G164 of 1986 IN THE MATTER of the Trade Practices Act 1974 BETWEEN : John Thomas Roberts Applicant AND: Murlar Pty Limited First Respondent The Building Workers' Industrial Union of Australia Second Respondent Mario Alberic1 Third Respondent Lew Zivanovich Fourth Respondent CORAM Evatt J. 5 May 1986 REASONS FOR EXTEMPORE JUDGMENT On 30 April 1986, the applicant, John Thomas Roberts sought ex parte orders under the rules of court abridging time for a directions hearing of the application and statement of claim filed herein and for the hearing of his claim for interlocutory relief therein referred to. ta The Court being satisfied that those hearings should he expedited, ordered that the matter he [faxed for directions 9.30 amon Friday, 2 May 1986 and that the claim for interlocutory relief be then heard. Orders as to service and the fixina of that date for the return date of subpoenas were also made. In brief the application and statement of claim herein alleged a contravention by the first-named respondent being the employer of the applicant and the second-named respondent, namely the Building Workers' Industrial Union of Australia (BWIU)., an organisation registered under the Conciliation and Arbitration Act 1904 of paragraph 45E(1)(c) of the Trade Practices Act 1974 (the Act). It 13 claimed that the third-named respondent holds an official position within the BWIU and was its job steward at the applicant's place of employment. The fourth-named respondent is the person whom it 1s claimed gave directions on behalf of the employer to the applicant as to the work he was required to do at his place of work. Section 45E(1)(c) reads: Subject to this section, a person who has been accustomed or was under an obligation, to supply goods or services to, or to acquire goods or services from, a second person shall not make a contract or arrangement, or arrive at an understanding, with a third person (being an organisation of employees, an officer of such an orqanisation, or another person acting for or on behalf of such an oraanisation or officer) if the proposed contract, arrangement or understanding contains a provision that - ic) has the purpose of preventing or hindering the first-mentioned person from acquiring or continuing to acquire such goods or services to a condition (not being a condition to which the acquisition of such goods or services by the first-mentioned person from the second person has previously been subject to reason of a contract existing between those persons) as to the persons to whom, as to the manner in which, or as to the terms on which. the second person may supply any goods or services. When the matter was called on at 9.30 amon Friday, 2 May, Mr Oslington of Queen's Counsel with Mr Haylen of Counsel appeared for the applicant; Mr Rothman of Counsel instructed by Taylor and Scott appeared for the BWIU and the third-named respondent, Mario. That is how the third-named respondent appears in the heading to the proceedings, or then appeared, and as he was ceferred to in the affidavit filed in support of the statement of clain. Mr Rothman indicated to the court that Mario's surname was Alberici and that he was the job steward for the BWIU at the relevant construction jov at Surry Hills. Sydney, where the first-named respondent through its firm Alpine Erections was performing certain building work which included the work which the applicant had been employed to perform for the past six weeks. Such work included certain rigging and scaffolding. Mr Driver of Counsel, instructed by Benjafield Coyle and Shanahan, appeared for the fourth-named respondent, Mr Lew Zivanovich. There being no appearance by or on behalf of the first-named respondent company, affidavits were tendered on behalf of the applicant proving service of the application and statement of claim as ordered. at the registered office of that company as appearing in Corporate Affairs documents. In this regard, it is noted that during the hearing the applicant called on subpoena (for the production of documents) the Proper Officer, Cadophone _ Pty Limited, 11 Ixion Street. Winston Hills, that being the address of the first-named respondent as shown on the Corporate Affairs documents which were tendered before the Court. That call on subpoena was answered by the fourth respondent, Mr Lew Zivanovich. He indicated, inter alia: (1) that he was the managing director of that company and that he had not received documents in his capacity as the managing director; (2) that the address shown in the Corporate Affairs document as being the registered office of the company was the home of a director of the company who was then, he thought, overseas on holidays; and (3) that he had spoken to the solicitor for the first respondent company about the matter as he understood it from the papers which had been served on him in his personal capacity as the fourth-named respondent. The Court. having taken appearances. then indicated that it would hear the applicant's application for interlocutory relief referred to in the statement of claim. Mr Rothman then sought to move the court on a preliminary point of law, namely that the documents as filed disclosed no cause ef action. This application was deferred until the hearing of the application for interlocutory relief. It appears from the statement of claim and the affidavit of the applicant filed in support, that the applicant 13 and has been for some years a certificated rigger and dogman, that he had worked as a rigger and scaffolder in the building industry for gzome 3ix years and has been employed in that capacity for Alpine Erections for the past 14 months, Mr Lew Zivanovich being the person connected with Alpine Erections who normally told him what work he was required to do. During all relevant times the applicant has been a member of the Australian Building Construction Employees' and Builders Labourers' Federation (the BLF); that he was not a member of the BWIU nor did he wish to become a member of that organization: that on 28 April last he was directed to attend at the office of his employer at Rydalmere and there to speak to Mr Zivanovich. This he did. He deposes to the following conversations and circumstances: 6. I went to that office (that is the office at Rydalmere) and saw Lew Zivanovich at about 9.00 ot 9.15 am. I then hada conversation with Mr Zivanovich to the followina effect: Zivanovich: "I want you to sian this form". He then handed me the documents marked C (being the resiaqnation from the Australian Building Construction Employees' and Builders Labourers' Federation) and the document annexed and marked Dl and D2 (D2 being the reverse gide of Dl) which was an application to become a member of the Building Workers' Industrial Union of Australia. "Tf you do not sign these documents you will be out on the road. You will be finished". I then filled out the documents in the presence of Mr Zivanovich and I said to Mr Zivanovich words to the effect, "We do not have the money on us to pay the dues, can we pay out of our next wages?" Mr Zivanovich replied words to the effect, "Yes that is okay". When I filled out the documents I handed them to a girl sitting behind a desk at the Rydalmere office and the girl behind the desk in the presence of Mr Zivanovich said words to the effect. "You will have to qive me your BLF ticket". Mr Zivanovich then said, "No ticket, no start. If you do not hand your ticket over you won't work". Thereafter the applicant returned to the job site at Surry Hills and spoke with the third-named respondent. Mr Alberici as follows: (this conversation is set out in paragraph 9 of the applicant's affidavit). The applicant said: "Lew said he will not let us back on the site unless we hand in our BLF tickets". Mario (that is the third-named respondent) said: "It is okay to resume work, I do not care how many unions anyone is in provided one of those unions is the BWIU." The applicant then phoned Mr Zivanovich at Rydalmere, from Surry Hills, and spoke with Mr Zivanovich as follows: I said, "Mario said it is okay to work". Givanovich said: "you are not allowed to resume work because you have not handed your tickets over, you will have to get a clearance from Don McDonald at the BWIU". It is understood that Mr McDonald is the NSW State Secretary of the respondent, BWIU. The applicant in his affidavit then proceeds to say that later that afternoon he again telephoned Mr Zivanovich and during that conversation Mr Zivanovich said to him words to the effect that: "IT have spoken to Don McDonald and he says you are not to go back on site; no ticket, no start". The applicant in his affidavit then deposes as to his financial position and in particular as to his dependence upon his weekly income to make certain mortgage payments on his house. Then in paragraph 14 of his affidavit he states that he did not wish to resian from the BLF and join the BWIU and "I only completed and signed the documents marked C and D (that is the resiqnation from the BLF and the application for joining the BWIU) because Mr Zivanovich said that I would not be allowed to work if I did not do so." Further. paragraph 15 of the affidavit shows that Mr sivanovich's request to complete the various forms referred to above was not confined to the applicant alone. There were some three other members of the BLF with him at the time who were similarly requested to complete similar forms. During submissions and arguments as to the aranting of the interim relief Mr Oslinaton indicated that his then instructions were to seek the interlocutory relief as sought in paragraphs B, E and F of the prayers for relief as set out in the statement of claim against the first-named respondent only. Paraphrasing those prayers or paragraphs, the relief sought was first that the first-named respondent, that is CadophonePty Limited trading as Alpine Erections, continue to employ the applicant without imposig the conditions referred to above. Secondly, that that particular respondent cease making the said arrangement or arriving at undertakings to the effect of those arrangements or understandings referred to above and thirdly, that the first respondent cease and desist from putting into effect or acting Aad upon those said arrangements or understandings. Having heard submissions as to interim relief. the court indicated that it would then hear Mr Rothman as to his preliminary point of law (see order 20 rule 2 of the Rules of Court). He submitted that accepting for the purposes of the submission, the truth of the facts disclose that the "services" referred to in 45E (1)(c) which the first respondent. that is the employer had been accustomed to acquire from a second person, namely the applicant, Mr Roberts, were but the performance of work under a contract of service and that that being so, were, by definition (that is, 3.4 of the Act) excluded from the meaning of "services" as defined. Further he submitted that "services" as used in paragraph 45E(1)(c) was the defined meaning. "Services" is defined, for relevant purposes, in s.4(1) as including: "Any rights ... benefits, privileges or facilities that are, or are to be. provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges or 10. facilities that are or are to be provided. granted or conferred under - (a) A contract for or in relation to: (iL) The performance of work ... but does not include rights or benefits being the performance of work under a contract of service". Accordingly Mr Rothman submitted that there could be no arrangement or understanding between the employer, the first-named respondent on the one hand and his clients, that is the BWIU and Mr Alberici on the other hand which could have affected the acquisition of services as referred to in s.45E by the employer from the applicant. Those clients, being the organisation of employees and another person acting for or on behalf of that orqanisation. were the "third person" as referred to in the section. Mr Driver adopted Mr Rothman's submissions. On the other hand. Mr Oslington submitted on behalf of the applicant that the word "services" is given a very wide and inclusive meaning whereas the proviso to the definition is framed in a narrow and exclusive manner. He submitted that the proviso does not include the "supply" of services under a contract of service nor does it exclude the "supply" of the "performance of work" under a contract of service. It is expressly limited to an exclusion directed to rights or benefits being "the performance of work" under a contract of service. il. This. it was submitted, is a relevant limitation because of the definition of "supply" in s.4, which in relation to "services" means "provide, grant or confer" which, because of that definition, becomes a word of wider meaning than the word "being" which the draftsman chose to use in the proviso. Mr Oslington further submitted that the draftsman had chosen to exclude only the rights and benefits being the performance of work under a contract of service. He had chosen not to exclude any other rights, benefits. privileges or facilities that are or are to be provided, granted or conferred under or in relation to a contract of service and the inclusive definition of service expressly includes such rights, etcetera in the definition. Nor has the draftsman chosen to exclude rights or benefits ain relation to the performance of work under a contract of service. Mr Oslington further submitted that rights, henefits and privileges provided, granted or conferred under a contract of service or in relation to the performance of work under a contract of service can include: (1) The right. benefit or privilege of having a free selection in the class of persons to perform that work, for example with reference to race, age, 3ex, union members, non-union members, members of a particular union conforming with relevant legislation. (11) The right, benefit and privilege of accepting an offer by a person to enter into a contract of service. Sucha right, benefit or privilege is clearly a right, benefit or privilege granted or conferred in trade or commerce and thus falls clearly within the first part of the definition of "services". It t3 noted that such a right appears to have been rejected by Mr Justice Northrop in Adamson v The West Perth Football Club reported at 27 ALR 475 at 505, 506. But is was pointed out by Mr Oslington that His Honour had given no reasons for that conclusion and that His Honour's rejection seems to be contrary to a later decision of the Full Court of this Court in Queensland Aggregates Pty Limited and Brian White v The Trade Practices Commission (1981) 38 ALR 217. It is noted that that Full Court made no reference to Adamson's case. Clearly. there are serious questions to be tried. The court is of the view that it should not at this stage express any concluded view in respect of those questions. Principles which courts should consider on an application to summarily stay or dismiss an action are clear. As Barwick CJ said in General Steel Industries Incorporated v The Commissioner for Railways (New South Wales) (1964) 112 CLR 125 at 128-129, His 13. The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subtect. to some of which I was referred in arqument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart cules to Order 26, r 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited. as in this case, to exercise its powers of summary dismissal - is Clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action": "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". Honour the Chief Justice went on: At times the test has been put as high as saying that the case must be so plain and obvious that the court cai say at once that the statement of claim. even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". Iam of the opinion that it cannot be said that Mr Rothman's argument is so plain and obvious that the court can say at once that the statement of claim. even if proved, cannot succeed. As I have stated above there are in my view serious questions to be tried. Accordingly I reject Mr Rothman's application. 14. This then leaves the application for interim relief against the first-named respondent only. Mr Rothman when opposing the making of such an order was challenaed as to his client's interest. He puts as to that interest, as I understand it, that the making of such an order for interim relief would adversely affect the BWIU and its members, particularly those members employed at the relevant site. There is no evidence before the Court which supports this suggestion. Nor can the Court, in my view, infer such a suggestion. As to the interim relief. in accordance with the well-knowm principles applicable on such an application, I am satisfied that there is a serious question to be tried and also that. on the evidence, the balance of convenience is such the orders should be made. Mr Oslinaton on behalf of the applicant has given the usual undertakings as to damages. Accordingly --- MR OSLINGTON: Before your Honour makes orders, there is a - I do not think it is so much a problem - Mr Driver now tells me he has instructions to act for a company called Murlar Pty Limited which in fact, as I understand it, is a company associated with Cadophone but was in fact the employer. HIS HONOUR: Murlar being the named company? MR OSLINGTON: Yes. your Honour. HIS HONOUR: The actual employer? MR OSLINGTON: HIS HONOUR: MR DRIVER: HIS HONOUR: MR DRIVER: HIS HONOUR: MR OSLINGTON: MR DRIVER: MR OSLINGTON: HIS HONOUR: MR ROTHMAN: HIS HONOUR: MR OSLINGTON: MR DRIVER: HIS HONOUR: MR OSLINGTON: HIS HONOUR: MR OSLINGTON: HIS HONOUR: MR OSLINGTON: 15. Yes. your Honour. So I simply seek to substitute the named Murlar for Cadophone; and perhaps my learned friend might be kind enough to give the proper spelling for the purpose of the record. Would you, Mr Driver? M-u-r-l-a-r. Murlar Cadophone. Pty Limited. in lieu of You are indicating that at all relevant times that company was the actual employer of the applicant? Yes, your Honour and we would be seeking to have that mame substituted for the first respondent, Cadophone. As a substitute? Yes, your Honour. Yes. I donot think it affects orders or anything. any of your Honour's Yes, well, I am prepared to make - objection to that, Mr Rothman? have you any No, your Honour. should order that you not required I was that that? just wondering whether I company be served or do Mr learned friend indicates he has instructions co appear, provided the name was changed. Yes. The first named respondent. as appearing in the pleadings, that is Cadophone Pty Limited trading as Alpine Erections --- No. your Honour. That is to be deleted. Yes, your Honour. And the name Murlar Pty Limited substituted. Thank you, your Honour. HIS HONOUR: MR OSLINGTON: HIS HONOUR: 16. It may require ~ this judgment ifs treated as an ex tempore judaqment - in other words that it is typed up in accordance with the practice by the Court Reporting Branch for correction by myself in the usual way. It may mean that I might make necessary adjustment to what I have said about employment. I mean it may not be straight substitution. I think it probably is though. Mr Roberts had wage slips but they had no indication of the employer and apparently it is an associated company. I had just mentioned that the usual undertaking as to damages had been given by the applicant through his counsel. Accordingly, on the usual undertakings given by the applicant, the court orders, until further order of the court, (1) that the first-named respondent continue to employ the applicant without imposing conditions on such employment, that the applicant, (a) resign from the Australian Building Construction Employees' and Builders Labourers' Federation; (b) become a member of the Builders Workers' Industrial Union of Australia: (c' surrender his membership with the Australian Builders Construction Employees' and Builders Labourers' Federation. (2) that the first-named respondent cease making arrangements or arriving at understandings to the effect of those arrangements and understandings referred to in paragraph A of the prayers for relief as set out in the statement of claim; (3) that the first-named respondent cease and desist forthwith from putting into effect or acting upon arrangements or understandings such as that referred to in paragraph A of the prayers for relief as set out in the statement of claim; and MR ROTHMAN: HIS HONOUR: MR HAYLEN: HIS HONOUR: MR HAYLEN: HIS HONOUR: MR ROTHMAN: HIS HONOUR: MR ROTHMAN: HIS HONOUR: MR ROTHMAN: HIS HONOUR: MR DRIVER: (4) liberty is granted to any party to apply on 48 hours notice to the other parties and to the court. Written notice, your Honour. Yes, costs? - Costs in the cause? No, we seek costs on the motion. Of the motion of --- Mr Rothman which I think is joined in by the other respondents. What do you say, Mr Rothman? Your Honour. we would geek costs in the direction hearings in which no orders were sought against us. No costs are made on the directions hearing, ever. Normally you come along without your wig and gown on and it is --- Your Honour, interlocutory orders were sought. We say that the costs should be costs in the cause, your Honour, innocence because the parties were here by virtue of the fact that directions hearing was sought and interlocutory orders were sought; the time of the parties. There are two sets of costs are there not? That is your motion to strike, in effect and the motion. which is set out within the claim for interlocutory relief. Yes, your honour. We came to meet the motion for interlocutory relief and in the process prepare a case in which we said there was no case to answer and since the parties were before the Court already we suggested that it was proper that we hear the motion as it stood. We say that in respect of both matters, your honour, the costs should be costs in the cause. Yes, all riqht. Your Honour, may I raise one point? Since I am now appearing for the first respondent, could it be noted that we oppose the orders? I was not appearing for them --- 18. HIS HONOUR: I appreciate that now. MR DRIVER: I am not sure if your Honour understood me to oppose the motion on behalf respondent on Friday. HIS HONOUR: Yes, I did. I think I referred of the fourth to the fact that you adopted Mr Rothman's submissions. I certify that this and the 7 preceding pages are a true copy of the Reasons for Extempore Judgment herein of his Honour Mr Justice Evatt assotSre Dated: 65-86