SB, iBT] Trade Fractirzes - secondary bovcoatt - application for interlocutory injunction - alleged black-ban by the respondents on the connection of electricity supply from the S.E.C. to the applicant's building site - whether a serious question to be tried ~ need for some evidence in support of each element of the cause of action under s.45D. Trade Practices Act 1974 s.45D SPRINGDALE COMFORT PTY. LTD. v. ELECTRICAL TRADES UNION OF WORKERS OF AUSTRALIA (WESTERN AUSTRALIA BRANCH), PERTH and KEITH COOPER No. WA G46 of 1986 TOOHEY J. PERTH 20 MAY 1986 - ye RLY IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G46 of 1986 ~~ ye BETWEEN : SPRINGDALE COMFORT PTY. LTD. Applicant and ELECTRICAL TRADES UNION OF WORKERS OF AUSTRALIA (WESTERN AUSTRALIAN BRANCH) , PERTH First Respondent and KEITH COOPER Second Respondent MINUTE OF ORDER JUDGE MAKING ORDER: TOOHEY J. DATE OF ORDER: 20 May 1986 WHERE MADE: Perth THE COURT ORDERS THAT: 1. The applicant's claim against the respondents for interlocutory relief by way of injunctions is dismissed. 2. The costs of the hearing for interlocutory relief are reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G46 of 1986 ~ ee we BETWEEN: SPRINGDALE COMFORT PTY. LTD. Applicant and ELECTRICAL TRADES UNION OF WORKERS OF AUSTRALIA (WESTERN AUSTRALIAN BRANCH) , PERTH First Respondent and KEITH COOPER Second Respondent CORAM: TOOHEY J. 20 May 1986 REASONS FOR JUDGMENT This is an application under sub-s.45D(1) of the Trade Practices Act 1974. The applicant seeks injunctive relief against both respondents pending the hearing of its substantive application. The applicant, Springdale Comfort Pty. Ltd., is engaged in the building of private homes in the Perth Metropolitan Area. It uses various business names, in particular Dalfield Homes. The first respondent, Electrical Trades Union of Workers of Australia (Western Australia Branch), Perth, is an organization of employees registered under the provisions of the Industrial Relations Act bu 1379 of Western Australia. The second respondent, Keith Cooper, 1s an employee of the State Energy Commission ("the S.E.C."). He 1s not a member of the first respondent but 1s a member of another organization, the Amalgamated Society of Engineers, Union of Workers (the precise name of the organization was not given). There is on foot an industrial dispute between the applicant and the Building Trades Association of Unions of Western Australia (Association of Workers), ("B.T.A.") which is also an organization reaqistered under the Industrial Relations Act. That dispute concerns the use by the applicant of independent contractors at a site in Kingsley Drive, Kingsley on which the applicant is building a number of retirement homes. In essence, the dispute is whether the Kingsley works constitute a commercial site. This Court is not concerned with that question and I mention 1t only by way of background to the events giving rise to this application. It did not emerge at the hearing whether the first respondent is a member of the B.T.A. But, having regard to the evidence of Walter Lawrence Palmer who is the secretary of the first respondent, 1t seems that the first respondent may have ad hoc representation on the Trades and Labour Council Disputes Committee for the purpose of the particular dispute. The applicant contends that the first respondent, acting in concert with the B.T.A., resolved at a meeting of its members held at the S.E.C.'s Balcatta operational depot that its members not connect a supply of electricity from the S.E.C. to the w aoplicant s site. It 1s also eaid that un or about 25 April 1986 the S.E.C. instructed its emplovees, aincluding the second respondent, to connect the electricity supply from the S.E.C. to the applicant's site and that the second respondent refused to carry out that instruction. As a result, the applicant has no electricity supply to its site. Although it can carry out some work by using generators, it cannot hand over houses as completed as there is no electricity connection. Sub-section 45D(1) of the Trade Practices Act is aimed at conduct which the sub-section describes in these terms: "... a person shall not, in concert with a_ second person, engage in conduct that hinders or prevents the supply of goods or services by a third person to a fourth person (not being an employer of the first-mentioned person) ...". There are other requirements, to which I shall refer. But the applicant's case 1s that the first respondent, in concert with its members and with the second respondent, and the second respondent, in concert with other union members and organizations of employees, engaged in conduct viz. a black-ban on the applicant's site that hindered or prevented the supply of electricity services by the S.E.C. to the applicant. Because the first respondent is an organization of employees, sub-ss.(5) and (6) of s.45D must be read in the light of the decision of the High Court in Actors and Announcers Equity Association of Australia v. Fontana Films Pty. Ltd. (1982) 40 A.L.R. 609. That decision held invalid sub-s.45D(5) and also sub-s.451D(6) to the extent that the latter had an overation consequential upon sub-s.(5) bv reason of the words "or 1s deemed by sub-section (5) to engage". The consequence of this 1s that the applicant cannot rely upon sub-s.(5) which deems an organization to engage in conduct in concert with its members for certain purposes. Thus the applicant must show that the first respondent engaged in relevant conduct in concert with someone other than its own members. No doubt, if and when this matter comes to trial. there will be a great deal more evidence than the Court heard for the purposes of the interlocutory application. But I must determine that application on the basis of the material presently available, bearing in mind that to succeed in its claim for interlocutory relief the applicant must first satisfy the Court that there is a serious question to be tried between it and the respondents. See Epitoma Pty. Ltd. v. Australasian Meat Industry Employees' Union (No. 2) (1984) 54 A.L.R. 730. For there to be a serious question to be tried in the case of an application under s.45D, there must at least be some evidence going to each of the elements making up a cause of action under that section. The evidence before the Court was in the form of affidavits sworn on behalf of the parties and also oral evidence resulting from the cross-examination by the applicant's counsel of two of the deponents of affidavits filed on behalf of the respondents. In the light of that material and, bearing in mind that this is an interlocutory application in which by no means all relevant evidence has been adduced, it emerged that: Since April 1986 the applicant has been engaged in a dispute with the B.T.A. relating to the Kingsley site. Three of the twenty-two houses to be built on that site have been completed; the remainder are some five weeks off total completion. There is a picket-line preventing workers going onto the Kingsley site and the probabilities are that the picket-line was established by the B.T.A. In April 1986 the applicant applied to the S.E.C. for the connection of temporary power to the Kingsley site. The company wished to instal light stands for better security on the site, damage having been done to a number of buildings. On or about 22 April 1986 the S.E.C. gave to its employee, the second respondent, a request to connect a ""builder's supply" at the Kingsley site. Such a supply is to a box on the site and is for the purposes of construction. The connection cannot be used to enliven the wiring in the buildings themselves. That connection depends on completion of a dwelling and upon an inspection by the S.E.C. The second respondent declined and continues to decline to act in accordance with the request, his reason being expressed in his affidavit in this way: 10. il. oo u 7 7. %In vefusing to cross the picket line my purpose 1s to comply with the lonastanding policy of the union of which I am a_ member. Iam aunformed and verily believe that the union of which I am a member is not a member of the 8B.T.A. In refusing to cross the picket line 1t is not my purpose nor one of my purposes to cause damage or loss to the Applicant. I would refuse to cross the picket line irrespective of whether damage or loss was caused to the Applicant". On 22 or 23 April 1986 there was a meeting of workers at the Balcatta operational depot, which meeting was addressed by representatives of the Builders' Labourers' Federation, the Municipal Officers' Association and the Amalgamated Society of Engineers, all organizations of employees. There was no evidence that the meeting was addressed by a representative of the first respondent though members of the first respondent were present at the meeting. The meeting resolved that those present not cross the picket-line established at the Kingsley site. The Amalgamated Society of Engineers gave a similar instruction to its members. At a meeting of its state council on 23 April 1986, the first respondent received a report from its president Mr. Gandini that the Trades and Labour Council Disputes Committee had recommended that unions involved in the building industry should subscribe $500 each a month for three months "in order to combat the anti-union activities of Dalfield Homes". Mr. Gandini resorted that the maney would enable "two orqanizers to be employed on a temporary basis to combat those anti-unton activities". State council resolved to "participate to the extent of $1,500". It is a requirement of sub-s.45D(1) that the conduct complained of would have or be likely to have the effect of causing substantial loss or damaqe to the business of the third person and that the conduct is engaged in for that purpose and would be likely ta have that effect. It is enough that the relevant purpose was one of the purposes, dominant or subsidiary, of the respondents for engaging in the relevant conduct. Tillmanns Butcheries Pty. Ltd. v. Australasian Meat Industry Employees' Union (1979) 42 F.L.R. 331. The purpose is "the operative subjective purpose of those engaging in the relevant conduct in concert". Deane J. in Tillmanns Butcheries at 348. It is a fair inference, even on the material available, that the first respondent supports the B.T.A. in its attitude to the dispute at the Kingsley site. But there is no evidence that the first respondent has acted in concert with anyone in any relevant sense within sub-s.45D(1). In particular there is no evidence that the first respondent has, in concert with anyone, engaged in conduct that hinders or prevents the supply of electricity to the applicant. The so called black-ban was imposed by the B.T.A. and there is no evidence that the first respondent played any part in whatever decision was made in that regard or in the maintenance of a picket~line. Although members of the first respondent were present at the meeting held at the Balcatta operational] depot, 21f did not appear that anv representative of the first respondent spoke at that meeting. The decision of the first respondent's state council to qgive financial support to the T.L.C. Disputes Committee does not raise a serious question to be tried. Equally I am not satisfied that the second respondent has acted in concert with anvone in any relevant sense or that any conduct he engaged in was for the purpose of causing substantial loss or damage to the business of a fourth person within the sub-section. Both Mr. Cooper's affidavit and oral evidence indicate that he failed to act on the work order from the S.E.C. because the policy of the organization to which he belonged was not to cross the picket-line and because of fear for his own safety, rather than for any purpose of causing damage or loss to anyone. Some criticism was made by counsel for the applicant of the failure of the first respondent to file an affidavit sworn by its president who, from the first respondent's point of view, seemed to be the person most knowledgeable of relevant events. There is some force in the criticism and the absence of such an affidavit might lead the Court to draw inferences more readily than it would otherwise have done. But the absence of such an affidavit cannot justify the reaching of conclusions that are not otherwise reasonably open. In my view the applicant has failed to establish, against either respondent, a case for the granting of injunctive 'D relief pending the hearinw or the substantive application. The application for iniunctive relief will therefore be dismissed. I am prepared to hear from counsel as to the directions that miaqht appropriately be aiven for the hearing of the substantive application including directions, if appropriate, for an early hearing. I certify that this and the preceding eight pages are a true copy of the reasons for judgment herein of his ~ Honour Mr. Justice Toohey. / / / ( Lf 4 lle y YY Associate Dated: 20 May 1986 G ohare "4 ' aN gan Tip a 2 Be iat v £ ee i