re Cees « "sD CATCHWORDS TRADE PRACTICES - secondary boycotts - picket of abattoir by union - permanent injunctions - alleged false evidence of witness in injunction proceedings - application to set aside injunctions ~- whether injunctions should be set aside. JUDGMENTS AND ORDERS - application to set aside injunctions - alleged false evidence of witness - finding by trial judge that witness honest - whether injunctions should be set aside. THE AUSTRALASTAN MEAT INDUSTRY EMPLOYEES' UNION & ORS. v. MUDGINBERRI STATION PTY. LTD. No. VG 307 of 1986 CORAM: Fox, Woodward and Sheppard JJ. 16 June 1987 Sydney anid — on Tas roe wero eae JUDGES MAKING ORDER: DATE OF ORDER: WHERE MADE: IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No. VG 307 of 1986 wee ON APPEAL from a single judge of the. Federal Court of Australia BETWEEN : THE AUSTRALASTAN MEAT INDUSTRY EMPLOYEES' UNION, JACK O'TOOLE, TREVOR SURPLICE, DICK ANNEAR and PAT ROUGHAN Appellants AND: MUDGINBERRI STATION Pry. LID. Respondent MINUTE OF ORDER THE COURT ORDERS THAT: FOX, WOODWARD AND SHEPPARD JJ. 16 JUNE 1987 Sydney. 1. The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. Fy — rete ge foe IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY } NO. VG 307 OF 1986 ) GENERAL DIVLSLON ) ON APPEAL from a single judge of the Federal Court of Australia BETWEEN : THE AUSTRALASTAN MEAT INDUSTRY EMPLOYEES 'UNION, JACK O'TOOLE,TREVOR SURPLICE, DICK ANNEAR and PAT ROUGHAN Appellants AND: MUDGINBERRI STATION PLY. LTD. Respondent CORAM: FOX, WOODWARD AND SHEPPARD JJ. DATE: 16 JUNE 1987 REASONS FOR JUDGMENT THE COURT: We have heard together with the appeal on damages, an appeal from the dismissal by Morling J. of a separate application (V.G.36 of 1986) that the permanent injunctions made under s.45D of the Trade Practices Act 1974 on 12 July 1985 should he set aside on the ground that some evidence of Mr Pendarvis was deliberately false, and perjured, or was made recklessly, not caring whether it was true or false. The decision of Morling J. on this matter is now reported at (1986) 8 A.T.P.R. 40-709. After the permanent injunctions were granted (12 July pre sp cee 1985) and certain orders made, and after the postponed damages claim was heard, but before it was determined, an application was made by the present appellants, accompanied by a statement of claim, to sel aside the injunctions, and for other orders, on the ground of the alleged fraud of Mr Pendarvis. Before Gray J., Mudginberri sought, unsuccessfully, to strike out the statement of claim and to have the application dismissed insofar as it related to the setting aside of the injunctions. The judgment of Gray J. is reported at (1986) 8 A.T.P.R. 40-690. The application and statement of claim were amended and came before Morling J. After a question as to the propriety of the application being dealt with by him was disposed of by the High Court (Re Morling; Ex p. Australasian Meat Industry Employees' Union (1986) 60 A.L.d.R. 526), he made an order on 21 July 1986 dismissing the amended application, with costs. The notice of appeal relates essentially to the matters we have mentioned concerning the evidence of Mr Pendarvis, and those are the matters which were arqued. These reasons should, so far as relevant, be read with the reasons in the appeal concerning damages. The evidence relied upon was that in the injunction proceedings Mr Pendarvis said that a trading loss of $183,000 had been incurred by Mudginberri between 24 June and 9 July by reason of the presence of the picket line. this being the difference between $1.77 per kilogram (the domestic value of the meat) and eee a 2 tye so ou $2.76 per kilogram (the export value of the meat). The evidence of Mr Pendarvis was given in reliance on a document which was tendered (Ex.D), but with counsel's disclaimer as to its precise acccuracy. Part of the allegation made is that at the time of giving the evidence referred to, Mudginberri had sold the meat to A.D.M.A. for $2.30 per kilogram in the period 3 July - 8 July, the implication being that in this respect Mr Pendarvis' evidence had been deliberately false. We have dealt in the other appeal with the true nature of the A.D.M.A. transaction, and also with the disposition of the meat during the balance of the period referred to. The learned judge said this in relation to the evidence of Mr Pendarvis: "Pendarvis disclaimed any intention to deceive or mislead the Court when giving his evidence in the damages proceedings. I accept his disclaimer. I reject the allegation that he gave deliberately untruthful or fraudulent evidence. I think he was an honest witness whose evidence is reliable on most of the matters upon which he was questioned." His Honour made it plain that some loss was intended, and inevitable, that he did not act on $183,000 as being accurate, and that the precise measure was by no means critical to his decision to issue the injunction. This seems to us plainly to be so. This is not a case where evidence has been discovered since the hearing which goes to show that Mr Pendarvis' evidence was deliberately false, or fraudulent. The issue was litigated pe re mr 2 eee ae oe ' , an before Morling J. in the injunction/damages hearing. Mr Pendarvis gave evidence of the relevant matters and was available for cross-examination upon it applicant's submission. His Honour did not accept the This appears from a number of his findings, but as directly relevant to this application, it is stated briefly in the passage we have quoted. We do not find any sufficient basis to differ from his Honour's view of the credibility of Mr Pendarvis, or of the honesty of his evidence. We agree with his Honour's order that the application be dismissed with costs, and the appeal to us should also be be dismissed with costs. Counsel for the Appellant: Solicitors for the Appellant: Counsel for the Respondent: Solicitors for the Respondent: Dates of hearing: Date judgment delivered: I certify that this and the three (3) preceding pages are a true copy of the Reasons for Judgment of the Court. ey Associate Dated: 16 dune/ 1987 , D. Ashley Q.C. with A.M.North R.L.Whyburn & Associates as Sydney agents for Ryan Cariisle Needham Thomas I.D.F.Callinan 90.C. with D. Cowdroy Tress Cocks & Maddox as Sydney agents for Mildren Silvester & Partners 9,10,11,12,13, 16,17,18,19 March 1987 16 June 1987