Independent Cement & Lime Pty Ltd v Australian Cement Ltd & Ors [1988] FCA 197

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JUSOMINT Mo. 147 7e8_ =

Trade Practices - Secondary boycott - Concerted conduct likely to prevent supply of services - concerted conduct likely to cause substantial loss and damage to business.

Trade Practices Act 1974 - 5.45D(1)(b)(i)

INDEPENDENT CEMENT & LIME Pry. LTD. v. AUSTRALIAN CEMENT LIMITED, JW. P. af E

No. VG127 of 1988

.

Jenkinson J. Melbourne

19 April, 1988

OF AU: I )

VICTORIA DISTRICT REGISTRY ) No. VG127 of 1988 GENERAL DIVISION ) BETWEEN: I Cc LI pry. LTD. Applicant

AND: AUSTRALIAN _____CEMENT LIMITED, J.W. LAURIE, MAX

PB. te S DRYSDALE Respondents CORAM: Jenkinson J. PLACE: Melbourne DATE: 19 April, 1988 REASONS FOR JUDGMENT

Application for interlocutory injunctions.

The applicant has entered into a contract to import cement from Japan and is in the process of constructing and modifying buildings on land at 750 Lorimer Street Port Melbourne for storing the cement. The applicant is also engaged in laying an underground pipe for the conveyance of the cement from berthed ships to that land. In September 1987 a company which trades under the name "Camillo" (and to which I will refer by that name) contracted with the applicant to carry out some of the construction work on the land. On 15 October the respondent Drysdale, who describes himself as "the Manager - Victoria, Sales and Distribution" of the respondent Australian Cement Ltd. (ACL)

called on a director of Camillo at Camillo''s office in Port

Melbourne. The director, Luciano Crema, has deposed that Drysdale Said that the project at 750 Lorimer Street Port Melbourne for the storage of imported cement should not go ahead "because it would involve the loss of thousands of jobs", that Camillo should cease to perform its contract for work on that land and that Camillo would be reimbursed by ACL for any monetary losses which it might suffer by reason of its ceasing to perform the contract. Mr. Drysdale has deposed that he did say that if Camillo "suffered any commercial loss it would be reimbursed by ACL", but that he did not say that Camillo should cease performing the contract. According to Mr. Drysdale he pointed out to Mr. Crema that there might be "industrial action" on the Lorimer Street land and at other sites where Camillo was carrying out work if Camillo were to perform the contract and "suggested that Mr. Crema should use his commercial judgment as to the ramifications for his business of incurring such industrial action." It was common ground that ACL manufactures cement in Australia and is in various lawful ways advocating the taking by government of steps designed to prevent the importation of cement on terms which would result in competition, between the vendors of imported cement and the producers of locally manufactured cement, of a kind which would he unfair to the latter. The terms on which ACL contends that the applicant will import cement are likely to have sucha result, according to ACL. Mr. Drysdale denied that his visit to Mr. Crema was made "as the result of any instruction from any person in ACL." He did not deny that he was authorised by ACL to make the