CATCHWORDS CONTEMPT OF COURT - alleged disobedience of interlocutory orders - Trade Practices Act - s.45D(1) - purpose of conduct - whether purpose to cause substantial loss or damage - proof of purpose - onus of proof - breaches of interlocutory orders not established Trade Practices Act 1974, s.45D(1) CONCRETE CONSTRUCTIONS (NSW) PTY. LIMITED Vv AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS' FEDERATION; STEVE BLACK; WILLIAM ROSS WILLIAM ROSS HEFFERNAN and DOUGLAS SIDDONS No. G950 of 1988 Morling J. 16 June 1988 Sydney IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No. G 950 of 1988 BETWEEN: CONCRETE CONSTRUCTIONS (NSW) PTY. LIMITED Applicant AND: AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS' FEDERATION First Respondent AND: STEVE BLACK Second Respondent AND: WILLIAM ROSS HEFFERNAN Third Respondent AND: DOUGLAS SIDDONS MINUTE OF ORDER JUDGE MAKING ORDER DATE OF ORDER oo WHERE MADE Sydney THE COURT ORDERS AS FOLLOWS: 1. The application that the Morling J. 16 June 1988 Fourth Respondent second, third and fourth respondents be adjudged to be guilty of contempt of Court is dismissed. 2. The applicant is to pay the third respondent's costs. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 950 of 1988 ) GENERAL DIVISION ) BETWEEN: CONCRETE CONSTRUCTIONS (NSW) PTY. LIMITED Applicant AND: AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS' FEDERATION First Respondent AND: STEVE BLACK Second Respondent AND: WILLIAM ROSS HEFFERNAN Third Respondent AND: DOUGLAS SIDDONS Fourth Respondent MORLING J. 16 June 1988 REASONS FOR JUDGMENT These are proceedings in which the applicant seeks orders that the respondents be adjudged to be guilty of contempt of Court in respect of their alleged breaches of orders made by Foster J on 13 May 1988. On that day the learned judge made interlocutory orders under s.45D(1) of the Trade Practices Act 1974 against each of the respondents. The second, third and fourth respondents are members of the first respondent ("the B.L.F."). Although several orders were made against each respondent it is sufficient for present purposes to refer to the terms of the first order made against all the respondents. It was in the following terms: "(1) AN _ORDER that the First Respondent by itself, its servants and agents and the Second Third and Fourth Respondents be restrained until further Order from engaging directly or indirectly in concert with another person or persons in conduct that hinders or prevents the supply to the Applicant of building construction services by any person or persons at any one or more of the building construction sites listed in the Schedule hereto where such conduct is engaged in for the purposes and would have or be likely to have the effect of causing substantial loss or damage to the business of the Applicant contrary to the provisions of Section 45D of the Trade Practices Act, 1974 as amended." The Schedule consisted of a list of eleven building sites, mostly within the Central Business District of the City of Sydney. The sites included the Gateway Plaza and Chevron Hotel sites. The orders made against the first respondent appear not to have been served, and no orders are sought against it in the present application. I am satisfied that the second, third and fourth respondents were served with copies of the orders made by Foster J and with the notices of motion seeking orders that they be adjudged to be guilty of contempt and with copies of the affidavits filed by the applicant. It appears that the evidence which persuaded Foster J to make the interlocutory orders consisted for the most part of evidence that the respondents had paid a number of uninvited visits to the applicant's building sites and refused to leave 3. when requested. During the course of some of these visits they had handed out inflammatory pamphlets. The visits had caused friction amongst workers on the sites. There was also evidence before his Honour that the respondent Douglas Siddons, in company with one David Croden, had gained access to a large crane at the 135 King Street, Sydney site and immobilized it with consequent disruption to the building work being carried out on the site. It must be borne in mind that, in seeking interlocutory relief, the applicant needed to satisfy Foster J only that there was a serious question to be tried on the issue whether the respondents were acting in contravention of s.45D(1) of the Trade Practices Act and that the balance of convenience lay in favour of granting interlocutory relief: see Australian Coarse Grains Pool v The Barley Marketing Board (1982) 57 A.L.J.R. 425. However, as will appear later in these reasons the standard of proof required of the applicant's case in the present proceedings is quite different and much higher. It is this higher standard which lies at the root of what I perceive to be the applicant's difficulties in establishing the contempts alleged against the respondents. The statement of the charge in the proceedings brought against the second respondent, after referring to the orders made on 13 May and to the fact that on 17 May a copy of the orders was served on him alleged, inter alia, that he had: "Continued to engage in conduct that has hindered or prevented the supply to the Applicant of building construction services at the building construction sites known as 'Gateway Plaza' and 'Chevron Hotel' and thereby had the effect of causing substantial loss or damage to the business of the Applicant." Other allegations were made in the statement of charge but it is unnecessary to refer to them. The Particulars of Charge in the proceedings against the second respondent were in the following terms: "PARTICULARS OF CHARGE The Second Respondent with servants and agents of the First Respondent without lawful excuse: - (i) Did enter unauthorised upon the building construction site known as 'Gateway Plaza', Corner of Pitt Street and Reiby Place, Sydney ('Gateway Plaza'), (hereinafter called 'the said premises') on the dates and at the times hereinafter specified: - ® At 2.30 p.m. on 17th May, 1988 with Joe Maric. ® At 2.30 p.m. on 18th May, 1988 with the Fourth Respondent, Douglas Siddons. ® At 12.45 p.m. on 19th May, 1988 with Joe Maric. (ii) Remained upon the said premises at the times and dates referred to above and refused to leave the said premises when commanded to do so knowing that such presence would cause disruption. (iii) Caused hindrance to the Applicant in its supply of building services by his presence upon the said sites requiring intervention by the police for his removal. (iv) Distributed a newsletter calling upon workers engaged upon the said sites to take industrial action against the Applicant which has resulted in industrial unrest, stop work meetings, disruption and hindrance to _ the Applicant in its supply of building services." The Particulars of Charge against the third respondent were in almost identical terms, except that in lieu of the allegation in para. (i), it was alleged that the third respondent, with servants and agents of the first respondent, had entered without authority on the Gateway Plaza site at 10.40 a.m. on 18 May with Joe Maric. The Particulars of Charge against the fourth respondent were also in almost identical terms, except that in lieu of the allegation in para. (i) it was alleged that the fourth respondent with servants and agents of the first respondent had entered without lawful authority on the Gateway Plaza site at 2.30 p.m. on 18 May with the second respondent. It is the applicant's case that each of the respondents has wilfully disobeyed the orders made by Foster J. It is submitted that the respondents, by entering upon the building sites and causing trouble with employees of sub-contractors, have deliberately breached the terms of the orders made against then. This being the nature of the contempt alleged, the consequences for the respondents if the charges are established would be serious. The present proceedings should be regarded as quasi criminal in character: see Australasian Meat Industry Employees' Union v Mudginberri Station Pty Limited (1986) 162 C.L.R. 98 at p.109. I think that in a case such as the present it is appropriate to apply a high standard of proof approaching proof beyond reasonable doubt. In Concrete Constructions Pty. Limited v Plumbers and Gas Fitters Employees' Union of Australia (No. 2) (1987) 72 A.L.R. 415 at p.436 Wilcox J took the view that, on the facts of that case, it was proper to apply the criminal standard of proof. In Glass Containers (Australia) Pty Limited v Hyundai Australia Pty Limited (1986) 8 A.T.P.R. 47986 (a motion for contempt for breach of an undertaking) Toohey J said the standard of proof appeared to be somewhere between a balance of probabilities and satisfaction beyond reasonable doubt. In a case in which proof of the alleged contempt would not lead to serious consequences, a somewhat less onerous standard of proof might apply: see New South Wales Egg Corporation v Peek (1987) 10 N.S.W.L.R. 72 at p.81 et seq. The critical question in the present application is whether the conduct of any of the respondents referred to in the several Particulars of Charge was engaged in for the purpose of causing substantial loss or damage to the business of Concrete Constructions. To prove a breach of the orders made by Foster J Concrete Constructions must establish that a purpose of the conduct of one or more of the respondents was to cause such loss or damage. It is sufficient for it to establish that this was one of their purposes. It is not necessary for it to prove that it was their only, or dominant, purpose: see s.45D(2) of the Trade Practices Act. When conduct is engaged in by unionists in furtherance of what they perceive to be their own interests or the interests of their union, it is sometimes difficult to prove that one of their purposes is to cause substantial loss or damage to a corporation's business. The difficulty is readily overcome in cases where the immediate purpose of the conduct engaged in is to bring direct pressure to bear on the corporation by depriving it of the materials it needs to conduct its business. Such cases often involve the imposition of black bans or the setting up of picket lines. Two such cases were Barneys Blu-Crete Pty Limited v Australian Workers' Union (1979) 43 F.L.R. 463 and Mudginberri Station Pty Limited v Australasian Meat Industry Employees' Union (1985) 61 A.L.R. 280. But the present is not such a case. As will appear from the facts to which I shall presently refer, there is very little evidence that the respondents, or any of them, engaged in conduct that can be described as bringing pressure to bear upon the applicant. The evidence against Black is as follows: (a) At about 11.50 a.m. on 17 May 1988 Black and Joe Maric were observed in a lunch shed on the Gateway Plaza site. Foster J's orders had been served upon Black earlier the same morning. He and Maric were asked to leave and said that they would not. The police were called at about 11.55 a.m. At 12.10 p.m. they were again asked to leave the premises and they again refused. Black said that they would leave when they had finished their business. At 12.15 p.m. they were both arrested (b) (c) and escorted from the site. However, 1t is to be noted that the Particulars of Charge against Black make no mention of this incident. This being so, while it may shed some light on Black's subsequent conduct, it is not evidence of the particular conduct said to constitute Black's contempt. At about 2.30 p.m. on 18 May Black and Siddons entered the Gateway Plaza site. They were both asked to leave and Black refused, saying: "Why call the Police. You are just like Hitler." The police were called. Mr Stinson, the project manager, told Black and Siddons: "You are seriously disrupting work on this site. I have called the police because it seems the only way to get you off the site and to enable work to continue without disruptions." Black replied: "Your attempts to go through the Courts to prevent us representing our members will not succeed!" Black and Siddons both walked off the site at 3.15 p.m. Black and Maric were seen at about 1.15 p.m. on 19 May in a lunch shed on the Gateway Plaza site. Stinson asked them to leave and they refused. The police were called at about 1.45 p.m. Black and Maric again refused to leave. They were arrested and escorted off the site at about 2 p.m. (b) (¢) 10. On 24 May Siddons entered the Chevron Hotel site at about 1.30 p.m. He was spoken to by Mr Rea, who was the site manager of the project. Rea said to Siddons: "We are getting a bit tired of you coming on to the site" and that "It was causing a lot of problems about a job to run". According to Rea, Siddons said that he had a job to do and was going to continue to do it. He also said that "They are attacking Concretes, it is about time Concrete got a bit." When asked what he understood by these remarks of Siddons, Rea said: "Basically he was trying to attack Concretes, probably because they were one of the larger builders in Sydney, and that they were probably slightly better targets, I imagine, than any other builder around town and that was their aim at that particular time." On 26 May, Siddons and one Croden entered the Chevron Hotel site at about 12.20 p.m. They were observed on the ground floor of the project and the police were called. Mr Challinor, the project manager, asked them to leave. He said to them: "I also remind you that there are Federal Court orders prohibiting you from causing loss and damage to the business of Concrete Constructions (N.S.W.) Pty Limited. You are both aware that in coming on these premises you are causing damage to Concrete's business. Accordingly, you are breaching the Court's orders." The police arrived at about 11. 12.45 p.m. and Constable Cooper asked Siddons and Croden to leave. They refused, and were removed from the site at about 1.10 p.m. (d) On 27 May Siddons entered the site at about 10.27 a.m. and handed out leaflets. He seems to have left very soon after arriving. The evidence of this incident is hearsay, and I do not think I should regard the incident as having been proved, quite apart from the fact that it is not mentioned in the Particulars of Charge. (e) On 31 May (several days after the contempt proceedings were commenced) Siddons entered the Chevron Hotel site and remained for about 10 minutes stapling posters on sheds. There is evidence, which I accept, that the presence of the respondents on the applicant's building sites causes trouble with workers employed by sub-contractors. They apparently resent the presence of the B.L.F. men on the site. They are all members of other unions but some of them may also be members of the B.L.F. However, although the presence of the respondents on the site is resented by the other workers, they apparently resent even more the actions of the applicant's site supervisors in calling the police to have the respondents removed. They have threatened to stop work in future if the police are called. 12. It may be accepted that two or more members of a union acting together and having a union purpose for their conduct may nevertheless also have the purpose of causing substantial loss or damage to the business of a corporation: see Tillmanns Butcheries Pty Limited v Australasian Meat Industry Employees' Union (1979) 27 A.L.R. 367 at p.374 per Bowen C.J. But as Deane J observed in the same case, the "purpose referred to in s.45D(1) is the "operative subjective purpose of those engaging in the relevant conduct in concert." (p.382). His Honour also said (at p.383): ",.. in my view, the question to be answered in determining whether conduct was engaged in for a 'purpose' mentioned in s 45D(1) of the Act is, to adopt the words of viscount Simon LC in Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1542] Ac a -5, to be answered not by reference to whether it was appreciated that the relevant conduct might have the specified effect but by reference to the real reason or reasons for, or the real purpose or purposes of, the conduct and to what was in truth the object in the minds of the relevant persons when they engaged in the conduct in concert." See also, Transport Workers' Union of Australia (New South Wales Branch) v Leon Laidely Pty Limited (1980) 43 F.L.R. 168 at p.171 where Bowen C.J. observed out that the purpose referred to in s.45D(1) is "the subjective purpose of those who are engaging in the conduct." It is beyond question that the respondents' conduct has been illegal and deserving of censure. It is most important that the Court's orders should be obeyed. However, 13. after giving the applicant's evidence the most anxious consideration, I have reached the conclusion that it does not establish, to the standard of proof to which I have referred, that any of the respondents have acted in contempt of the orders made by Foster J. The evidence establishes that the respondents have committed many acts of trespass upon the applicant's premises, but I do not think it establishes that in so trespassing the respondents had any purpose other than speaking to members of the 8.L.F. and other men working on the sites. There is no evidence that any of the respondents distributed pamphlets to workers on the applicant's building sites during the periods covered by the charges. The dislocation which has been caused to Concrete Constructions' business has been caused by the refusal of some employees of sub-contractors on the jobs to work while the respondents have been on site. The evidence does not satisfy me that it was one of the respondents' purposes that this should happen. They may well have appreciated that their presence on the sites might cause friction with other unionists, but that is not to say that they went on to the sites for the purpose of causing substantial loss or damage to Concrete Constructions' business. The only unequivocal evidence that any of the respondents intended to cause substantial loss or damage to Concrete Constructions' business was given by Mr _ Rea. According to him, on 24 May Siddons said, inter alia: "it is about time Concretes got a bit". But this statement was made 14. during the course of an incident which is not relied upon in the Particulars of Charge. Moreover, it does not constitute evidence against the other respondents. It should be noted that Rea did not depose to this statement in his affidavit. He gave oral evidence of it in the witness box. Order 40, rule 7 requires the evidence in support of a charge of contempt to be by affidavit, unless the Court otherwise permits. Bearing in mind that the incident of 24 May is not relied upon in the Particulars of Charge against Siddons and that he did not appear and was not represented at the hearing I do not think I can properly permit this evidence to be relied upon. In any event, I do not think it suffices to prove that Siddons, acting in concert with any other person, engaged in conduct of the requisite kind. I am not aware of any case in which conduct of the kind relied upon by the applicant in this case has been held to have been engaged in for the purpose of causing substantial loss or damage to the business of a corporation. As I have observed, the cases in which it has been found that conduct has been engaged in for such purposes have mostly been cases in which some form of direct pressure, such as a black ban or a picket line, has been imposed for the purpose of impeding the operation of a corporation's business. Of course, the fact that conduct is novel does not exempt those who engage in it from the operation of s.45D(1). But it is likely that an applicant will have difficulty in proving the purpose proscribed by s.45D(1) where the respondent does not engage in the more usual and direct forms of industrial action which cut 15. off or prejudice the supply of goods or services to the applicant's business. This is particularly so because what s.45D(1) requires is proof of engagement in conduct having the purpose of causing substantial loss or damage. In Tillmanns Butcheries (supra, at p.348) Deane J said that, in the context of s.45D(1) substantial loss or damage includes "loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal". Although I have not reached a concluded view on this matter, I am inclined to think that the applicant has proved that it has suffered substantial loss and damage. But this is not sufficient. It must also prove that the respondents' conduct was engaged in for the purpose of causing such loss and damage. It should not be assumed from what I have written that the respondents' conduct has been lawful. It has not been. They have been trespassing upon the applicant's premises. If they continue to do so, it will be open to the applicant to seek orders enjoining them from committing further trespasses. The argument, advanced on behalf of the respondent Heffernan, that he was entitled to go on to the applicant's premises in the exercise of what was said to be his right of free speech is plainly untenable. The respondents have no right to go upon any of the building sites upon which the applicant is constructing buildings and if they continue to do so the law will not be impotent to give the applicant the protection to which it is entitled. 16. The application is dismissed with costs. I certify that this and the fifteen (15) preceding pages are a true copy of the Reasons for Judgment of his Honour Mr Justice Morling. Associate: / Date: 16 Sone \AaB Counsel for applicant: M.H. Tobias Q.C. with D.A. Cowdroy instructed by: Westgarth Baldick Counsel for third respondent: S. Littlemore with M.C. Brabazon instructed by: Geoffrey Edwards & Co. There were no appearances for the first second and fourth respondents Date of Hearing: 8 June 1988 Date of Judgment: 16 June 1988