JUDGMENT No. 4bL MBB CATCHWORDS TRADE PRACTICES - secondary boycott - B.L.F. - engagement in conduct - whether for purpose of causing loss - whether conduct likely to have effect of causing substantial loss - Trade Practices Act 1974 s. 45D (1) TRESPASS - building construction sites - entry by members of B.L.F. - whether building sites in possession of builder — whether exclusive possession ~- right to bring action in trespass UNINCORPORATED ASSOCIATION - whether liable to be sued - members of association - appointment of persons to represent members - whether appointment proper -— Federal Court Rules, Order 6, rule 13. CONCILIATION AND ARBITRATION - Federal union - deregistration - union remains unincorporated association - State union - State union deregistered ~ registration under Trade Union Act 1881 extant - whether deregistered State union a body corporate STATUTE - interpretation - "person" - whether a State union a person within the meaning of s.45D of Trade Practices Act - whether State union a "body corporate" Trade Practices Act 1974, ss. 45D(1), 84(2) Federal court Rules, Order 6, rule 13 CONCRETE CONSTRUCTIONS (NSW) PTY. LIMITED Vv. AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS' FEDERATION; BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS' FEDERATION OF NEW SOUTH WALES; STEVE BLACK; WILLIAM ROSS HEFFERNAN; DOUGLAS SIDDONS; DAVID CRODEN; LARRY GAINES; WILLIAM MATCHETT; ZELKO JOSEPH MARIC; TERENCE DOYLE and NORMAN LESLIE GALLAGHER, STEVE BLACK, and WILLIAM MATCHETT representing all the members of the unincorporated association known as the AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES *' AND BUILDERS LABOURERS ' FEDERATION No. G950 of 1988 Morling J. 25 August 1988 Sydney oa eh 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 BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS' FEDERATION OF NEW SOUTH WALES - Second Respondent STEVE BLACK Third Respondent WILLIAM ROSS HEFFERNAN Fourth Respondent DOUGLAS SIDDONS Fifth Respondent DAVID CRODEN Sixth Respondent LARRY GAINES Seventh Respondent WILLIAM MATCHETT Eighth Respondent ZELKO JOSEPH MARIC Ninth Respondent TERENCE DOYLE Tenth Respondent NORMAN LESLIE GALLAGHER, STEVE BLACK, and WILLIAM MATCHETT representing all the members of the unincorporated association known as the AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS' FEDERATION eleventh Respondents paneer cae + news te ne - - St te oe Seen evaeaauetnatcetand x Ry JUDGE MAKING ORDER MINUTE OF ORDER Morling J. DATE OF ORDER WHERE MADE 25 August 1988 oe Sydney THE COURT ORDERS: 1. That the second respondent by itself its servants and agents, and the third, fourth, fifth, sixth, seventh, ninth and tenth respondents be permanently restrained from entering upon the premises described in the schedule hereto and the buildings being constructed thereon. That the eleventh respondents as representing all the members of the Australian Building Construction Employees' and Builders Labourers' Federation be permanently restrained from entering upon the premises described in the schedule hereto and the buildings being constructed thereon. That the second respondent by itself its servants and agents and the third, fourth, fifth, sixth, seventh, ninth and tenth respondents be permanently restrained from engaging directly or indirectly in concert with another person or other 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 described in the schedule hereto ee es oaN ev ores 3. and the buildings being constructed thereon 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, That the eleventh respondents as representing all the members of the Australian Building Construction Employees' and Builders Labourers' Federation he permanently restrained from engaging directly or indirectly in concert with another person or other 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 described in the schedule hereto and the buildings being constructed thereon 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. That the second respondent by itself, its servants and agents, and the third, fourth, fifth, sixth, seventh, ninth and tenth respondents be permanently restrained from: (a) (b) (a) 4. Aiding, abetting, counselling or procuring any person or persons to engage in the conduct referred to in Orders 1, 2, 3, and 4; Inducing or attempting to induce a person or persons, whether by threat, promise or otherwise, to engage in the aforesaid conduct; Being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the aforesaid conduct; or Conspiring with any other person or persons to engage in the aforesaid conduct. That the eleventh respondents as representing all the members Employees' of the Australian Building Construction and Builders Labourers' Federation be permanently restrained from: (a) Aiding, abetting, counselling or procuring any person or persons to engage in the conduct referred to in Orders 1, 2, 3, and 4; "e mp 5. (b) Inducing or attempting to induce a person or persons, whether by threat, promise or otherwise, to engage an the aforesaid conduct; (c) Being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the aforesaid conduct; or (d) Conspiring with any other person or persons to engage in the aforesaid conduct. 7. That the application be dismissed as against the first and eighth respondents. 8. That the respondents, other than the first and eighth respondents, pay the applicant's costs. 9. That the matter stand over to a date to be fixed for consideration of the question of damages. (a) (b) (c) (d) (e) (f£) (g) (h) (i) (3) (k) THE SCHEDULE Chevron Hotel, Rockwall Crescent, Potts Point. Gateway Plaza, Cnr. Pitt Street and Reiby Place, Sydney. 135 King Street, 135 King Street, Sydney. Carringbush, 572 George Street, Sydney. Grosvenor Place, Level 3, 117-119 Harrington & Essex Streets, Sydney. Hurstville Viewpoint, Bridge Street, Hurstville. Malabar Sewerage Treatment Plant, Malabar. Pitt Street Hotel, 267 Pitt Street, (Cnr. Bulletin Place), Sydney. Sydney Futures Exchange, 2nd Floor, 117-119 Harrington Street, Sydney. Warragamba Dam, Recreation Area, Warragamba. Yard, 12 Loyalty Road, North Rocks. see we eo ee wa povaeee sees NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. ae te IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 950 of 1988 GENERAL DIVISION BETWEEN: AND: ey CONCRETE CONSTRUCTIONS (NSW) PTY. LIMITED Applicant AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS' FEDERATION First Respondent BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS' FEDERATION OF NEW SOUTH WALES Second Respondent STEVE BLACK Third Respondent WILLIAM ROSS HEFFERNAN Fourth Respondent DOUGLAS SIDDONS Fifth Respondent DAVID CRODEN Sixth Respondent LARRY GAINES . Seventh Respondent WILLIAM MATCHETT ° Eighth Respondent ZELKO JOSEPH MARIC Ninth Respondent TERENCE DOYLE Tenth Respondent NORMAN LESLIE GALLAGHER, STEVE BLACK, and WILLIAM MATCHETT representing all the members of the unincorporated association known as the AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS' FEDERATION Eleventh Respondents De ge ee ee -peern new ae ces maa ' MORLING J. 25 August 1988 REASONS FOR JUDGMENT The applicant is engaged in the building construction industry. It is in the course of erecting a number of substantial buildings, including commercial buildings in Pitt Street Sydney ("Gateway Plaza site"), King Street, Sydney ("King Street site") and Kings Cross ("Chevron Hotel site"). It seeks relief against all of the respondents in respect of what it claims are past and apprehended breaches of s.45D(1) of the Trade Practices Act 1974 and in respect of past and apprehended trespasses by the respondents on the lands upon which the buildings are being constructed. The first respondent ("the Federal Union") was, until 14 April 1986, an organization of employees registered pursuant to the Conciliation and Arbitration Act, 1904. On that date the Builders Labourers' Federation (Cancellation of Registration) Act 1986 and the Builders Labourers' Federation (Cancellation of Registration - Consequential Provisions) Act, 1986 came into force. Section 3 of the first-mentioned Act cancelled the Federal Union's registration under' the Conciliation and Arbitration Act. Thereafter it has continued to operate as an unincorporated association. The circumstances in relation to the deregistration of the Federal Union are referred to in the judgment of Beaumont J. in Australian Building Construction Employees' and Builders Labourers' Federation v Master Builders' Association of New South Wales (1986) 69 A.L.R. 515 at p.518 et seq. 3. The second respondent ("the State Union") is a trade union registered under the Trade Union Act, 1881 (N.S.W.). Consequent upon a declaration made by the Governor pursuant to s.3(1) of the Industrial Arbitration (Special Provisions) Act, 1984 (N.S.W.)} the registration of the State Union under the Industrial Arbitration Act 1940 was cancelled. Any doubts as to the validity of the declaration were removed by the Builders Labourers' Federation (Special Provisions) Act 1986 (N.S.W.). However, the State Union continues to exist as a trade union registered under the Trade Union Act. It will be convenient in these reasons to refer to the Federal Union and the State Union collectively as "the B.L.F." and to the other respondents as "the B.L.F. representatives". None of the respondents, save the fourth respondent, Mr Heffernan, entered appearances. No evidence was given by or on behalf of Heffernan. The applicant sought to obtain documents and -records from the Federal and State Unions relating to their affairs but subpoenas for production of such documents and records, although served, were unanswered. In these circumstances the relationship between the B.L.F. and the other respondents was not as easily proved as it might otherwise have been. It is convenient first to deal with the case against the third to tenth respondents. The third respondent, Black, is the secretary of the State Union. The fourth respondent, Heffernan, is one of the trustees of the State Union and is a ecw ey ree, 4. described as an "organizer" in a pamphlet distributed to men working on the applicant's building sites. This and other pamphlets purported to be authorized by Black and it is reasonable to infer that they were issued with the knowledge and authority of the Federal and State Unions. The fifth respondent, Siddons, is referred to in one of the pamphlets as a "B.L.F. Official". The sixth respondent, Croden, is referred to in one of the pamphlets in terms from which it can be inferred that he is in sympathy with, and actively supports, industrial action taken on the applicant's building sites by the B.L.F. The eighth respondent, Matchett, is a trustee of the State Union. There is no evidence as to the formal relationship between the seventh, ninth and tenth respondents and the B.L.F., but it can safely be inferred from the evidence that they are closely associated with and take an active part in the B.L.F.'s industrial activities. I expressed the view during the course of the hearing that the Federal Union, being an unincorporated association, was not capable of being sued under the name of the first respondent. For this reason, the eleventh respondents were added to represent the members of the unincorporated Federal Union. I shall refer again to this matter later in these reasons. The activities of the B.L.F. representatives that give rise to the proceedings are an unusual form of industrial activity. In the face of repeated protests by the applicant's site managers and others, the B.L.F. representatives have 5. entered upon one or other of the applicant's building sites. On most occasions they have distributed pamphlets to men on the job. When challenged, they have asserted that their business on the sites is to look after the affairs of employees who are members of the B.L.F. There is only the scantiest evidence that there are, in fact, any members of the B.L.F. working on any of the applicant's building sites. All workers on the sites are members of other unions, especially the Building Workers Industrial Union of Australia ("the B.W.I.U.A."). The pamphlets contain many statements which can only be described as strident industrial rhetoric. In substance, the pamphlets urge workers to ignore the Arbitration Commission and to take direct action against employers in support of industrial claims. Most, if not all, of the pamphlets bear the indorsement: "Authorised by: Steve Black, State Secretary, A.B.C.E. & B.L.F. (N.S.W.) Branch". An idea of the nature of the statements may be gleaned from the following excerpts from some of them: "No Police in Industrial Disputes". "Join a Fighters Union - The B.L.F." "Take Direct Action - Guerrilla Tactics are Best - Stop Work Meetings, Hard-Hitting Bans and Limitations." "The major thing is to hurt the bosses in the pocket ..." "Hard-hitting bans, bans on concrete pours, bans on sections of jobs: ..." "We need to get site after site passing resolutions at stopwork meetings that we are finished with the Arbitration Court." The attendances by the B.L.F. representatives at the building sites causes disruption to the work in progress. a hee ia yooveg ee oe 6. Some employees stop work to attend meetings at which they are addressed by the B.L.F. men. More importantly, there is tension between the B.W.I.U.A. and the B.L.F. Many members of the B.W.I.U.A. resent the presence of B.L.F. representatives on the work sites. The B.W.I.U.A. has informed the applicant that unless it keeps B.L.F. representatives off its building sites, B.W.I.U.A. members will withdraw their labour while the B.L.F. representatives are on site. On many occasions the site managers have called police to remove one or other of the B.L.F. representatives from the building sites. This action has caused trouble with the B.W.I.U.A. That union objects to employers in general, and the applicant in particular, calling members of the police force to deal with industrial disputes. The B.W.I.U.A. has threatened to call its members out on strike if police are again called to the applicant's building sites. The applicant therefore finds itself in an invidious position. If it calls the police when the B.L.F. representatives make uninvited visits to a building site, the men on the job cease work. If the police are not called, the B.W.I.U.A. threaten to call the men out on strike. In these circumstances, the applicant has little alternative but to bring these proceedings against the respondents if it is to complete the buildings under construction without continued industrial disruption. Some idea of the nature of the cases made against the B.L.F. representatives may be gained from the following brief description of the evidence against them. wee 7. On 5 May 1988 Mr Stinson, the project manager of the Gateway Plaza site, received information that five unauthorized male persons were on the site. At about 1.10 pm he observed Black, and asked him to leave. Black said he would leave when he was ready. The police were present and, after some further conversation, Black was escorted from the site by the police. At about 11.50 am on 17 May Black, in company with the respondent Maric, was observed in a lunch shed on the Gateway Plaza site. They were asked to leave but they refused to do so. The police were called at about 11.55 am. At 12.10 pm they were again asked to leave and they again refused. Black said that they would leave when they had finished their business. At 12.15 pm they were arrested and escorted from the site. At about 2.30 pm on 18 May Black and the respondent 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. Stinson 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 pm. The reference to the "Courts" was no doubt a reference to an application made in the present proceedings to punish Black and others for their alleged contempt in disobeying interlocutory orders made by Foster J. aware —— 8. Black and Maric were seen at about 1.15 pm on 19 May in a lunch shed on the Gateway Plaza site. Stinson asked them to leave. They refused to do so. The police were called at about 1.45 pm. They again refused to leave. They were arrested and escorted off the site at about 2 pm. On 17 June Black was again on the Gateway Plaza site. He distributed pamphlets and talked to men working on the job. Black was also seen talking to a group of about a dozen men in a@ Site shed. When asked what he was doing on the site he said he was handing out pamphlets. Stinson also told him that he was causing loss, disruption and damage to the job and that he was not entitled to be on the premises. Stinson told Black he was trespassing and that he had been asked to leave the premises at least twenty times. Black left the site at about 8.55 am. Black entered the Chevron Hotel site on 10 and 18 March, the King Street site on 3, 10, 11, 17, and 18 March, and on 27 and 28 April and on 2, 3 and 13 May. Heffernan entered the Gateway Plaza site on 5 and 18 May, 17 and 20 June, and 19 and 28 July. He entered the Chevron Hotel site on 2, 9 and 23 June, and on 21 July and the King Street site on 18 March, 28 and 29 April, 2, 3 and 13 May and 20 July. On his first visit to the Gateway Plaza site he left when first asked to do so. On his second visit he was in company with Maric. Stinson asked Heffernan and Maric to leave, but they declined, saying they would leave when they had an te ee meee pe ere 9. finished their business. The police were called and Heffernan .- and Maric were again asked to leave but they refused to do so. They were arrested and escorted off the site. Heffernan was seen handing out pamphlets on the Gateway Plaza site on 17 June. On his visit to this site on 20 June he was told by Stinson that he was causing loss, disruption and damage to the applicant's business. He replied that he was only handing out pamphlets and was not stopping anybody from working. Stinson told him he was not entitled to be on the premises and that he was trespassing. Heffernan said he would leave when he had finished handing out pamphlets. When he left the site he said he would be coming back the following day. Heffernan entered the Chevron Hotel site on 2 June in company with Siddons. He was observed handing out pamphlets. Mr Challinor, the project manager of this site, told Heffernan and Siddons that they were not lawfully entitled to be on the premises, and that they kept forcing him to report the matter to the police in order to have them removed. Challinor said that they were causing damage to the applicant's business. Heffernan replied that he didn't care, he had a job to do and would keep coming back onto the site as long as he was instructed to do so. Heffernan has also entered the King Street site. MThe manager of that site is Mr Russell Perkins. He said that on 17 March 1988 he saw Heffernan on the site and told him he was Hea - 10. not entitled to be there and asked him to leave. Heffernan did not do so, and after about twenty minutes the police arrived and escorted Heffernan and Black, who was also present, from the site. On 28 April Heffernan entered the King Street site in company with Black and on 2 May he was there in the company of Black and Siddons. He again entered the site on 3 May. On this occasion there were a number of other men apparently connected with the B.L.F. on the site. These persons included Siddons and the sixth respondent, Croden. Heffernan was seen on the Gateway Plaza site on 19 July. He was told there was an order of this Court restraining him from entering the premises. When asked to leave he said he was going to see two of his members. He was again told that he was not authorized to be on the premises and was asked to leave. He said was not stopping anyone from working. He also said that "We are a trade union under the Trade Union Act 1888 (sic) and we are servicing our members," Maric was also on the site that day and was observed handing out pamphiets. On 28 July Heffernan was again seen on the Gateway Plaza site, this time in the company of the tenth respondent, Doyle. In the course of a conversation with Stinson, Heffernan said: "I will do everything in my power to stop Concretes. They have quadrupled the security guards on King Street. They thought the Courts would stop me, well they didn't. That should hang me." Siddons made numerous visits, of a kind similar to those described above, to the Gateway Plaza, the Chevron Hotel 11. and King Street sites. He made only one visit, on 20 May 1988, to the Gateway Plaza site but between 9 March and 21 June he entered the Chevron Hotel site on a dozen or so occasions. Between 11 March and 3 June he entered the King Street site on at least a dozen occasions. Croden's uninvited visits were confined to the Chevron Hotel and King Street sites. Maric made unauthorized entrances upon the Gateway Plaza site on seven or eight occasions between 5 May and 19 July and between 3 May and 21 July he entered the Chevron Hotel site on four or five occasions. Between 3 May and 28 July the respondent Doyle made about eight unauthorized visits to one or other of the building sites. The evidence against the respondent Matchett is very slim. He was observed on the King Street site on 4 March in company with Gaines, the seventh respondent, and again on 13 May. The evidence against the respondent Gaines is that he made unauthorized visits to the Chevron Hotel site on two occasions on 18 May, and on one occasion on 27 June. He was also on the King Street site on 4 March and 3 May. The site manager of the Chevron Hotel site, Mr Rea, observed Siddons and Croden in one of the site sheds on 24 May. He asked them why they kept coming onto his company's building sites. The reply was: "We are trying to attack Concretes". On 9 June he told Heffernan that by coming onto the site and stirring up trouble he was causing damage to the applicant's business and that if he did not leave he would call the police. Heffernan replied: "I don't care what you do. We are here to do a job the same as you are. We will continue to come onto the site as long as we are instructed to do so." On 21 June 12. Rea had a conversation with Siddons and Croden in the course of which he told them that he could not understand why they kept coming back onto the site. Croden replied: "You arrested Doug (i.e. Siddons) this morning on this site. That was a big mistake, we have now targeted Chevron, and we are going to keep coming back." It is convenient first to consider the claims in trespass. I do not think that the evidence is sufficient to establish a case against Matchett. But in the case of the other B.L.F. representatives the evidence establishes that, unless restrained by the Court, they will continue to make unauthorized and unwelcome visits to the applicant's building sites. Counsel for Heffernan submitted that the applicant has no right to bring an action in trespass. They argued that the applicant was a mere licensee of the sites upon which the relevant buildings are being constructed and that, as such, it could not maintain proceedings in trespass. As to the Gateway Plaza site, there is uncontradicted evidence that the applicant has been in actual possession of 1t since about July 1986. There. is no evidence to suggest that anybody else has had possession of the site, or of any part of it, since that time. It was a term of the building agreement made between the applicant and the proprietor of the site that "The Builder shall, upon the Proprietor making the Site available to hin, have legal possession of the Site for the purpose of carrying out his obligations under this Agreement ...". It was a 13. further term of the agreement that "The Builder shall allow to the Architect, to the Proprietor, to the other identified Consultants for the Works and to their respective authorized representatives ... access at all reasonable time to the Site and to The Works and to all places where work under this Agreement is being performed ...". In my opinion these provisions should be construed as giving exclusive possession of this site to the applicant while it is constructing the building upon it. Common sense dictates that a builder of a large commercial building in the centre of Sydney must of necessity be given exclusive possession of the building site. This is not to say, of course, that the proprietor might not stipulate that, although having exclusive possession of the site, the builder shall permit restricted access to other persons. In the case of the Chevron Hotel site the evidence is that the applicant has been in actual possession of the site since about February 1988. There is no evidence that, since that time, any other person has been in possession of the whole or any part of it. It is a term of the contract under which the applicant is constructing the building on this site that "The Proprietor shall ensure that the Builder is provided with all necessary possession of the Site on or before the Date for Possession, as may be necessary or requisite to enable the Builder to carry out its obligations in terms of this Agreement." I think the evidence is sufficient to establish that the applicant also has the right to exclusive possession of this site. 14, The building contract for the construction of the building on the King Street site was not tendered in evidence. It was said to have been mislaid. However, oral evidence was given that the applicant has been "in actual possession of the site" since 9 March 1987. In the absence of evidence that any other person has been in possession of the whole or any part of the site since that date and having regard to the nature of the work being carried out on the site and of the site itself, I think it is reasonable to infer that the applicant has exclusive possession of it. It is not in doubt that the unlawful entry by one person onto land in the possession of another is a trespass for which an action lies. See Halsbury, Laws of England, 4th ed., Vol. 45, para. 1384. Nor is it in doubt that a person in possession of land, even if he does not have the legal title to it, may maintain proceedings in trespass: Fleming, The Law of Torts, 7th ed., 1987, p.41. In my opinion, the applicant has established its right to bring proceedings in trespass. Counsel for Heffernan further submitted that their client was entitled to enter the building sites as of right and without the authority of the applicant and that, accordingly, his repeated entries upon the sites did not amount to trespasses. It may be conceded that if the law gives a person authority to enter land, he does not commit a trespass if he enters in pursuance of his authority: Thomas v Sawkins (1935) 2 K.B. 249. The source of Heffernan''s authority to enter the building sites was said to be Articles 19 and 22 of the sen mers re ree 15. International Covenant on Civil and Political Rights, the terms of which are set out in Schedule 2 to the Human Rights and Equal Opportunities Commission Act 1986. Article 19 provides, inter alia, that everyone shall have the right to hold opinions without interference and to freedom of expression. The exercise of these rights are expressed to be subject to such restrictions "as are provided by law and are necessary for respect of the rights or reputations of others and for the protection of national security, public order, public health or morals." Article 22 provides that everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. The Article further provides that no restrictions may be placed on the exercise of this right other than, inter alia, those which are prescribed by law and which are necessary in a democratic society in the interests of public safety, public order or the protection of the rights and freedoms of others. I was not referred to any legislation having the effect of making any provisions in the Covenant part of Australian municipal law. As Mason J. observed in Koowarta v Bijelke-Petersen (1982) 153 C.L.R. 168 at p.224, 1t is a well settled principle of the common law that a treaty not terminating a state of war has no legal effect upon the rights and duties of Australian citizens and is not incorporated into Australian law on its ratification by Australia. This being so, the submission that the provisions of the Covenant give the ~- Won ree eres or 16. B.L.F. representatives authority to enter construction sites in the possession of the applicant fails in limine. I would add that even if the provisions of the Covenant had become part of Australian municipal law, they would not have come to the aid of the respondents in the present case. The argument that Articles 19 and 22 entitle the respondents to commit acts which would otherwise amount to trespasses is insupportable. The respondents' rights, whatever they may be, to engage in industrial and political activity and to freedom of expression could not possibly be construed as affording them the right to enter the applicant's premises against its will. In my opinion the applicant has made out its case in trespass against the B.L.F. representatives, other than Matchett. I am satisfied that, unless restrained by orders of this Court, the trespasses will continue. It is convenient to defer consideration of the case in trespass against the Federal and State Unions and the representative (eleventh) respondents until the claims against them under s.45D of the Trade Practices Act are considered. I turn now to consider the claims under the Trade Practices Act. It is alleged that each of the respondents in concert with one or more of the other respondents has engaged in conduct that has hindered the supply to the applicant of building construction services by workers on the various construction sites, and that this conduct was engaged in for paw cepts aor 17. the purpose, and had the effect, of causing substantial loss or damage to the applicant's business. I do not have any doubt that the conduct that has been engaged in by each B.L.F. representative has been pursued in concert with the other respondents. I think it is a reasonable inference from the totality of the evidence that the great number of trespasses onto the building sites are not unconnected. It may also be reasonably inferred that the trespasses have been committed as part of a course of conduct encouraged and authorized by the Federal and State Unions and engaged in by the other respondents in concert with each other and with the Unions. In making this finding I am conscious of the unique legal status that attaches to the State Union. As I have observed, it is a trade union registered under the Trade Union Act 1881 (N.S.W.) but it has lost its registration under the Industrial Arbitration Act 1940. The legal status of a union registered only under the 1881 Act has been the subject of much judicial comment. The decision of the House of Lords 'in Taff Vale Railway Co. v Amalgamated Society of Railway Servants (1901) A.C. 426 was applied in a line of cases decided in New South Wales in which it was held that a trade union registered under the 1881 Act has quasi-corporate status and is an entity that is distinguishable from the individuals who may be its members: see Egan v Barrier Branch of Amalgamated Miners' Association (1917) 17 S.R. (N.S.W.) 243, Wheatley v Federated Ironworkers' Association of Australia (1960) 60 S.R. (N.S.W.) 161 and the persistent line of authority in the New South Wales 18. Industrial Commission referred to in Moore v Doyle (1969) 15 F.L.R. 59 at p. 116. A different view was initially taken in the Commonwealth Industrial Court (see, for example, Costello v Gietzelt (1960) 1 F.L.R. 446 at p.454), but in Moore v. Doyle (supra) at p.116 that Court expressed the view that a New South Wales registered trade and industrial union is a separate legal entity with a legal personality of its own distinct from its members at any particular time. In arriving at that view the Commonwealth Industrial Court was influenced by powerful dicta in the judgments of Fullagar J. (with whom Dixon C.J. and Kitto J. agreed) and Menzies J. in Williams v Hursey (1959) 103 C.L.R. 30. In Leon Laidely Pty Limited v Transport Workers Union of Australia (1980) 28 A.L.R. 129 Lockhart J. held that the New South Wales Branch of the Transport Workers Union of Australia was a separate entity with a legal personality of its own distinct from its members. In his opinion, the State Union had a corporate personality and was a body corporate. Accordingly, it was a "person" within the meaning of s.45D of the Trade Practices Act. His Honour's decision was affirmed on appeal (28 A.L.R. 589). Two members of the bench on appeal found it unnecessary to express a firm view on the question of the status of the Union, but Deane J. expressed what he described as a "definite view, even if only a tentative one" that a union registered under the provisions of the Trade Union Act 1881 is a separate legal entity with a legal personality of its own distinct from its members at any particular time, is capable of conspiring, and being sued for conspiracy, with its officers poe pore ere eee nope ton 19. and members and is a person for the purposes of s.45D(1) and a "body corporate" for the purposes of s.45D(6) of the Trade Practices Act. It is true that the Transport Workers Union enjoyed registration under the Industrial Arbitration Act 1940. In that respect, the case is distinguishable from the present. But Laidely's Case did not turn on that point. I think the State Union should be treated as a "person" for the purposes of s.45D(1). . I am not in doubt that the actions of the respondents have hindered the supply of building construction services by workers on the construction site. The word "services" is given a wide definition in s.4(1) of the Trade Practices Act and includes benefits that are provided under a contract in relation to the performance of work. There is much evidence, which I accept, that work on the sites has been interrupted when the respondents have trespassed. The substantial question that arises for consideration on this part of the applicant's case is whether it has been established that the respondents' conduct is being engaged in for the purpose, and is likely to have the effect of,. causing substantial loss to the applicant's business. Counsel for Heffernan submitted that the evidence established only that the conduct was, and is being, engaged in by all the respondents for the purpose of pursuing industrial objectives and hence is not caught by s.45D(1). ave 20. I accept that the respondents had an industrial purpose when engaging in the conduct alleged against them. But the real question is whether it has been established that they have two purposes, one an industrial purpose and the other the purpose of causing damage to the applicant's business. It is sufficient for the applicant to prove that the latter purpose is only one of the respondents' purposes, and that it is not their dominant purpose: see s.45D(2). I have not found this question easy of resolution. In many cases when a union and its members engage in conduct for the purpose of pursuing an industrial objective it will not be difficult to prove that another purpose of the conduct is to bring direct pressure to bear upon a corporation, thereby causing it loss. The setting up of picket lines and the imposition of black bans are examples of conduct that may have the dual purpose of achieving an industrial objective as well as causing loss to a corporation: cf. 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. The conduct engaged in by the respondents in the present case is not so readily identifiable as having as one of its purposes the causing of damage. However, the novelty of the conduct is not a reason for exempting it from the operation of s.45D(1) if it is proper to infer from the evidence that it is being engaged in for purposes which include the purpose of causing substantial loss or damage to the applicant's business. saree ey ec meee po " 21. At an interlocutory stage in these proceedings I was of the opinion that the evidence did not establish that in trespassing upon the applicant's premises the B.L.F. represent-— atives had any purpose other than speaking to members of the B.L.F. and other men working on the building sites. At that stage of the proceedings I was of the view that while the representatives may well have appreciated that their presence on the building sites would cause friction with other unionists, it was not one of their purposes to cause substantial loss or damage to the applicant's business. Accordingly, I then dismissed an application that some of the respondents be adjudged guilty of contempt of Court in respect of alleged breaches of interlocutory orders made by Foster J. enjoining them from engaging in conduct proscribed by s.45D(1). However, the evidence now before the Court on this question is much stronger than it was previously. That this is so may be appreciated by contrasting the evidence against Heffernan and Siddons with the evidence that was tendered against them in the contempt proceedings. At that stage of the proceedings, the only evidence against Heffernan was that he entered the Gateway Plaza site and refused to leave upon request on one occasion, i.e. on 18 May 1988. But the evidence now before the Court is that he has trespassed repeatedly upon the Gateway Plaza, Chevron Hotel and King Street sites over the period from 12 May 1988 to 28 June 1988. He must have been aware whenever he trespassed that his presence was likely to have the effect of affecting the work performance of the men on the job. I accept the evidence that 22. the presence of B.L.F. men on the building sites causes trouble with workers employed by sub-contractors. These workers, who are all members of other unions, resent the presence of B.L.F. men on jobs on which they are working. As to Siddons, the only evidence admissible to prove the charge against him in the contempt proceedings was that on one occasion, i.e. 18 May, he entered the Gateway Plaza site without authority and remained for about 45 minutes until the police were called. There was evidence of four other unauthorized entries by him upon the Chevron Hotel site, but those visits occurred outside the period covered by the charge. However, at this stage of the proceedings, the evidence establishes that over a period of about-three months Siddons has trespassed on about twenty occasions on the applicant's building sites. The purpose referred to in s.45D(1) is the "operative subjective purpose of those engaging in the relevant conduct in concert": see Tillmanns Butcheries Pty Limited v Australasian Meat Industry Employees' Union (1979) 27 A.L.R. 367 at p.382 per Deane J. His Honour also said (at p.383) in that case: "...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 [1942] AC 435 at 444-5, 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." oop eas pe 23. To the same effect is the dictum of Bowen C.J. in Laidely that the purpose referred to in s.45D(1) is "the subjective purpose of those who are engaging in the conduct." (28 A.L.R. at p.594). I have already referred to evidence which, in my opinion, goes some way towards establishing that one purpose of the conduct engaged in by the respondents is to damage the applicant's business. I refer to the evidence that on 24 May Siddons and Croden said: "We are trying to attack Concretes" and that on 21 June Croden, in the presence of Siddons said: "you arrested Doug (i.e. Siddons) this morning on this site. That was a big mistake, we have now targeted Chevron, and we are going to keep coming back." Reference should also be made to Heffernan's statement on 28 July when on the Gateway site that: "I will do everything in my power to stop Concretes ... They thought the Courts would stop me, well they didn't." Counsel for Heffernan submitted that this last-mentioned statement was no more than a heated exchange following the death of a builder's labourer on one of the applicant's building sites. Stinson did not concede that this was so. If the statement was not intended by Heffernan to convey that he intended to disrupt the applicant's business he could easily have said so in the witness box. It is significant that no other construction company engaged in major commercial projects has been subjected to industrial action of a similar kind. According to the Manager for Industrial Relations of the Australian Federation of 24, Construction Contractors, up until March 1988 members of the B.L.F, had entered construction sites of most of the companies whose representatives made up the committee of the Federation, but since that time the applicant is the only member of the Federation which has reported unauthorized entries upon its building sites by members of the B.L.F. causing disruption to building operations. If the only purpose of the respondents has been to keep in touch with members of the B.L.F. working on construction sites and to give them pamphlets and other literature proclaiming the Unions' policies, it would have been a simple matter to achieve that purpose without disrupting the applicant's business. There was nothing to prevent the B.L.F. representatives from communicating with the workers by handing them pamphlets and other literature as they entered and left the sites. Indeed, it is reasonable to infer that the Unions have a record of the postal addresses of their members and that correspondence addressed to them through the post would be duly received. The fact that the trespasses have occurred at times when they would almost inevitably distract some workers from performing their ordinary work tends to justify the drawing of an inference that the respondents both knew and intended that disruption would be caused to the applicant's business. The failure of the respondents to give evidence explaining the reasons for their conduct makes easier the drawing of this inference. 25. At first blush, it is not immediately apparent why the respondents have as one of their purposes the causing of substantial loss to the applicant's business. However, I think it would be naive to think that the causing of loss to the applicant was not one of those purposes. It is plain from the pamphlets distributed on the sites that the B.L.F. is making a determined effort to ingratiate itself with men working on the jobs. One way of gaining the allegiance of the men is to show that the 8B.L.F., notwithstanding its deregistration, still remains a force in the building industry. By causing disruption to the applicant's building jobs the B.L.F. is able to show the men that it does, indeed, remain an industrial force to be reckoned with. Having been deregistered as an industrial union, the B.L.F. has lost the right to represent its members before industrial tribunals. No doubt, most if not all of its members have joined other unions. In these circumstances, it is important to the B.L.F. to demonstrate that it still has power and influence. One way, perhaps the only way, of demonstrating this is to show the men on the job that its representatives are above the law and can enter the applicant's premises at will and disrupt its business. I conclude from the whole of the evidence that it was, and remains, one of the respondents' purposes to cause substantial loss or damage to the applicant's business. Counsel for the applicant submitted an alternative argument that it is also one of the respondents' purposes to cause a substantial lessening of competition in the market in which the applicant carries on business: s.45D(1)(b)(ii). I we Sin ee ee cee rene et -p- oe 26. do not find it necessary to reach a conclusion upon this submission, but I am inclined to think that if the applicant had been unable to prove that the respondents' conduct was engaged in for the purpose referred to in sub-para. (b)(i) of s.45D(1), it would have been unable to prove that it was engaged in for the purpose referred to in sub-para. (ii) of that section. To establish a contravention of s.45D(1) it must be shown that the respondents' purpose is to cause substantial loss or damage, and not merely loss or damage. I am satisfied that the respondents' conduct has, on numerous occasions, interfered with the progress of work on the applicant's building sites. Since the question of damages has not been exhaustively examined, 1t would not be appropriate for me to express any concluded view as to the quantum of the applicant's damages. However, as the evidence presently stands, I am satisfied that the repeated distractions on so many occasions of the men working on the jobs has caused substantial loss or damage to the applicant's business. I am of the view that, having regard to the nature of the applicant's business, the loss and damage has been, to use the words of Deane J. in Tillmanns (supra, at p.382) "real or of substance and not insubstantial or nominal". At the time the respondents engaged in the conduct alleged against them their conduct was likely to have the effect of causing substantial loss or damage to the applicant. It was highly likely that the presence of B.L.F. men on the ope pam mp ee o wpe we + 27. jobs would cause interference with the work programmes and that this would be likely to cause substantial loss or damage to the applicant's business. It was submitted by counsel for Heffernan that the evidence did not establish that the conduct in which he engaged, considered in isolation from the conduct of the other respondents, had or was likely to have the effect of causing substantial damage to the applicant's business. I do not think this is the proper approach to take when considering whether conduct offends against s.45D(1). It is conduct "in concert with a second person" at which the sub-section strikes. The consequences of any particular respondent's conduct can only be fully appreciated when it is considered in conjunction with the conduct of all the respondents with whom he has acted and is acting in concert. It would, for example, be wrong to hold that the conduct of an individual member of a picket line is not caught by s.45D(1) (1f otherwise within the sub-section) merely because, viewed in isolation from the conduct of the other persons on the picket line, the individual's conduct does not prevent access to the picketed premises. For the same reason as I have given for finding that the case in trespass against the respondent Matchett is not proved, I am of the opinion that the case against him under the Trade Practices Act is also not established. I turn now to consider the position of the Federal Union. It is now an unincorporated association. Prior to r 28. 1985 a body bearing the name of the first respondent was a union registered pursuant to the provisions of the Conciliation and Arbitration Act 1904. As such, it had a corporate character: see s.136 of the Act and Hursey's Case (supra) per Fullagar J. at p. 52; see also, Trade Union Law in Australia, Smith & Rawson, 1985, at p.53 et seq. However, it has since been deregistered and has therefore lost its corporate status. In my opinion, it was wrongly named as a respondent in these proceedings: see Lloyd, The Law Relating to Unincorporated Associations, pp.150-151 and cases there cited. At a late stage in the proceedings, an application was made under Order 6, rule 13 of the Federal Court Rules for an order appointing the eleventh respondents, to represent all of the members of the unincorporated association. The rule provides, in part, as follows: "Representation: concurrent interests 13. (1) Where numerous persons have the same interest in any proceeding the proceeding may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them. (2) [Appointment of representative] At any stage of a proceeding pursuant to this rule the Court, on the application of the applicant, may appoint any one or more of the respondents or other persons (as representing whom the respondents are sued) to represent all, or all except one or more, of those persons in the proceeding." Notwithstanding the lateness of the application under the rule, I thought it appropriate to make the order sought. we ee ee gt wre - A similar form of order was considered in Taff Vale Railway Company v Amalgamated Society of Railway Servants (1901) A.c. 29. 426 where Lord Macnaghten said at p.438: And at In the "Then, if trade unions are not above the law, the only remaining question, as it seems to me, is one of form. How are these bodies to be sued? I have no doubt whatever that a trade union, whether registered or unregistered, may be sued in a representative action if the persons selected as defendants be persons who, from their position, may be taken fairly to represent the body." p. 439, his Lordship said: "Mr Haldane, indeed, was bold enough to say that if a wrong was committed by a body of persons, acting in concert, who were too numerous to be made defendants in an action, the person injured would be without remedy, unless he could fasten upon the individuals who with their own hands were actually doing the wrong.... It seems to me that this isa reduction to absurdity. I should be sorry to think that the law was so powerless; and therefore it seems to me that there would be no difficulty in suing a trade union in a proper case if it be sued in a representative action by persons who fairly and properly represent it." same case, Lord Lindley said at p.443: "I have myself no doubt whatever that if the trade union could not be sued in this case in its registered name, some of its members (namely, its executive committee) could be sued on behalf of themselves and the other members of the society, and an injunction and judgment for damages could be obtained in a proper case in an action so framed. Further, it is in my opinion equally plain that if the trustees in whom the property of the society is legally vested were added as parties, an order could be made in the same action for the payment by them out of the funds of the society of all damages and costs for which the plaintiff might obtain judgment against the trade union." ee ee aeewes ett tee 30. The Rules of the Federal and State Unions are contained in the one document. The first part of the document contains rules relating only to the Federal Union. Provision is made for a Federal Council composed of the General Secretary and delegates from each Branch of the Federation (Rule 7(a)). Branches may be formed in each State or Territory (Rule 20). The supreme control of the Federal Union is vested in the members but, subject thereto, is exercisable on their behalf by the Pederal Council which has the general control and conduct of the members of the Federation (Rule 8(1)). Provision is made for a Federal Management Committee (Rule 9) consisting of the Federal President, the General Secretary, the Federal Vice-President, the Federal Treasurer and four Trustees. The General Secretary is Norman Leslie Gallagher. Rule 16 and 17 provide for the establishment of a Federal Fund and for Branch Funds, but Rule 15 provides that the property of the Federation shall consist of both the Federal Fund and the Branch Funds. Hence it would appear that such funds as may be from time to time in the hands of the State Union are the property of the Federal Union. Branch Rule 1 provides, in part, as follows: "Subject to the Rules and to the decisions of Federal Council and the Federal Management Committee, the meetings of the Branch shall have the general control and conduct of the business of the Branch and decisions of the meetings shall bind all members of the Branch." The officers of the Branch consist of a President, a Vice-President, Treasurer, Secretary, two Trustees and a 'oro 31. Guardian. The fourth and eighth respondents are the Trustees of the State Union. Black, the third respondent, was variously described in evidence as the New South Wales Branch Secretary of the Federal Union and the Secretary of the State Union. He is also a member of the Federal Council of the Federal Union and of its Federal Management Committee. Great difficulty was experienced by the applicant in obtaining evidence as to the membership of the Unions, their Rules and Constitutions, and their records. Supoenas served for the purpose of obtaining such documents were ignored. The applicant sought an order that Messrs Gallagher, Black, and Matchett be appointed under Order 6 rule 13 to represent the members of the unincorporated association bearing the name of the first respondent. I made the order after notice of the application had been given to those persons. Accordingly, they were added as the eleventh respondents. It was submitted by counsel for the applicant that the evidence disclosed that the Federal and State Unions have a common purpose and that although they are of different legal character, they are, for all practical purposes, identical. I think this submission has substance. As I have observed, by virtue of Branch Rule 1 the general control and conduct of the business of the State Union is made subject to the decisions of the Federal Council and the Federal Management Committee of the Federal Union. The salary of the secretary of the State Union is paid by the Federal Union. The State Union appears to occupy the same office in the Trades Hall Building as does the Federal Union. mee woe Unions clearly appears from the provision made for membership 32. The close association between the Federal and State in the Rules. Rule 6 is as follows: (a) (b) (c) (d) "6. MEMBERSHIP A candidate for membership of the Federation shall forward or cause to be forwarded to the Secretary of the Branch of the State or Territory in which he resides an application, on the form prescribed by the Federation for that purpose, signed by such candidate, and stating his address, and such application form shall be witnessed and accompanied by the Entrance Fee. Subject to Clause ({c) of this Rule upon receipt by the Branch Secretary of the application he shall sign and date same, and the person applying shall thereupon be deemed to be a member of the Federation as from the date of the receipt of such application by the Branch Secretary, and shall be liable from that date for payment of entrance fee, membership fee and/or levy (subject to exceptions hereinafter contained). Notwithstanding anything hereinbefore contained the Branch Secretary shall have and is hereby given the power to refer any application for membership to the Management Committee for consideration and decision, in which case such person shall not become a member until notified to that effect in writing by the Branch Secretary. In the case of the decision of the Management Committee being against the admission of the person applying such person shall have the right to appeal to the Federal Council. The date of such decision of the Federal Council where favourable to the applicant, shall be deemed to be the date of admission to membership. Every member shall be deemed to be attached to the Branch of the Federation established in the State or Territory in which he resides." eee ge 33. Branch Rule 10 provides that all persons desiring to become members of a Branch of the Federation shall be admitted in accordance with the Rules of the Federation (Rule 6, Membership) by signing an application form ... and that upon compliance with the foregoing provisions, a person shall be deemed to become a member of the Federation. The effect of the Rules, as it seems to me, is that no real distinction is made between the membership of the Branches and of the Federation. In the absence of any evidence to the contrary, I think it is reasonable to infer that the conduct of which the applicant complains has occurred with the knowledge, consent and authority of the Federal Council and the Federal Management Committee of the Federal Union. To mention but one aspect of the evidence, it is beyond belief that the conduct of Black in going onto building sites was unknown to and disapproved by the Federal Council. If that was not the fact, it would have been a simple matter to call evidence to disprove it: cf. Gardner v Transport Workers' Union (1985) A.T.P.R. 40-634 at p.47, 158 per Pincus J. The law would be rendered impotent in the present case if, notwithstanding the making of orders against all other respondents, an order was not made binding the members of the Federal Union. There are compelling reasons in the present case why orders should be made protecting the applicant against illegal activity by members of the B.L.F. in all its manifestations if the making of such orders is shown to be justified by the evidence. I think it is. oo 34, The potentially serious consequences to members of the Federal Union of findings made against the eleventh respond- ents, who have been appointed to represent them, are greatly diminished by the provisions of Order 6 rule 13(4), which provides that a judgment pronounced or an order made in a proceeding pursuant to the rule shall be binding on all the persons as representing whom the respondents are sued, but shall not be enforced against any person not a party to the proceeding except with the leave of the Court. Of course, there are almost certainly many members of the Federal Union who are not named as respondents in these proceedings. But this does not prevent the Court granting appropriate relief against them by making orders against the representative respondents. The present case differs from cases such as Attorney-General v Brighton (1964) V.R. 59 where Gowans J refused to make an order that the members of a club, not otherwise parties to the action, be represented by the persons comprising the committee of the club. It is plain from what his Honour said (at p.62) in that case that the committee was not clothed with relevant authority by the members of the club. In the present case the effect of Rule 8 is to give the Federal Council authority to exercise "supreme control of the Federation" on behalf of all the members of the Federal Union. It thus has the authority which the committee did not have in Brighton. In the light of all the evidence and of the Rules I also think it is proper to draw the inference that Black and eee deen el 35. the other B.L.F. representatives have acted, and are acting, as agents for and with the authority of the State Union. Since it has corporate status, the conduct engaged in by Black and the other B.L.F. representatives is deemed to have been engaged in by the Union itself: s.84(2). The applicant is carrying out building work on a number of construction sites other than those referred to in these reasons. These additional sites are referred to in the schedule to the orders I propose to make. The applicant fears that, unless restrained by orders of this Court, the respondents will turn their attention to these sites and engage in similar conduct in respect of them. I think this fear is justified. For the reasons I have given I am of the opinion that the applicant is entitled to relief against'all but the first and eighth respondents. The orders I make are as follows: 1. That the second respondent by itself its servants and agents, and the third, fourth, fifth, sixth, seventh, ninth and tenth respondents be permanently restrained from entering upon the premises described in the schedule hereto and the buildings being constructed thereon. 2. That the eleventh respondents as representing all the members of the Australian. Building Construction Employees' and Builders Labourers' Federation be 36. permanently restrained from entering upon the premises described in the schedule hereto and the buildings being constructed thereon. That the second respondent by itself its servants and agents and the third, fourth, fifth, sixth, seventh, ninth and tenth respondents be permanently restrained from engaging directly or indirectly in concert with another person or other 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 described in the schedule hereto and the buildings being constructed thereon 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. That the eleventh respondents as representing all the members of the Australian Building Construction Employees' and Builders Labourers' Federation be permanently restrained from engaging directly or indirectly in concert with another person or other 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 described in the schedule wore en 37. hereto and the buildings being constructed thereon 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. That the second respondent by itself, its servants and agents, and the third, fourth, fifth, sixth, seventh, ninth and tenth respondents be permanently restrained from: (a) Aiding, abetting, counselling or procuring any person or persons to engage in the conduct referred to in Orders 1, 2, 3, and 4; (b) Inducing or attempting to induce a person or persons, whether by threat, promise or otherwise, to engage in the aforesaid conduct; (ec) Being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the aforesaid conduct; or (d) Conspiring with any other person or persons to engage in the aforesaid conduct. (Rew eer ere et ee ee ee 38. That the eleventh respondents as representing all the members of the Australian Building Construction Employees' and Builders Labourers' Federation be permanently restrained from: (a) Aiding, abetting, counselling or procuring any person or persons to engage in the conduct referred to in Orders 1, 2, 3, and 4; (b) Inducing or attempting to induce a person or persons, whether by threat, promise or otherwise, to engage in the aforesaid conduct; (c) Being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the aforesaid conduct; or (d) Conspiring with any other person or persons to engage in the aforesaid conduct. That the application be dismissed as against the first and eighth respondents. That the respondents, other than the first and eighth respondents, pay the applicant's costs. nd ontp cata ce ee wre ee ag ye ae 9. 39. That the matter stand over to a date to be fixed for consideration of the question of damages. Te er emg mane ye ee te eee . - wf = " 1 paar . (a) (b) (c) (d) (e) (f£) (g) (h) (i) (3) (k) 40. THE SCHEDULE Chevron Hotel, Rockwall Crescent, Potts Point. Gateway Plaza, Cnr. Pitt Street and Reiby Place, Sydney. 135 King Street, 135 King Street, Sydney. Carringbush, 572 George Street, Sydney. Grosvenor Place, Level 3, 117-119 Harrington & Essex Streets, Sydney. Hurstville Viewpoint, Bridge Street, Hurstville. Malabar Sewerage Treatment Plant, Malabar. Pitt Street Hotel, 267 Pitt Street, (Cnr. Bulletin Place), Sydney. Sydney Futures Exchange, 2nd Floor, 117-119 Harrington Street, Sydney. Warragamba Dam, Recreation Area, Warragamba. Yard, 12 Loyalty Road, North Rocks. TY, gore te 41. I certify that this and the forty (40) preceding pages are a true copy of the Reasons for Judgment of his Honour Mr Justice Morling. Associate: Sf Lemend Date: 257 Aepinct SP EF Counsel for applicant: A.B. Shand Q.C. with D.A. Cowdroy instructed by: Westgarth Baldick Counsel for fourth respondent: S. M. Littlemore with M.L. Brabazon instructed by: Geoffrey Edwards & Co. There were no appearances for the first, second, third, fifth, sixth, Seventh, eight, ninth or tenth or eleventh respondents 6 and 7 July 1988; 2,4,9,11, and 18 August 1988 Dates of Hearing: Date of Judgment: 25 August 1988