Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777 TRADE PRACTICES – restrictive trade practices – applicant alleged union liable as an accessory to company's contraventions of ss 45E and 45EA of Trade Practices Act 1974 (Cth) – where contract, arrangement or understanding between company and union – whether contained provision included for purpose of preventing or hindering company from acquiring goods or services from electrical contractors who did not have certified agreement with the union – consideration of 'contract, arrangement or understanding' and 'purpose' – where applicant relied on inferences to be drawn from circumstantial and indirect evidence – where union did not call any witnesses or rely on any affidavit evidence TRADE PRACTICES – whether accessorial liability provisions of Trade Practices Act apply to union that is party to contract, arrangement or understanding contravening ss 45E and 45EA – whether legislature intended to exclude union from liability under ss 76 and 80 – accessorial liability provisions apply to union – consideration of scope of declaratory and injunctive relief Trade Practices Act 1974 (Cth) ss 4, 4D, 4F, 45, 45D, 45E, 45EA, 76, 80 Workplace Relations Act 1996 (Cth) Trade Practices (Boycotts) Amendment Act 1980 (Cth) Workplace Relations and Other Legislation Amendment Act 1996 (Cth) Australian Competition and Consumer Commission v Edison Mission Operations and Maintenance Loy Yang Pty Ltd [2006] FCA 853 referred to Gibbins v Australasian Meat Industry Employees' Union (1986) 12 FCR 450 approved Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Corke Instrument Engineering Australia Pty Ltd (2005) 223 ALR 480 considered Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited Keith Russell Simplicity Funerals Pty Ltd v Cremation Society of Australia (ACT) Ltd (1982) 57 FCR 472 cited Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2004) 141 FCR 183 considered Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission [2005] ATPR 42-078 applied Trade Practices Commission v Email Ltd (1980) 43 FLR 383 considered Trade Practices Commission v David Jones (Australia) Pty Ltd (1986) 13 FCR 446 considered Top Performance Motors Pty Ltd v Ira Berk (Queensland) Pty Ltd (1975) 5 ALR 465 cited Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609 cited Federal Commissioner of Taxation v Lutovi Investments Pty Ltd (1978) 140 CLR 434 cited Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1 cited Australian Competition and Consumer Commission v APCO Service Stations Pty Ltd [2006] HCATrans 272 cited Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 applied Trade Practices Commission v Parkfield Operations Pty Ltd (1985) 5 FCR 140 cited Trade Practices Commission v Service Station Association Ltd (1993) 44 FCR 206 cited R v Associated Northern Collieries (1911) 14 CLR 387 cited Jones v Dunkel (1959) 101 CLR 298 followed News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 applied Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10 followed Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 cited South Sydney District Rugby League Football Club Ltd v News Ltd (2001) 111 FCR 456 considered ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460 applied Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32 cited Australian Broadcasting Commission v Parish (1980) 43 FLR 129 cited Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Ltd (1993) 42 FCR 452 cited Bullock v Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464 considered Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 considered Briginshaw v Briginshaw (1938) 60 CLR 336 followed Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 distinguished L Grollo & Co Pty Ltd v Nu-Statt Decorating Pty Ltd (1978) 34 FLR 81 cited Australian Workers' Union v John Holland Pty Ltd (2001) 103 IR 205 considered Mallan v Lee (1949) 80 CLR 198 considered Giorgianni v The Queen (1984) 156 CLR 473 considered R v Tyrell [1894] 1 QB 710 cited Yorke v Lucas (1985) 158 CLR 661 followed Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 cited Pereira v Director of Public Prosecutions (1998) 82 ALR 217 cited Dowling v Dalgety Australia Ltd (1992) 34 FCR 109 cited Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334 cited Electricity Supply Association of Australia v Australian Competition and Consumer Commission (2001) 113 FCR 230 cited ICI Australia Operations Pty Limited v Trade Practices Commission (1992) 38 FCR 248 considered Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 considered Trade Practices Commission v Mobil Oil Australia Ltd (1985) 4 FCR 296 cited Trade Practices Commission v Walplan Pty Ltd (1985) 7 FCR 495 cited Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563 cited BMW Australia Ltd v Australian Competition and Consumer Commission (2004) 207 ALR 452 cited AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v IPM OPERATION AND MAINTENANCE LOY YANG PTY LTD (FORMERLY KNOWN AS EDISON MISSION OPERATION AND MAINTENANCE LOY YANG PTY LTD) (ACN 055 563 696) AND COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA VID 79 OF 2005