Wribass Pty Ltd v Swallow and Australasian Meat Industry Employees' Union [1979] FCA 3; (1979) 38 FLR 92 (6 February 1979)

FEDERAL COURT OF AUSTRALIA

WRIBASS PTY. LTD. v. SWALLOW AND AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION
(1979) 38 FLR 92
Trade Practices

COURT

FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
Smithers J.(1)

CATCHWORDS

Trade Practices - Secondary boycott - Nature of purposes specified by Act of conduct hindering or preventing supplies of goods and services - "Purpose" defined - Relationship of purpose to participants' hours and working conditions - Whether reasonable steps by union to prevent conduct - Aiding and abetting by union secretary - Substantial loss to plaintiff - Trade Practices Act 1974 (Cth.), s. 45D. The plaintiff, which conducted a supermarket business in Burnie, sought an injunction and damages against the defendants on the grounds that their conduct contravened s. 45D (1) of the Trade Practices Act 1974. The first named defendant was the Tasmanian branch secretary of the second-named defendant. In the course of its business the supermarket offered packaged meat for sale on Saturday mornings. It employed members of the second-named defendant. However these members were not required to work on Saturday mornings. There are no Tasmanian laws governing weekend trading in meat, but in pursuance of union policy opposing weekend trading, the members of the second-named defendant employed at the supermarket's wholesale supplier of meat imposed a "black ban" on supplying the plaintiff's business. The ban extended to members in any wholesaling meat establishment in Tasmania. The plaintiff contended that these members had acted in concert with each other, and that the first-named defendant had acted in concert with them, to cause loss and damage to the plaintiff. An interlocutory injunction was granted to the plaintiff on 16th November, 1978, the matter coming on for trial on 29th November, 1978.

Held:(1) The "purpose" and "dominant purpose" referred to in s.45D(1) and (3) respectively, concern the objective purpose to be discerned from the conduct engaged in. It is sufficient for s.45D(1) if one of the purposes is within the section.

McKernan v. Fraser [1931] HCA 54; (1931), 46 CLR 343, distinguished.

Utah Development Co. v. Seamen's Union of Australia (No. 2) (1977), 17 ALR 15, approved.

(2) In the context of s. 45D the purpose of the actual conduct complained of cannot extend beyond the achievment of the goal which that conduct was capable of achieving; its "purpose" cannot be the promotion of some wider goal which may be attainable if the conduct complained of succeeds in its aim.

(3) The onus is on the defendant to establish that the dominant purpose of the conduct was related to the remuneration, conditions of work or hours of employees under s.45D(3)(a)(i).

HEARING

Melbourne, 1978, November 29; 1979, February 6. 6:2:1979
APPLICATION.

P.C. Heerey, for the plaintiff.

Maureen Hickey, for the defendants.

The relevant facts appear in the judgment.
Cur. adv. vult.

Solicitors for the plaintiff: Crisp Hudson & Mann.

Solicitors for the defendants: Holding Redlich & Co.
SALLY BROWN

DECISION

February 6.

The following judgment was delivered.
SMITHERS J. This is the trial of an action in which the plaintiff seeks

relief against the defendants, the Australasian Meat Industry Employees' Union (the union) and its Tasmanian branch secretary, Mr. Swallow, by way of injunction and damages. This relief is sought in respect of the conduct of the defendants on 23rd October, 1978, and thereafter in the months of October and November 1978 in and about the hindrance and prevention of the supply by S.P. Holman & Sons Pty. Ltd. (Holman), a meat processor and wholesaler, to the plaintiff of meat for sale to the public in the course of the plaintiff's supermarket business in Burnie, Tasmania. This conduct is alleged to contravene s. 45D of the Trade Practices Act 1974 (the Act). (at p93)

2. On 16th November, 1978, upon the application of the plaintiff, an interlocutory injunction was granted in these proceedings whereby the defendants and each of them were restrained until determination of these proceedings or further order from: "(a) doing or continuing or being a party to the doing or continuing of any act in concert with any other person or persons which directly or indirectly causes or procures any embargo or ban to be established or continued upon the handling of meat or meat products intended for delivery to the plaintiff or from aiding, abetting, counselling, inducing or attempting to induce any person in concert with any other person or persons to establish or continue such embargo or ban; (b) engaging in conduct with each other or any other persons so as to hinder or prevent the plaintiff from obtaining meat or meat products for the purpose of its business at 230 Mount Street, Burnie, from S.P. Holman & Sons Pty. Ltd. or Blue Ribbon Wholesalers Pty. Ltd. or any subsidiary or associated company of the said companies or from any other person, firm or company; (c) aiding, abetting, counselling, procuring, being concerned in, inducing or attempting to induce any person whatever to engage in conduct in concert with other persons so as to hinder or prevent the plaintiff from obtaining meat or meat products for the purpose of its business at 230 Mount Street, Burnie, from S.P. Holman & Sons Pty. Ltd. or Blue Ribbon Wholesalers Pty. Ltd. or any subsidiary or associated company of the said companies or from any other person, firm or company." (at p93)

3. The plaintiff conducts business in its main premises on week days and on Saturday mornings and in its milk bar alone on Saturday afternoons and Sundays. The plaintiff purchases all its meat wholesale from Holman. The meat is cut up and packaged by the plaintiff who employs a butcher and butchers' assistants to do this work during normal hours from Monday to Friday. They do no work on Saturday or Sunday. Packaged meat has been sold at the supermarket on Saturdays for some eight years. Until September 1977 the business was carried on by one Mr. Singline. In response to union representations Mr. Singline had suspended Saturday sales for short periods from time to time but Saturday morning trading in packaged meat was conducted by him during about eighty per cent of each year. Since September 1977 Saturday morning trading in packaged meat has been continuous. In the course of this case the parties have substantially ignored the Saturday afternoon and Sunday trading by the plaintiff. It is the Saturday morning trading which is significant to the parties. (at p94)

4. Retail butchers' shops do not open for business on Saturdays or Sundays in Burnie or anywhere else in Tasmania. This is a practice supported by the Meat and Allied Trades Federation of Australia, Tasmanian Division, of which about ninety per cent of Tasmanian retailers and supermarkets are members. This practice is greatly valued by the defendants. The defendants have a genuine fear that the selling of meat by retail on Saturdays may imperil the continuance of the butchers' work-free Saturday morning. So far as conditions in Burnie are concerned it is to be noted that although the supermarkets other than the plaintiff did not open for any business on Saturdays prior to 29th July, 1978, certain supermarkets did then commence Saturday morning trading, in items other than meat, and they have continued so to trade. Packaged meat has been sold by these supermarkets on Monday to Friday since well before 29th July, 1978. (at p94)

5. Mr. Swallow fears that if the plaintiff continues to trade in packaged meat on Saturdays the other supermarkets will soon do so and that retail butchers will be forced to follow suit. If so, it is said, the general practice by which the members of the defendant union do no work on Saturdays may well come to an end. There is little doubt that the conduct the subject of the plaintiff's complaint in this case is prompted basically by the desire to maintain the practice whereby there is no Saturday morning retail meat trade in Tasmania. (at p94)

6. The physical acts and omissions constituting the conduct whereby Holman has been prevented from supplying meat to the plaintiff have been committed by the employees of Holman in the wholesale section (herein they are called "the participants"). On 23rd October, 1978, they and the employees in the retail section resolved in substance that a "black ban" should be placed on the plaintiff and that pursuant thereto meat ordered by the plaintiff from Holman for its supermarket should not be handled by Holman's employees. From 23rd October, 1978, until at least 16th November, 1978, those employees refrained from handling meat ordered by the plaintiff from Holman. Thereafter the ban was lifted pending determination of these proceedings. In these reasons for judgment the acts and omissions of the employees in the wholesale section in refusing to handle and refraining from handling meat ordered or required by the plaintiff from Holman are called "the relevant conduct". (at p95)

7. Prior to the imposition of the ban representations had been made by Mr. Swallow and Mr. Adams, the State assistant secretary of the union, to Mr. Wright and Mr. Basset, the executive directors of the plaintiff, that the plaintiff should cease its Saturday trading in meat, but they had steadfastly refused to do so. It is of course quite lawful for the supermarket to sell meat on Saturdays and there is nothing improper in the union attempting to persuade the proprietors of the supermarket to cease such trading. However it may be a different matter when union members act in concert to take direct action to prevent their employer from supplying meat to the supermarket and the union and any of its officers are involved therein. The plaintiff contends that the steps taken by Holman's employees who are members of the union, in concert with each other, were calculated to and did cause loss and damage to the business of the plaintiff and were in breach of the law and that the union and Mr. Swallow have acted in concert with the union members or have aided and abetted those members in such breach. (at p95)

8. The critical question is whether by reason of the acts and omissions of the members of the union who are employees of Holman in and about the ban and its implementation, and the acts or omissions of the defendant union and of Mr. Swallow in relation thereto, the union has committed or is deemed to have committed a contravention of s.45D(1) of the Act and Mr. Swallow has committed such a contravention. Section 45D so far as relevant and prior to the amendment of 6th December, 1978, (see Act No. 207 of 1978) contains the following provisions:

"(1) Subject to this section, a person shall not, in concert with
another person, engage in conduct that hinders or prevents the
supply of goods or services by a third person to a corporation (not
being an employer of the first-mentioned person), or the
acquisition of goods or services by a third person from a
corporation (not being an employer of the first-mentioned person),
where the conduct is engaged in for the purpose, and would have
or be likely to have the effect, of causing -

(a) substantial loss or damage to the business of the
corporation
or of a body corporate that is related to the corporation; or

(b) a substantial lessening of competition in any market in
which the corporation or a body corporate that is related to the
corporation supplies or acquires goods or services.

(2) Paragraph 4F(b) does not apply in relation to sub-section (1)
of this section but a person shall be deemed to engage in conduct
for a purpose mentioned in that sub-section if he engages in that
conduct for purposes that include that purpose.

(3) A person shall not be taken to contravene, or to be involved
in a contravention of, sub-section (1) by engaging in conduct
where -

(a) the dominant purpose for which the conduct is engaged in is
substantially related to -

(i) the remuneration, conditions of employment, hours of work
or working conditions of that person or of another person
employed by an employer of that person; or

(ii) an employer of that person having terminated, or taken
action to terminate, the employment of that person or of another
person employed by that employer; or

(b) in the case of conduct engaged in by the following persons
in concert with each other (and not in concert with any other
person), that is to say -

(i) an organization or organizations of employees, or an officer
or officers of such an organization, or both such organization or
organizations and such an officer or officers; and

(ii) an employee, or two or more employees who are employed
by the one employer,
the dominant purpose for which the conduct is engaged in is
substantially related to -

(iii) the remuneration, conditions of employment, hours of work
or working conditions of the employee, or of any of the employees,
referred to in sub-paragraph (ii); or

(iv) the employer of the employee, or of the employees, referred
to in sub-paragraph (ii) having terminated, or taken action to
terminate, the employment of any of his employees.

(4) ...

(5) If two or more persons (in this sub-section referred to as
'participants') each of whom is a member or officer of the same
organization of employees (being an organization that exists or is
carried on for the purpose, or for purposes that include the
purpose, of furthering the interests of its members in relation to
their employment) engage in conduct in concert with one another,
whether or not the conduct is also engaged in in concert with
other persons, the organization shall be deemed for the purposes
of this Act to engage in that conduct in concert with the
participants, and so to engage in that conduct for the purpose or
purposes for which that conduct is engaged in by the
participants,
unless the organization establishes that it took all
reasonable steps to prevent the participants from engaging in
that conduct." (at p96)

9. In 1968 meetings of the members of the Tasmanian branch of the union passed resolutions endorsing the principle of a five day week in the meat retail trade and instructing the secretary to take action to stop supplies of meat to any retailer who traded outside the five day Monday to Friday week. In about September 1978 after receipt by Mr. Swallow of a complaint that the plaintiff was retailing packaged meat on Saturday mornings, Mr. Swallow instructed Mr. Adams to ascertain from the plaintiff whether the complaint was true and to advise the plaintiff that if meat were being retailed on Saturday mornings action would be taken to prevent supply of meat to the plaintiff according to the resolution of the members of the branch referred to above. Mr. Adams carried out his instruction by speaking to Mr. Wright but Mr. Wright refused to cease retailing meat on Saturday morning. About a week later Mr. Swallow telephoned Mr. Wright and advised him that members of the north-west coast sub-branch of the union were angry at the plaintiff's weekend trading in meat. During the next three days three members in the retail section of the sub-branch complained to Mr. Swallow of the plaintiff's conduct in relation to Saturday morning trading and inquired whether the policy of the union had changed. As a result of these complaints Mr. Swallow again spoke to Mr. Wright, advised him that because of union policy he had no option but to consider taking action to prevent the supply of meat to the plaintiff and accordingly he would advise the members of the union in Tasmania of the plaintiff's attitude. On 20th October Mr. Swallow visited Mr. Wright and advised him that he had no option but to take action to stop the supply of meat to the plaintiff. With a view to achieving this Mr. Swallow contacted wholesalers of meat in Tasmania to ascertain which of them supplied meat to the plaintiff. He ascertained that the only supplier of meat to the plaintiff was Holman. Mr. Swallow then contacted Mr. Melrose Holman, a director of Holman, by telephone and told him that action would be taken to prevent supply of meat to the plaintiff. (at p97)

10. On 23rd October Mr. Swallow called a meeting of members employed by Holman in its wholesale and retail sections, twenty in all, and advised them of the action being taken in relation to the supply of meat to the plaintiff. By resolution referred to previously that meeting unanimously endorsed the action which Mr. Swallow had taken. This resolution expressed the unanimous intention of the employees of Holman to refuse to load any meat for delivery to the plaintiff, and declared the plaintiff "black" with respect to supplies of meat generally and was in terms wide enough to require employees in any wholesale establishment to refrain from loading or otherwise dealing with meat intended for delivery to the plaintiff. This resolution was implemented by the employees in the wholesale section and a substantial quantity of meat ordered by the plaintiff from Holman was not handled in any way. (at p97)

11. The writ in these proceedings was issued on 9th November, 1978, and the interlocutory proceedings mentioned above came on for hearing on 15th November, 1978. At that hearing Mr. Swallow sought an adjournment in order to obtain legal representation. That adjournment was granted upon an undertaking of Mr. Swallow to recommend to members of the union employed by Holman at a meeting of those members that normal supplies of meat to the plaintiff be resumed. A meeting was held on the next morning, attended by 130 members of the union employed by Holman in its wholesale, retail, export and other sections. Mr. Swallow reported the situation and the undertaking that he had given to the court. A motion was moved and seconded in accordance with the undertaking but an amendment was moved and carried that the ban imposed should remain until such time as the court might make an order in the proceedings. The amendment was carried by 115 votes to fifteen. (at p98)

12. On 16th November the interlocutory injunction mentioned above was granted by Keely J. As a result of the proceedings before Keely J. of 16th November Mr. Swallow called a meeting of the members of the union employed by Holman which was held at noon on 17th November, 1978. The meeting was attended by 100 members and Mr. Swallow reported the making of the court's order and moved a motion which was seconded by one Mr. Lewis that the court's order be adhered to. An amendment was moved by one Mr. Lawson and seconded by one Mr. Koeford that supplies to the plaintiff be not resumed until such time as the result of meetings of the union members in Launceston and Hobart was known and that the meeting agreed to abide by the majority decision made at those later meetings. This amendment was carried. (at p98)

13. The executive of the Tasmanian branch of the union met on 17th November and passed a recommendation which was subsequently endorsed by the committee of management of the branch. That recommendation was, in substance, that the committee of management condemned the court action as an unnecessary provocative (sic.) and called upon the State Minister for Employment and Industrial Relations to introduce trading hours legislation to protect the members of the union and the industry in general, and that furthermore the secretary continue to protect and preserve the working conditions of the membership, that the secretary's action to date came within this ambit and had been necessary and correct, and furthermore that he be directed to continue to take such necessary steps and legal instructions and advice to resolve the dispute to the satisfaction of the membership, that the committee of management had no alternative but to commit whatever resources were necessary to safeguard the union's interests, that whatever action was necessary for the secretary to engage in during this dispute should have the authorization of the committee of management, and further that the executive recommendation be forwarded to the committee members by telegraphic vote requesting a reply in favour or against not later than 20th November, 1978. (at p98)

14. The meetings of members were held in Launceston, and Hobart on 20th November at which two resolutions were passed, the terms of which were as follows: (a) "'That this meeting declares full support for executive officers' recommendation of Friday 17th November, 1978, at 3 p.m. resolved unanimously by the State branch committee of management on Monday 20th November, 1978.' That is, the committee of management of the A.M.I.E.U. Tasmanian branch condemns the Federal Court action as an unnecessary provocative (sic.) and we call upon the State Minister for Employment and Industrial Relations to introduce trading hours legislation to protect the membership of the A.M.I.E.U. and the industry in general. Furthermore the secretary continue to protect and preserve the working conditions of the membership. The secretary's action to date comes within this ambit and has been necessary and correct. Furthermore he is directed to continue to take all necessary steps and legal instructions and advice to resolve the dispute to the satisfaction of the membership. We have no alternative but to commit whatever resources that are necessary to safeguard our interests. Whatever action is necessary for the secretary to engage in during this dispute shall have the authorization of the committee of management. Further that the executive recommendation be forwarded to committee of management members by telegraphic vote requesting reply in favour or against by no later than noon Monday 20th November, 1978." (b) "1. Move that the ban on Singlines Burnie Supermarket be lifted until Thursday 30th November, 1978, the date set for the final hearing of the case, to allow the secretary sufficient time to bring about an early resolution to the trading hours dispute. 2. To resolve the trading hours problem this meeting urges discussions with employers and we call upon the State Government to introduce trading hours legislation to protect the working conditions of members in the retail section. 3. This meeting declares that these matters can only be resolved in the industrial arena and not by legal means. 4. This meeting declares full support towards the industrial action to be decided by the secretary which will enable an early resolution to the dispute. 5. So as the members in the retail section are kept fully informed a report back meeting will be held at 2 p.m. on Friday 1st December, 1978." (In the case of the Hobart meeting the date was Monday 4th December, 1978). It appears that the ban in fact was lifted on or about 16th November. (at p99)

15. In connexion with the ban, Mr. Swallow communicated with various wholesalers from whom he thought that the plaintiff might endeavour to obtain alternative supplies. He informed them of the proposed or existing ban and indicated to them expressly or impliedly that it would not be wise for them to supply meat to the plaintiff while the ban was operative. Certain wholesalers did secretly supply some meat to the plaintiff in the dead of the night and by other subterfuge, endeavouring to conceal from the union that they were doing so. But the supplies so obtained by the plaintiff were far below its requirements and it is probable that had the ban been maintained it would have been impossible for the plaintiff to continue to obtain supplies of any significance. (at p100)

16. The employees of Holman who on 23rd October voted for and acted in accordance with the ban on the plaintiff were partly employees usually employed in the wholesale section of Holman's business and partly employees usually employed in the retail section. It was the employees in the wholesale section who implemented the ban. There was some changeover by staff between the two sections but only to a very limited extent and restricted generally to filling in for staff in another section who were temporarily absent through sickness or for some other special reason. In relation to the issue arising under s. 45D(3) it is material that all the employees being members of the union who voted for and acted in accordance with the ban on the plaintiff were employees of the one employer. (at p100)

17. It is apparent that the ban and its implementation were in accord with union policy and that Mr. Swallow has acted with the authority of the union in taking steps designed to procure the imposition of the ban and to make it effective. However, Miss Hickey, counsel for the defendants, has contended that on the evidence neither the union nor Mr. Swallow are shown to have contravened the provisions of s. 45D(1) and that the circumstances are not such that by reason of s. 45D(5) the union is to be deemed to have contravened these provisions. She contended: (i) it does not appear that the purpose of the employees in imposing and implementing the ban was to cause substantial loss and injury to the plaintiff in its business; (ii) within the meaning of s. 45D(3) the dominant purpose of the relevant conduct was substantially related to the hours and conditions of work of the employees who committed it in their employment with Holman or of their fellow employees; (iii) in any event the union had taken all reasonable steps to prevent the participants in the relevant conduct from engaging in that conduct and accordingly is not to be deemed to have acted in concert with the participants in that conduct (s. 45D(5)); (iv) it did not appear that Mr. Swallow had personally aided and abetted the employees in their conduct in relation to the imposition and implementation of the ban; (v) in any event, Mr. Swallow acted honestly and reasonably and having regard to all the circumstances of the case ought fully to be excused pursuant to s. 85(6) of the Act; (vi) it does not appear that the relevant conduct has or would be likely to cause such loss and injury; (vii) the ban had been lifted and it does not appear that it is likely to be reimposed.

THE PURPOSE OF THE RELEVANT CONDUCT. (at p100)

18. Miss Hickey submitted that on the evidence the proper inference is that the real purpose of the ban and its implementation was to protect the work-free Saturday morning of the employees who imposed and implemented it in their employment with Holman or of their fellow employees and, to a lesser extent, to protect the free Saturday morning of employees engaged generally in the retail butcher business in Northern Tasmania and not to injure the plaintiff in its business. She contended that in determining what was the intention of the employees who imposed and implemented the ban the court should adopt an approach similar to that taken by the High Court in McKernan v. Fraser [1931] HCA 54; (1931) 46 CLR 343 . In that case the cause of action was based upon acts done in furtherance of a conspiracy allegedly for the purpose of injuring the plaintiffs in their employment. The allegation was based upon the refusal by fellow workers who were members of a particular union, acting in concert, to accept certain employment if the plaintiffs were also given such employment and the action of the defendant, the union secretary in connexion with that refusal. The High Court took the view that, although the result or even the intention of the defendant in his actions was to exclude the plaintiffs from engagement by the employer unless they ceased to support a rival union, the real purpose of the defendant was to protect the interests of members of his union. It was held that in view of the existence of that real purpose the conduct of the defendant, which otherwise might have supported the cause of action alleged, was not unlawful. The view adopted appears in particular from the remarks of Dixon J. (as he then was) where, in speaking of the tort of conspiracy wilfully to injure another, he said: "It appears now to be settled that, for a combination or acts done in furtherance of the combination to be actionable in such circumstances, the parties to the alleged conspiracy must have been impelled to combine, and to act in pursuance of the combination, by a desire to harm the plaintiff, and that this must have been the sole, the true, or the dominating, or main purpose of their conspiracy. At any rate so I understand the doctrine which has slowly won its way to final acceptance by the House of Lords (Sorrell v. Smith (1925) AC 700 ). To adopt a course which necessarily interferes with the plaintiff in the exercise of his calling, and thus injures him, is not enough. Nor is it enough that this result should be intended if the motive which actuates the defendants is not the desire to inflict injury but that of compelling the plaintiff to act in a way required for the advancement or for the defence of the defendants' trade or vocational interests" (1931) 46 CLR, at p 362 . See also the remarks of Viscount Simon L.C. in Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch [1941] UKHL 2; (1942) AC 435, at pp 441 et seq . Where the cause of action is not based upon an alleged combination or conspiracy to injure but upon conduct engaged in by two or more persons in concert for a specified purpose as is the case under s. 45D(1), the question is not what is the real, ultimate or main purpose but whether one of the purposes of the conduct is that specified in sub-s. (1) of s. 45D. And it is clear from s. 45D(2) that a person is deemed to engage in conduct for a purpose mentioned in s. 45D(1) if he engages in conduct for various purposes so long as the purpose mentioned in s. 45D(1) is one of them. See the judgment of Keely J. in Utah Development Co. v. Seamen's Union of Australia (No. 2) (1977) 17 ALR 15 and Industrial Enterprises Ltd. v. Federated Storemen and Packers' Union of Australia Unreported (Federal Court of Australia, Lockhart J., 5th January, 1979). . The same concept is implied in s. 45D(3). (at p102)

19. However, supporting her first contention in a slightly different way, Miss Hickey said that the infliction of loss and damage upon the plaintiff's business was not a purpose of the participants in the relevant conduct at all because their whole concern was with their hours of work. She urged that there is a distinction to be drawn between purpose and consequence and that any loss and damage suffered by the plaintiff was but incidental to and a mere consequence of the pursuit of the one and only purpose. Miss Hickey submitted that the protection of the participants' hours of work was at least the dominant purpose and that as such it performed two functions. It reduced the damage to the plaintiff which flowed incidentally from it to a mere consequence, and it provided a defence under s. 45D(3). (at p102)

20. In respect of both these submissions it is convenient to observe that the purpose referred to in s. 45D(1) and the dominant purpose referred to in s.45D(3) is the purpose for which the conduct which hinders and prevents the supply or acquisition of goods or services, considered as such, is engaged in. This may not be the ultimate purpose for which participants acted in concert in engaging in that conduct. The question differs from that in McKernan v. Fraser [1931] HCA 54; (1931) 46 CLR 343 in that under s. 45D(1) the issue is not whether persons combined for a particular purpose but whether particular conduct was engaged in for a specified purpose, albeit that it was engaged in by persons acting in concert with each other. In s. 45D(1) the impropriety which is proscribed is engaging in conduct that hinders or prevents the supply or acquisition of goods and services where that conduct is engaged in for the specified purpose and doing so in concert with another person. The critical and specified purpose is the purpose for which the conduct itself is engaged in. Similarly in s. 45D(3) the dominant purpose therein specified is not the dominant purpose for which the participants may act in concert, but that limited purpose for which the conduct which hinders or prevents the supply or acquisition of goods and services is engaged in. (at p102)

21. The conduct in which the participants engaged was to refrain from handling meat supplies for the plaintiff. Such conduct may have been engaged in for various purposes. Clearly one such purpose and the most limited was to cut off the plaintiff's meat supplies. Another such purpose was to so damage the plaintiff's business as to force it to cease to trade in fresh meat on Saturday mornings. Each of these purposes was a purpose for which the actual conduct itself was engaged in and would satisfy the requirements of s. 45D(1). Of course the conduct was engaged in in concert with the intention of achieving something which would tend to procure the work-free Saturday morning. In other words the motivation of the conduct, the dominant purpose of which was to force the plaintiff to give up Saturday trading in fresh meat, was to contribute to the preservation of the work-free Saturday morning. (at p103)

22. It appears to me that in the context of s.45D the concept of the purpose for which the actual conduct was engaged in does not extend beyond the achievement of the goal which that conduct was capable of achieving. In relation to the conduct which prevented supplies of meat reaching the plaintiff that particular conduct could achieve nothing more than the cessation of Saturday morning trading in fresh meat by the plaintiff. That was the dominant purpose of the actual conduct. The wider and ultimate purpose of maintaining the work-free Saturday morning was the goal which it was hoped and intended would be promoted by achieving the purpose for which the actual conduct was engaged in. (at p103)

23. If s. 45D(1) and 45D(3) is construed by reference to these considerations, the application of the section proceeds in a practical and rational way free from the difficulties which are present if in relation to the identification of purposes one is required to seek, not the purpose of the actual conduct but the ultimate purpose of the participants performing that conduct in concert with each other. Thus where it may be proper to infer that the exercise of the participants taken as a whole was to protect their hours of work in their employment it could hardly be said that that was not a purpose substantially related to their hours of work. Indeed such a purpose by its very terms relates intrinsically and directly to that and nothing else. Accordingly, as was the tenor of Miss Hickey's submission in this case, the problem under s. 45D(3)(a) would be resolved in favour of the participants by their state of mind determined subjectively. The submission was that once it appeared that the participants genuinely believed rightly or wrongly that the action taken by them was appropriate to ward off a threat to their hours of work there was revealed a purpose substantially related to those hours of work. She said that, subject perhaps to the element of substantiality being determined objectively, the rest of the relevant conception was to be determined subjectively according to the state of mind of the participants. If this were the intention of the legislature it might well have been expressed in simple and direct language rather than the somewhat tortuous expression in the opening words of s. 45D(3)(a). But if the relevant purpose for both s. 45D(3)(a) is the purpose of the conduct that hinders and prevents, rather than the ultimate result that might be promoted if that purpose were achieved, that tortuous language could hardly be avoided. In this connexion the form of expression used in s. 45D(3)(a) and (b), introduced by the Trade Practices Amendment Act 1977 (Act No. 81 of 1977), may be contrasted with that used in s. 51(2)(a) as in force before it was amended by Act No. 81 of 1977 and indeed the limited range of the expression in that paragraph is apparent from the judgment of the majority in Ausfield Pty. Ltd. v. Leyland Motor Corporation of Australia Ltd. (1977) 30 FLR 477 . The legislature having put its hand to the protection of traders from conduct that hinders or prevents the supply to or acquisition by them of goods and services but withholding that protection in cases where the conduct is substantially related to the hours and conditions of employment of the participants could not be thought in the absence of clear expression to that effect to intend to withhold it where the participants believed, no matter how unreasonably or irrationally, that to engage in that conduct in concert with each other was so related. (at p104)

24. If in this case one seeks the purpose or the dominant purpose of the conduct which hindered or prevented the supply of meat by Holman to the plaintiff, the answer is clear. The purpose was to compel the plaintiff to give up Saturday morning trading in packaged meat and to do so by causing substantial loss and damage to its business until it did. In my opinion this was the purpose of those acts and omissions of the participants whereby the meat ordered or required by the plaintiff from Holman was not handled by Holman's employees. (at p104)

25. In the light of these considerations, the submission that the causing of damage to the plaintiff in its business was not a purpose at all because of the presence of the overriding purpose of protecting the hours of work of the participants or their co-workers loses its force. If one is looking only at the conduct that hinders and prevents, and not at the exercise in its totality, that last-mentioned purpose is not seen, and is not present. The conception of the purpose of the conduct that hinders and prevents is narrower than the concept of the purpose of the participants' exercise considered as a whole. In my opinion this is the effect of s. 45D on its proper construction. (at p104)

26. In connexion with the defendants' first contention, it remains to consider more particularly whether in fact the participants refrained from handling meat ordered by the plaintiff from Holman for the purpose of causing substantial loss and damage to the plaintiff. In my opinion the answer is in the affirmative. Miss Hickey said that the evidence just did not disclose that the purpose of the employees who imposed the ban and implemented it was to cause loss or damage to the plaintiff's business. The basis of this submission was that it was not inevitable that the loss of meat supplies would cause loss to the plaintiff. But the manifest intention of the ban was to put pressure on the plaintiff by depriving it during the period of the ban of meat to sell in its business. A ban which did not cause substantial loss and damage would be unlikely to apply any pressure. It cannot be doubted that the purpose of the ban and the cutting off of the plaintiff's supplies was to cause sufficient loss and damage to the plaintiff's business to compel it to comply with the demands of the union. Mr. Swallow quite frankly agreed that, in substance, the purpose of the ban was to make things uncomfortable for the plaintiff in whatever way the ban might operate. He said that whether the plaintiff lost money or not was the plaintiff's choice. Inevitably it was Hobson's choice. The plaintiff had to give in or take the consequences. And it is to be observed that the ban was imposed on 23rd October, 1978, after Mr. Swallow informed the meeting of that date of action already taken by him which included intimations to other wholesalers not to supply the plaintiff when Holman did not. Accordingly the decision by the employees of Holman not to handle meat for the plaintiff was taken in the knowledge that the plaintiff would be in difficulty in obtaining alternative supplies. It is not for the defendants to say that the relevant conduct would cause no loss or damage if the plaintiff gave in. The condition that the ban would apply until the plaintiff gave in was one the participants in the conduct had no right to impose and the plaintiff had every right to ignore.

THE RELATIONSHIP OF THE DOMINANT PURPOSE TO HOURS AND CONDITIONS OF WORK-s. 45D(3). (at p105)

27. It appears from the foregoing that it is my view that the dominant purpose of the relevant conduct was to force the plaintiff to cease to trade in packaged meat on Saturday mornings. Accordingly, if this purpose was substantially related to the hours and conditions of work of the participants in the relevant conduct, or of their fellow employees of Holman in their employment with Holman, the participants would not be taken to be in contravention of s. 45D(1) by engaging in that conduct: see s. 45D(3)(a). It is a rational view that if the Saturday trading of the plaintiff did in fact imperil the work-free Saturday materially that would be a factor substantially related to the hours and conditions of persons employed by retail butchers because it would tend to cause a variation in the existing agreement as to the hours of work to be performed by employees in accordance with the terms of employment currently accepted by the employers and employees. Compare Ascot Cartage Contractors Pty. Ltd. v. Transport Workers' Union of Australia (1978) 32 FLR 148 where changes in the current terms of employment which depended solely upon the terms of an award, were not involved. The critical question is therefore whether the evidence establishes on a balance of probabilities that the continuance of trading in packaged fresh meat by the plaintiff on Saturdays was likely to have a material impact on the hours of work or working conditions of the employees in Holman's retail section. (at p106)

28. The imposition of the ban was as stated above, effected by resolution of a meeting of employees of both the wholesale and retail sections of Holman. But the relevant conduct in implementation of the ban was committed by all the employees in the wholesale section of Holman. They refused to handle meat ordered by the plaintiff from Holman and refrained from the handling of it. The employees of Holman who were employed in the retail section played the role of persons concurring in, counselling and encouraging those in the wholesale section in refraining from handling such meat. (at p106)

29. It is not suggested that the dominant purpose was related to the hours or conditions of work of the employees in the wholesale section, but it would seem that it would be sufficient for the defendants to show that the purpose in question was substantially related to the hours and conditions of the employees in the retail section, each of such employees being "another person employed by an employer of" one of the participants. Evidence as to the existence and extent of the relationship between the plaintiff selling packaged meat on Saturdays and the hours worked or to be worked by the employees of Holman in its retail section was given by two employees of Holman as well as Mr. Oswin, Mr. Swallow and Mr. Holman. The two employees who gave evidence were both employed in Holman's retail section. Mr. King said he voted for the resolution which was carried on 23rd October, 1978, because Mr. Swallow put to the meeting "the case about Saturday morning trading". It appears that he understood that case to be that if the plaintiff continued to sell packaged meat on Saturday mornings supermarkets and retail butchers would open. It appears also that Mr. King accepted this "case" partly because of his experience of what had happened in Melbourne in 1952 when the market in Prahran commenced to trade on Saturdays during the football season from April till September. He expressed his view as being that, "it only needs one person in Tasmania to open and within twelve months the rest will fall into line". However, when Mr. King was asked whether he thought that the possible development to which he referred would have any impact on his own hours of work he replied: "It most certainly would. I might not be employed by Holmans for the rest of my life. If I have to go to a supermarket or a butcher shop and if the boss says I work on Saturday morning. That was the thought of most members. Just because we enjoy the hours at Holmans it does not mean to say that we are all going to be employed at Holmans until the end of our working period." The implication in this answer is, as Mr. Heerey, counsel for the plaintiff, stressed, that notwithstanding the possible developments that Mr. King had in mind he did not anticipate that the working hours of the employees of Holman would be affected. It would be only if he changed his employer that he feared he might have to work on Saturday mornings. It indicates also that the possibility of Mr. King changing to some other employer was not in Mr. King's contemplation save in the context that change from time to time may be in the nature of any working man's life. It indicates that Mr. King certainly had no present intention of changing his employment and did not anticipate any likelihood of a change in the foreseeable future. And Mr. King attributes similar attitudes to the other employees. Mr. Dickenson the other employee who gave evidence summed up his attitude and what he thought was that of the other employees when he said: "We voted against the impression we were given that we would possibly be opening on Saturdays if it was allowed to go forward." By the word "it" Mr. Dickenson was referring to the plaintiff's Saturday morning trading in packaged meat. He said he was in favour of the ban being imposed on the plaintiff because "should they open and everybody followed suit we would, we naturally thought we would be opening and working a six day week". Asked what made him think everybody would follow suit he said "just the trend". Mr. Dickenson was not a witness of conviction. It is my conclusion that he was echoing the view of Mr. Swallow as expressed at the meeting as to the possible effect of the plaintiff's Saturday trading on retailers generally and was not intending to state that he feared a change of hours while employed by Holman. Reliance could not be placed on his statement that there was any real possibility that within the forseeable future Holman would open on Saturday mornings and require its retail butchers' staff to work on Saturday mornings, if indeed that were his view. Much more reliable is the implied assertion by Mr. King that taking all the possibilities into account, even in the event of the plaintiff continuing to trade on Saturdays in packaged meat, he did not foresee Holman opening for retail business on Saturdays. It is for the defendants to establish that there was a substantial relationship between the plaintiff continuing to trade on Saturdays and the hours that the retail butchers on Holman's staff may be required to work in the immediate future or perhaps the foreseeable future. (at p107)

30. It is to be observed that Holman employs in the vicinity of 100 men in the wholesale and export and other sections of its business and about twelve in the retail section. Its premises are three to four kilometres "out of town" and away from the main business area of Devonport. Devonport is over fifty kilometres from Burnie. Since 1966 the trading hours of Holman's retail shop have been from 7 a.m. until 3 p.m. Monday to Friday. The trading hours of retail butchers in Devonport are from some time after 7 a.m. to 6 p.m. Monday to Friday. (at p108)

31. It is clear from the evidence of Mr. Holman, a director active in the management of Holman, that Holman has no plans to open its retail shop on Saturdays and that Mr. Holman does not anticipate circumstances arising which would cause it to consider opening on Saturdays. Factors tending against opening on Saturdays are that: (a) due to the nature of its business and its location Holman does not conform to the general Devonport retail butchers' trading hours. Mr. Holman put it that "it is a situation . . . peculiar to ourselves in as much as we are isolated from the town"; (b) penalty rates of time and a half for the first two hours and double time thereafter are a deterrent; (c) the employees are against working on Saturday morning and according to Mr. Holman, that would be a "foremost" factor and "if it (is) the wish of the employees not to work on Saturday morning it would be rather difficult to open . . .". (at p108)

32. Asked whether if the supermarkets in Devonport and the retailers opened on Saturday morning that would affect the company's policy Mr. Holman said, "yes it could have an effect, but without it coming into being I would be rather doubtful as to what effects it would have. It is a hypothetical situation which in all honesty I cannot anticipate". He agreed that where some traders decide to open on Saturday mornings some of the others may be forced to follow suit and that had happened in Devonport to some extent. But Mr. Holman did not anticipate that a situation in which his company would have to consider opening on Saturday mornings was likely to arise in the foreseeable future and he was unable to say what decision on the point would be likely to be made if it did. (at p108)

33. But Mr. Swallow asserted that in the circumstances which had arisen in Burnie since 29th July last it was extremely likely that unless the plaintiff ceased to sell packaged meat on Saturday mornings the supermarkets would do so and the retail butchers would be forced to trade on Saturdays. As noted above on 29th July ceertain supermarkets which did not formerly open for business in Burnie on Saturday mornings decided to do so and have since done so. However, they did not trade in fresh meat. Mr. Swallow said that if the supermarkets and retailers opened in Burnie the same would occur in Devonport and generally throughout the north coast at least. He said that in past years it was part of his function as secretary of the Tasmanian branch of the union to be alert to discover if any and what traders were selling meat on Saturdays, and negotiate for a cessation thereof. He said that his negotiations had generally been successful. It appeared that Mr. Singline, the former proprietor of the plaintiff's supermarket, was a persistent trader in packaged meat on Saturdays, that Mr. Swallow would protest from time to time and that Mr. Singline would heed the protest for a time and then resume selling meat on Saturdays. In the case of Mr. Singline, Mr. Swallow was only twenty per cent successful and the fact is that speaking generally the supermarket now run by the plaintiff has been selling packaged meat on Saturday mornings for some eight years. It appears that in or about 1968 an agreement was effected with the Meat and Allied Trades Federation in Tasmania that there should be no trading in fresh meat by retail on Saturday mornings. According to Mr. Swallow representatives of the federation have stated that should any retailer commence to sell meat on Saturday mornings all members of the federation would do so. Mr. Swallow said that various supermarkets, including Coles New World, although not members of the federation accept the agreement, but have stated that if a competitor is allowed to sell meat in a supermarket on Saturday or Sunday they reserve the right to trade on Saturdays and not only will they have meat for sale but will be employing union labour when trading on Saturday or Sunday. (at p109)

34. Mr. Oswin who has been the secretary of the Tasmanian division of the Meat and Allied Trades Federation of Australia since August 1978 gave evidence that the division's members comprised ninety per cent of the retail butchers and supermarkets of Tasmania and that the division was opposed to trading hours outside Monday to Friday 7 a.m. to 6 p.m. The division does not like to see retailers going outside those hours. He said that retail butchers are loath to have the extra costs put on them in Saturday trading if they have to go into the retail market to compete with the supermarket. He said that the policy of the division was that if the 1968 agreement is broken by supermarkets retail butchers will have to trade on Saturdays to retain their custom. He said he understood that if the agreement were broken "it has always been up to Mr. Swallow to police any breakage". (at p109)

35. On the general probabilities of the effect of the plaintiff continuing to trade, however, certain general considerations are relevant. Clearly Mr. Swallow and Mr. Oswin are concerned to maintain the work-free Saturday mornings for retail butchers. Both are apprehensive that a material breach in the general practice of not selling meat on Saturdays will lead to a general breakdown of the practice. No doubt employers are very willing to convey to Mr. Swallow the idea that they will sell meat on Saturdays if other traders do or perhaps if any one trader does. If Mr. Swallow can be encouraged to remain vigilant and bring his influence and that of his union to bear on any trader who shows a disposition to depart from the existing practice that is all to the good for them. The statements made by the supermarkets and others to Mr. Swallow are therefore to be treated with reserve. It is a feature of this case that although the supermarkets have been opening on Saturdays since July they do not sell meat on Saturdays. According to Mr. Swallow if one trader breaks the others will follow suit within a week. The fact is that traders in Burnie have not followed suit during the last eight years. When the supermarkets opened for Saturday trading in Burnie on 29th July last that change in trading must have been pursuant to policy decisions at high management level. When those policy decisions were made one matter decided must have been that, despite the long standing practice of the plaintiff to sell meat on Saturday, the supermarkets would not follow suit. To my mind also it is significant that no executive officer of any supermarket at Burnie has been called to give evidence. If it be the fact that the selling of meat on Saturdays by the supermarket has become imminent if the plaintiff continues to sell on Saturday, although it was not imminent last July, that fact should not have been difficult to prove. If, also, any retailer in Burnie has decided that if the plaintiff continues to sell meat on Saturday, and certainly if the supermarkets do so he will follow suit, that would not be difficult to prove. The fact that these proceedings came on for hearing in Burnie makes the failure to submit any evidence along those lines perhaps the more significant. The only active trader who gave evidence was Mr. Holman who obviously will be surprised if Saturday morning selling of meat by retail were to spread to Devonport, and subject to commercial imponderables, certainly does not anticipate ever asking his employees to work in his retail shop on Saturdays. The reality seems to me to be that neither the supermarkets nor the retailers desire to sell meat in Burnie on Saturdays or perhaps particularly, to employ retail butchers at penalty rates. I am not satisfied that it is probable that they will be induced to change their practice in this respect in the near or even the remote future because of the plaintiff continuing to sell on Saturdays. (at p110)

36. Those factors which have operated to induce the supermarkets other than the plaintiff not to sell meat on Saturdays are likely to continue to operate in Burnie and no doubt even more likely to do so in Devonport. Even if a change in the trading pattern occurred in Burnie it cannot be thought probable that traders in Devonport would extend their meat trading hours into Saturday. (at p110)

37. Finally if the selling of meat on Saturday mornings did spread to Devonport it cannot be said to be probable that Holman would open on Saturdays. Accordingly I am not satisfied on a balance of probabilities that the dominant purpose of the conduct engaged in by Holman's employees, namely to force the plaintiff to discontinue its practice of selling meat on Saturdays is substantially related to the remuneration conditions of employment, hours of work or working conditions of those employees or of any other employee of Holman.

THE UNION'S ACTIONS - s. 45D(5). (at p110)

38. I am unable to accept the contention that within the meaning of s. 45(5) the union took all reasonable steps to prevent the participants from engaging in the relevant conduct. The truth is rather the reverse. It has been union policy since 1968 that where there is any attempt to trade outside the five day working week, Monday to Friday inclusive, supplies of meat to the offending retailer should be stopped. Mr. Swallow said that the policy was clear, he had no discretion, and his duty was to implement it. (at p111)

39. When the matter came up for union re-consideration as a result of these proceedings the policy was in substance affirmed. Certainly the union has so acted that the ban on the plaintiff and its implementation has been suspended until this case has been decided, but it is clear that but for the intervention of the court, and subject to any order restraining the defendants from taking action to enforce the ban, the probability is that it will be enforced. The following passage in Mr. Swallow's evidence is relevant.

"MR. HEEREY: Q. And assuming the supermarket does not bow
to your wishes the ban will go back on? A. The wishes of the
membership, Mr. Heerey. It is quite obvious why the resolution
was carried in this vein; the members believe we can win it in
court."

"Q. I suppose every litigant believes he can win and I do not
blame you for that. However, the fact of the matter is, if you do
win, the ban goes back on and unless Singlines Supermarket
agrees to the union demand the ban will stay on permanently?
A. I would put it this way, that if we win, and we expect to, the
supermarket proprietors will see that they are doing the right
thing and step into line with that agreement."

"Q. Step into line under threat of a ban? A. I did not say that.
There are all sorts of things that happen when they get beat in
court."

"Q. If they do not step into line? A. I believe the supermarket
proprietors are reasonable fellows. They have not done the right
thing up to date but there is no reason why they will not when
they get defeated here in the court."

"Q. If your prediction turns out to be correct and they do
continue to trade as they have before, the ban will go on will it
not? A. That will be up to the members of the union, will it not?"

"Q. You do not expect any change from their previously
expressed attitude, do you? A. Not at this stage. It is
overwhelming
really, a unanimous decision." (at p111)

40. It is clear that the ban and its implementation proceeded with the full support and encouragement of the union and it was only after the ban had been in implementation from 23rd October to the middle of November last that the union took any action to prevent further commission of the wrongful conduct. It did so then only to comply with the requirements and orders of the court. It is my opinion that unless restrained by the court it is likely to approve the revival and implementation of the ban.

AIDING AND ABETTING BY MR. SWALLOW. (at p112)

41. I am satisfied that Mr. Swallow has personally aided and abetted the participants in the imposition and implementation of the ban. He personally took action designed to ensure that the implementation of the ban would be effective in depriving the plaintiff of all meat supplies. It was he who, having ascertained that the plaintiff would not comply with the union demand that it cease to trade in meat on Saturdays, searched for and found that the plaintiff's only wholesale supplier was Holman and intimated to it that there would be a ban on further supplies to the plaintiff. It was Mr. Swallow who called the meeting of the relevant employees and put before the meeting the "case" referred to by Mr. King. That his conduct was designed to encourage and indeed to procure the imposition of the ban and its implementation is quite clear. Indeed, Mr. Swallow regarded it as no more than his duty to do so. That he so regarded it is not relevant to the question whether or not he aided and abetted the participants in the commission of the relevant conduct: see the remarks of Viscount Simon L.C. in Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch (1942) AC, at p 441 , and Industrial Enterprises Ltd. v. Federated Storemen and Packers' Union of Australia Unreported (Federal Court of Australia, Lockhart J., 5th January, 1979). . In view of the adjournment of these proceedings so far as they relate to penalty or damages which is part of the order to be made this day, it is unnecessary to deal with the contention (v) raised under s. 85(6) at this stage.

SUBSTANTIAL LOSS CAUSED. (at p112)

42. I am satisfied that the relevant conduct did cause substantial loss and damage to the business of the plaintiff and that it would have continued to cause such loss and damage so long as the participants engaged therein. The circumstances were such that the plaintiff was unable to obtain adequate alternative supplies and that its capacity to obtain such supplies would become less as time went on. The effect on the business of the plaintiff of the relevant conduct as revealed by the evidence was in substance that there was a reduction in sales of meat for each week during the continuance of the relevant conduct, of approximately one-third. From average normal sales in the vicinity of a gross amount of about $4,400 there was a gross profit of about $1,400. Allowing for expenses of sales of $954 made up of wages, plant, wrapping, power, insurance and holiday and long service leave entitlements the net profit was $446. A reduction of one-third in sales resulted in a reduction of one-third of the gross profit. The weekly gross profit was reduced to about $934. But for the most part, it appears, overheads (expenses of sales) remained constant and the loss of sales reduced the net profit by considerably more than the loss of gross profit on those sales. Allowing for savings on such items as wrappings and packing on the lost sales the overhead expenses in respect of the reduced sales would be reduced from $954 to $892 leaving a net profit of $42. The result is that the loss of sales caused a loss of a net profit of about $400 per week. The evidence of this loss was not given in precise form and was the subject of much investigation but I do not doubt that the loss during the period of the relevant conduct was of the order of $400 per week. Such a loss was, I consider, a substantial one.

CONCLUSION. (at p113)

43. Accordingly I am satisfied that it is established that the union is deemed to have acted in concert with the participants in engaging in conduct which prevented the supply by Holman to the plaintiff corporation of goods and services for the purpose of causing substantial loss and damage to the business of the plaintiff and which would have caused and was likely to have the effect of causing such loss and damage to the plaintiff, that the dominant purpose for which such conduct was engaged in was to cause the plaintiff in the operation of its supermarket to cease to sell packaged meat on Saturday mornings and I am satisfied that such purpose was not substantially related to the remuneration, conditions of employment, hours of work of the participants or of any other person employed by Holman, the employer of the participants. (at p113)

44. I am accordingly satisfied that the participants committed a contravention of the provisions of s. 45D(1) in refusing to handle and refraining from loading, delivering or otherwise handling meat ordered by the plaintiff from Holman for sale in its supermarket. I am also satisfied that the defendant Mr. Swallow aided and abetted, counselled and procured the contravention committed by the participants. (at p113)

45. I am not satisfied that the conduct of the participants did or was likely to have the effect of causing a substantial lessening of competition in any market in which the plaintiff supplies or acquires goods and services. (at p113)

46. In the result it is ordered that: 1. the defendants and each of them and in the case of the second-named defendant by its members, officers or servants be perpetually restrained from: (a) doing or continuing or being a party to the doing or continuing of any act in concert with any other person constituting the engaging in conduct for the purpose of hindering or preventing the supply by S.P. Holman & Sons Pty. Ltd. to the plaintiff Wribass Pty. Ltd. or the imposition and implementation of any ban upon the loading, delivery or other handling of meat or meat products ordered or required by the plaintiff from S.P. Holman & Sons Pty. Ltd. or intended for delivery to the plaintiff and from aiding, abetting, counselling, procuring or inducing any person to act or acting in concert with any other person or persons in the engaging in any such conduct or the continuing or implementing of any such ban or attempting so to aid, abet, counsel, procure and induce; (b) aiding, abetting, counselling, procuring, being concerned in or inducing or attempting to induce any person whatever to engage in conduct in concert with other persons so as to hinder or prevent the plaintiff from obtaining meat products for the purpose of its business at 230 Mount Street, Burnie, from S.P. Holman & Sons Pty. Ltd.; 2. these proceedings so far as they relate to the questions of damage or penalty be adjourned to a date to be fixed on the application of any party; 3. the defendants pay to the plaintiff its costs to be taxed by the district registrar of and incidental to these proceedings and the costs in the interlocutory proceedings herein which have been reserved; 4. there be liberty to any party to apply. (at p114)

ORDER

Orders accordingly.