Barneys Blu-Crete Pty Ltd v Australian Workers' Union [1979] FCA 89; (1979) 43 FLR 463 (17 December 1979)

FEDERAL COURT OF AUSTRALIA

BARNEYS BLU-CRETE PTY. LTD. v. AUSTRALIAN WORKERS' UNION (1979) 43 FLR 463
Trade Practices

COURT

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

CATCHWORDS

Trade Practices - Injunction - Union black ban of supplies to corporation - Purpose of black ban - Discretion - Trade Practices Act 1974 (Cth), ss. 45 (2), 45D, 80 (2), 80A, 87. The applicant was a corporation engaged in manufacturing and distributing pre-mixed concrete in the Geelong area. Raw materials were transported to the applicant's premises by members of the Australian Workers' Union (the "A.W.U.") and the Transport Workers' Union of Australia (the "T.W.U."). In March 1979 the Concrete Carters' Association, Geelong sub-branch, resolved to oppose the introduction of further concrete cartage trucks into the Geelong area, in order to stabilize the supply of such vehicles in the area.

In August 1979 the Concrete Carters' Association, Geelong sub-branch, held a meeting of owner drivers and company drivers and resolved that the applicant should be restricted to the use of two vehicles. The applicant refused to accept the limitations so imposed, and began using a total of four vehicles.

In October 1979, representatives of the A.W.U. and the T.W.U. agreed to place a black ban on the supply of raw material to the applicant.

Evidence was given by one Heussi, an official of the T.W.U., that the purpose of the black ban was to force the applicant to negotiate, with a view to the proper implementation of the Concrete Carters' Association stabilization scheme.

The applicant sought and obtained an interim injunction, and then sought an interlocutory injunction, to prevent the black ban.

On the application for interlocutory injunction the respondents argued that the applicant had failed to make out a prima facie case that the conduct was engaged in for the purpose of causing substantial loss and damage, that there was no evidence of such loss or damage, that the balance of convenience required that the Concrete Carters' Association stabilization scheme be implemented, which result would be achieved by the black ban, and that as a matter of discretion the injunction should not be granted because the applicant had not disclosed in its application for an interim injunction, that it was a "front" for another larger group of concrete batchers.

Held, that a prima facie case had been made out that the immediate purpose of the black ban was the infliction of substantial loss or damage on the applicant.

As the purpose of the black ban was to bring the applicant's business to a standstill, that was sufficient evidence of substantial loss or damage.

There was no evidence that the applicant was acting other than on its own behalf. In any event that fact was not material to the application. Further, any suppression of relevant facts would only be relevant to an application to dissolve the interim injunction so obtained, and did not bear on the application for an interlocutory injunction.

HEARING

Melbourne, 1979, December 6-7, 10-11, 17. 17:12:1979
APPLICATION FOR INTERLOCUTORY INJUNCTION.

R. Merkel and N.J. Young, for the applicant.

J. Howden, for the first and sixth-named respondents.

P.R.A. Gray, for the second, third, fourth and fifth-named respondents.

Cur. adv. vult.

Solicitors for the applicant: Barbour & Arnold.

Solicitors for the first and sixth-named respondents: Arnold, Thomas & Co.

Solicitors for the second, third, fourth and fifth-named respondents: Ryan,

Carlisle, Needham, Thomas.

J. W. K. BURNSIDE

DECISION

December 17.

The following judgment was delivered.
NORTHROP J. The court has before it an application by Barneys Blu-Crete Pty.

Ltd. ("the applicant") for interlocutory injunctions under s. 80 (2) of the Trade Practices Act 1974 (Cth), as amended, ("the Act") to restrain conduct of the respondents alleged to be in contravention of s. 45D of the Act. The application, as amended during the course of the hearing, seeks the following orders: "A. An order that the respondents and each of them whether by their servants, agents or howsoever otherwise be restrained until the trial of the action herein or further order from - (a) Engaging in conduct in concert with each other or with other persons one of the purposes of which is to cause loss or damage to the business of Barneys Blu-Crete Pty. Ltd. by hindering or preventing the supply of - (i) cement, sand, aggregate or screenings and any other goods to Barneys Blu-Crete Pty. Ltd. for use in its business of selling pre-mixed concrete; (ii) carriage or transportation services by drivers or transport workers to employees of companies, firms or organizations supplying the goods described in sub-par. (i) hereof to Barneys Blu-Crete Pty. Ltd. (b) Engaging in conduct in concert with each other or with other persons which is calculated to cause loss or damage to the business of Barneys Blu-Crete Pty. Ltd., by hindering or preventing the supply of the said goods and services as aforesaid. (c) Engaging in conduct in concert with each other or with other persons for the purpose of hindering or preventing the supply of the said goods or services in contravention of the provisions of s. 45D (1) (a) or s. 45D (1) (b) of the Trade Practices Act 1974. (d) Engaging in conduct in concert with each other or with other persons one of the purposes of which is to enforce or implement the resolutions passed by meetings of owner drivers and employee drivers held on 27th March, 1979, and on 28th August, 1979, and described in pars. 11 and 17 of the affidavit of Ernest Heussi sworn on 30th November, 1979, and filed herein by hindering or preventing the supply of the said goods and services as aforesaid. (e) Aiding, abetting, counselling or procuring a person to engage in the conduct described in pars. (a) to (d) hereof. (f) Inducing or attempting to induce a person whether by threats, promises or otherwise to engage in the conduct described in pars. (a) to (d) hereof. (g) Being in any way either directly or indirectly knowingly concerned in or party to the conduct described in pars. (a) to (d) hereof. C. An order that the first-named respondent whether by its servants, agents or howsoever otherwise inform by such means and within such period as to the court may seem fit the undermentioned corporations and/or firms that - (a) they may if they wish supply cement, sand, aggregate or screenings and any other goods to the applicant for use in its business of selling pre-mixed concrete. (b) any black ban imposed upon the applicant has been lifted. Corporations and firms to be informed - (1) Blue Circle Southern Cement Ltd. of 390 St. Kilda Road, Melbourne. (2) Barro Group Pty. Ltd. of 46 Maroondah Highway, Ringwood. (3) Fyansford Quarries Pty. Ltd. of Little Paper Mill Road, Fyansford. (4) J.S. & D. Nash Bros. of Station Street, Corio. D. An order that the second-named respondent whether by its servants, agents or howsoever otherwise inform by such means and within such period as to the court may seem fit the undermentioned corporations and/or firms that - (a) they may if they wish provide carriage or transportation services for companies or firms supplying cement, sand, aggregate screenings or any other goods to the applicant. (b) any black ban imposed upon the applicant has been lifted. Particulars of corporations and/or firms to be informed - (1) Blue Circle Southern Cement Ltd. of 390 St. Kilda Road, Melbourne. (2) Barro Group Pty. Ltd. of 46 Maroondah Highway, Ringwood. (3) Fyansford Quarries Pty. Ltd. of Little Paper Mill Road, Fyansford. (4) J.S. & D. Nash Bros. of Station Street, Corio. E. An order that the first-named respondent and the second-named respondent by their duly authorized servant provide to the applicant within such period as to the court may seem fit a letter which may be distributed by the applicant to the corporations or firms described in pars. C. and D. above containing the information described in the said paragraphs." (at p465)

2. The principles to be applied when an interlocutory injunction is being sought have been stated clearly in a number of cases and need not be restated herein, but reference is made to World Series Cricket Pty. Ltd. v. Parish per Bowen C.J. (1977) 16 ALR 181, at p 185 and Beecham Group Ltd. v. Bristol Laboratories Pty. Ltd. [1968] HCA 1; (1968) 118 CLR 618, at pp 622-623 . See also Victorian Egg Marketing Board v. Parkwood Eggs Pty. Ltd. (1978) 33 FLR 294 ; Nauru Local Government Council v. Australian Shipping Officers Association (1978) 34 FLR 281 and Industrial Enterprises Pty. Ltd. v. Federated Storemen and Packers Union of Australia (1978) 2 ATPR 17,970 . (at p465)

3. This is an interlocutory proceeding and no final views have been formed. A number of affidavits have been filed and a number of the deponents of those affidavits have been cross-examined. For the purpose of the interlocutory application, it is necessary to make some findings of fact and to express some opinions of law but it is important to remember that the findings so made, and the opinions so expressed, are to be understood as being in the nature of interlocutory findings and opinions. At a final hearing the facts and the law will of necessity be investigated further by the parties. (at p466)

4. The applicant is a corporation within the meaning of that word as used in s. 45D of the Act. It was incorporated on 21st August, 1979, and is carrying on the business of producing ready-mixed concrete at a batching plant at Lara near Geelong in the State of Victoria. A concrete batching plant is where raw materials are mixed to form concrete which is then carted in agitators fixed to motor trucks to various building and construction sites where the concrete is taken from the agitators for use on those buildings or construction works. A general description of the operations carried on at concrete batching plants appears in R. v. Watson; Ex parte Australian Workers' Union [1972] HCA 72; (1972) 128 CLR 77, at pp 82-83 . In the present case one person only is employed in the applicant's batching plant operations, that person being Albano Menegazzo, commonly known as Barney. Mr. Menegazzo is the holder of one share in the applicant and is a director and the chairman of directors of the applicant. The only other shareholder is Ferdinando Mario Virgano who is the holder of three shares and is a director and the secretary of the applicant. Mr. Menegazzo is employed by the applicant as its manager and in fact manages the batching plant and is the only person so employed in the production of ready-mixed concrete at that plant. (at p466)

5. For a number of years prior to July 1979, Geelong Pre-Mixed Concrete Pty. Ltd. ("Geelong Pre-Mixed") conducted the concrete batching plant at Lara and another plant at Moolap, also in the Geelong area. Geelong Pre-Mixed was and is controlled by a group of companies hereinafter called the Barro group of companies. In July 1979, Geelong Pre-Mixed ceased operating the Lara plant and the applicant was incorporated for the purpose of purchasing the plant, equipment and stock at Lara and thereafter to conduct that plant. The money needed by the applicant to purchase the plant, equipment and stock, as well as to purchase other equipment and in particular four new motor trucks and four agitators to be fitted to those trucks as well as the costs necessary to commence business, was lent to the applicant by the Barro group of companies or by way of bank overdraft guaranteed by the Barro group of companies. Mr. Virgano is a son-in-law of the founder of the Barro group of companies and the instructions for the incorporation of the applicant and its financial structure were given to the solicitors for the Barro group of companies on behalf of that group of companies. That group conducts a number of operations including the production of ready-mixed concrete, the carting of ready-mixed concrete and the quarrying of aggregate, screenings and sand being raw materials needed for the production of ready-mixed concrete. The applicant is required to obtain its supplies of aggregate, screenings and sand from the quarries and sand pits operated by the Barro group of companies. (at p467)

6. The raw materials used in producing ready-mixed concrete include cement, sand, aggregate and screenings. The raw materials are carted to the applicant's batching plant on trucks driven by drivers employed by the suppliers of those materials or by general cartage contractors. The ready-mixed concrete is carted from the batching plant in agitators fixed to motor trucks. In the ready-mixed concrete industry some producers cart the ready-mixed concrete from batching plants by using motor vehicles that are owned by the drivers of those trucks while in other cases the drivers are employed by the producer driving a truck owned by the producer. The first group of drivers are referred to as owner drivers and the second group of drivers are referred to as company drivers. The first group are independent contractors and the majority of the owner drivers are members of the Concrete Carters' Association, an unincorporated association. The nature of that association and the manner in which owner drivers conduct their business is described in Re Application by Concrete Carters' Association (Victoria) (1977) 31 FLR 193 being the report of the decision by the Trade Practices Tribunal granting an authorization under the Act to the members of that association. The authorization granted and the standard type of contract entered into between a producer of ready-mixed concrete and an owner driver are both set out in the report (1977) 31 FLR, at pp 255-256, 247-255 . A similar type of contract is in use in the Geelong area. (at p467)

7. The applicant decided to use its own trucks for the purpose of carrying ready-mixed concrete to its customers and to that end purchased four new trucks to which it fitted used agitators acquired from the Barro group of companies. The applicant thereafter employed four company drivers to drive those trucks. (at p467)

8. Each of the Australian Workers' Union ("the A.W.U.") and the Transport Workers' Union of Australia ("the T.W.U.") is an organization under the Conciliation and Arbitration Act 1904 (Cth), as amended. Ernest Heussi and William Noonan are members of the T.W.U., Mr. Heussi being State organizer of the Victorian branch of the T.W.U. for the Geelong and Western District area. He is the secretary of the Geelong and Western District sub-branch of the Victorian branch of the Transport Workers' Union (the sub-branch). Owner drivers are members of the T.W.U. and Gregory David, who is the president of the Concrete Carters' Association, is a member of the T.W.U. Drivers employed by batching plant operators, including the drivers employed by the applicant, are members of the T.W.U. Ian Cutler is a member of the A.W.U. and at the relevant time was the acting State secretary of that organization. (at p468)

9. The T.W.U. and the Concrete Carters' Association believe that there are too many trucks available for concrete carting in the Geelong area and that this over-supply of trucks leads to a reduction in the amount of money an owner driver is able to earn in carting concrete and uncertainty in the continuity of employment of company drivers. Normally owner drivers must earn a certain amount each week in order to meet their financial liability with respect to their motor trucks. In the months preceding March 1979, a number of owner drivers had been forced out of business because of lack of work. Normally, an owner driver contracts to cart concrete for one producer only and the contract makes provision for termination when a producer changes his method of cartage, see cl. 27 of the agreement (1977) 31 FLR, at p 251 . A similar clause appears in the standard contract applying in the Geelong area. Another practice which from time to time had operated in the Geelong area was that if one producer needed extra carting done for which he had no truck, he could borrow a truck and driver from another producer. (at p468)

10. On 27th March, 1979, the sub-branch held a meeting of owner drivers and company drivers engaged in carting concrete in the Geelong area. Mr. Heussi chaired the meeting. The meeting passed the following resolutions: "That the companies interchange trucks freely. That there are sufficient trucks in the Geelong area at this time and that we oppose any further trucks being introduced." Thereafter Mr. Heussi visited the pre-mixed concrete producers in the Geelong area; put the resolutions to them and received their agreement in principle to their implementation. The arrangement to give effect to the resolutions is referred to as the stabilization agreement, and is designed to distribute the available work among existing trucks to ensure, as far as possible, adequate remuneration to owner drivers and continuity of employment of company drivers. From time to time glosses appear to have been added to the stabilization agreement, but it is not necessary to give details of these glosses. (at p468)

11. In March 1979 Geelong Pre-Mixed had the use of nine motor trucks, two of which were normally operated at the Lara plant and seven of which normally operated at the Moolap plant, but there was an interchange between the two plants. The then manager agreed to implement the stabilization agreement. When Geelong Pre-Mixed closed the Lara plant, the two vehicles used in connexion therewith were withdrawn from the concrete industry and converted to other uses. (at p468)

12. When the applicant commenced to produce concrete at the Lara plant it initially used one truck but shortly thereafter began using a second truck. The sub-branch called a meeting of owner drivers and company drivers to be held on 28th August, 1979. Mr. Heussi chaired the meeting at which the following resolution was passed: "That Barneys Blu-Crete Pty. Ltd. be restricted to two vehicles at present, and that any extra trucks that may be required to operate the plant be obtained on a daily basis from within the industry on the borrow and loan arrangement, which all Geelong based companies abide by." Thereafter a number of meetings took place between Messrs. Menegazzo, Heussi, Noonon and David as well as other members of the T.W.U. The stand taken by the T.W.U. was explained to Mr. Menegazzo, but he was determined to employ as many company drivers and use as many trucks as he considered to be in the best interests of the applicant. In early September 1979 the third and fourth trucks commenced to cart concrete produced at the Lara plant. Thereafter various stoppages of work occurred by owner drivers and company drivers in the Geelong area and subsequently these extended to the Melbourne area. As a result, concrete producers were unable to operate their batching plants and a number of their other employees, being members of the A.W.U. were stood down. In addition, other A.W.U. members were stood down because of lack of work in other areas. (at p469)

13. On 10th October, 1979, a meeting took place between Messrs. Heussi, Noonan, Cutler and Jim Davis, the State secretary of the T.W.U. and Ralph Naylor an organizer of the A.W.U., at which agreement was reached that the T.W.U. and the A.W.U. would place a black ban on the supply of raw materials to the applicant at its Lara plant. The black ban was to be effected by the members of the T.W.U. and the A.W.U. refusing to load and cart cement, sand, aggregate or screenings for delivery to the Lara plant. On 11th October, 1979, a meeting of owner drivers and company drivers was held at Melbourne. A summary of what occurred at that meeting is set out in the affidavit sworn by Mr. Menegazzo and is as follows: "52 (a) A further meeting of the same people was convened and held at the offices of the Transport Workers' Union in Melbourne on 11th October, 1979, and at this meeting the applicant company was represented by the said Leonard Allison and Robert Musgrave. (b) Mr. Noonan proposed that all drivers both in Melbourne and Geelong return to work on Friday 12th October, 1979, and he recommended that this be done and the resolution was passed unanimously. (c) Mr. Noonan then informed the meeting that the Transport Workers' Union had obtained the support from the Australian Workers' Union and that the Australian Workers' Union would assist in this matter in relation to the stoppage by the Geelong drivers as a consequence of the additional trucks placed by Barneys Blu-Crete and that the Australian Workers' Union would place a black ban on the supply of all materials to Barneys Blu-Crete. Mr. Noonan stated that Barneys would have its supply of materials cut forthwith and that when it ran out of materials it would be forced to meet with the union." (at p470)

14. In his affidavit Mr. Heussi said: "28. On 11th October, 1979, a further meeting was held at the union offices at Melbourne and the description of that meeting in par. 52 of Mr. Menegazzo's first affidavit is substantially correct, save for sub-par. (d). In the same affidavit Mr. Heussi said: "29. As deposed above, the only purpose of the action which has been taken by the Transport Workers' Union of Australia (Victorian branch) and the Australian Workers' Union is to stabilize the number of trucks working in the concrete cartage industry in the Geelong area, and thereby to prevent a situation arising whereby an over-supply of trucks will prejudically affect both owner drivers and employee drivers. An over-supply of trucks for the amount of work available will result in not only all owner drivers being unable to keep operating but will mean that employee drivers have little or no security of employment. That is, the demand for employee drivers will fluctuate from plant to plant according to the amount of work which a plant may have on hand from time to time." (at p470)

15. I set out extracts from the cross-examination of Mr. Heussi:
"Q. After the 12th, that black ban was effectively imposed by members of the A.W.U. and members of the T.W.U. being informed of the imposition of the black ban? A. More or less, yes.
"Q. Is it fair to say that the reason behind the imposition of the black ban was to bring direct pressure to bear on Barneys to come and sit down and thrash this out with you? A. That is correct.
"Q. At the time this was imposed, you were aware that the effect of the black ban would be to cease all supply of goods and services to Barneys? A. That was the idea of the black ban. We did not known whether it would be effective or not.
"Q. You were aware that that would affect Barneys in a way at would prevent it from carrying on its business? A. Yes.
"Q. Was any thought given as to how long the black ban was to be imposed? A. No.
"Q. Was it in effect an indefinite and continuing black ban? A. Until such time as we could get somebody around the table and discuss the matter, yes.
"Q. So that if Mr. Menegazzo refused to get around the table and discuss the matter and his company went out of business, so be it? A. That would have been his choice, I should imagine.
"Q. I take it that your attitude at the time this was imposed was that either he agrees to come to the negotiating table with you or if he does not, it is at his risk that he goes out of business? A. That was the attitude of the membership taken at the meetings, yes.
"Q. As far as you are able to gauge from the meeting you have described on 10th October with the two representatives of the Australian Workers' Union, it was their attitude too? A. I would imagine so." (at p471)

16. The black ban has been in operation since 12th October, 1979, and is still in operation. As a result the applicant is unable to receive any supplies of cement, sand, aggregate or screenings and is unable to produce any concrete. It is still employing its manager and its four truck drivers. (at p471)

17. In support of the application for the interlocutory injunctions, the applicant relies upon the following parts of s. 45D of the Act.
"45D. (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), . . . 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
(b) a substantial lessening of competition in any market in which the corporation . . . supplies or acquires goods or services.
(2) Paragraph 4F (b) does not apply in relation to sub-section (1) or (1A) 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.
(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 . . . engage in conduct in concert with one another . . . 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 p471)

18. Reference should be made to s. 45D (3) and (6): Counsel for the respondents made no submissions that s. 45D (3) applied to the facts of the present case. (at p471)

19. In order to consider the application it is convenient to deal with the various submissions under four separate heads namely: (1) prima facie case; (2) balance of convenience; (3) discretionary matters; (4) form of order.

1. PRIMA FACIE CASE (at p471)

20. This phrase is used in the sense described in the authorities relating to the granting of interlocutory injunctions. The substantive issue raised was whether the conduct, being the implementation of the black ban by the respondents acting in concert, kindered or prevented the supply of goods or services to the applicant and was engaged in for the purpose and had or was likely to have the effect of causing substantial loss or damage to the business of the applicant or a substantial lessening of competition in the market in which the applicant supplies or acquires goods or services. It was not really disputed, and from the evidence I draw the inference, that the black ban constitutes conduct engaged in by the respondents and each of them in concert and that that conduct hinders or prevents the supply of goods or services to the applicant. Counsel for the respondents contended that the applicant had failed to establish that that conduct was engaged in for the purpose of causing substantial loss or damage to the business of the applicant. They relied on what was said in the Nauru Local Government Council case (1978) 34 FLR 281 and what was said by Lord Cave in Sorrell v. Smith (1925) AC 700, at p 715 . The facts of those cases were very different from the facts of the present case. In each of those cases, the plaintiff had initiated a course of conduct which resulted in a series of events by which the defendants sought to protect their position and interests. In the present case, the T.W.U. is attempting to implement a policy decision, the stabilization agreement, of doubtful legal validity. In implementing that policy the T.W.U. states that its only purpose in imposing black bans is to bring the applicant to the conference table to negotiate the implementation of the stabilization agreement. The conduct engaged in is designed to bring direct pressure to bear on the applicant but this can only be a euphemism for causing damage to the applicant. The problem of distinguishing purposes is graphically illustrated by Evatt J. in McKernan v. Fraser [1931] HCA 54; (1931) 46 CLR 343 : "Sir Godfrey Lushington said, in special reference to combined action against employers or non-unionists on the part of unionists, that to ask the question whether they acted to defend their own trade interests or to injure their economic adversary for the time being, is equivalent to asking of a soldier who shoots to kill in battle, whether he does so for the purpose of injuring his enemy or of defending his country. The analogy is sound, because combined strike action is usually undertaken for the purpose, both of causing harm to the employers and for the improvement or maintenance of the standards of the unionists. As Lord Sumner said in Sorrell v. Smith: 'All well planned and successful commercial action of this kind must prejudicially affect the rival and is intended to do so' (1925) AC, at p 734 . Such is the commencing and not the finishing point of the relevant inquiry" (1931) 46 CLR, at p 403 . In that case the High Court held that in order to make out a case the plaintiff had to establish that the combination or acts done in furtherance of the combination was or had to be done with a desire to harm the plaintiff. Evatt J. made the statement set out in the context that, of necessity, acts done to support an industrial objective must cause harm but that of itself does not mean that those acts were done with a desire to harm. In the present case, intention to cause loss or damage is irrelevant. What is relevant is the purpose for which the acts are done. The long-term purpose may well be the implementation of an industrial objective but the immediate purpose is to bring direct pressure to bear on the applicant by depriving him of the materials needed to conduct its business. The direct pressure is to cause loss or damage to the applicant. From the facts of this case, I draw the inference that the respondents and each of them have engaged in the conduct described for the purpose of causing loss or damage to the business of the applicant. In this respect, the facts of this case are analogous in Utah Development Co. v. Seamen's Union of Australia (1977) 17 ALR 9 ; Ascot Cartage Contractors Pty. Ltd. v. Transport Workers' Union of Australia (1978) 32 FLR 148 and Industrial Enterprises Pty. Ltd. v. Federated Storemen and Packers Union of Australia (1978) 2 ATPR 17,970 . The inferences drawn are not inconsistent with the views expressed in Thomson Publications (Australia) Pty. Ltd. v. Trade Practices Commission per Northrop J. and per Deane and Fisher JJ. (1979) 40 FLR 257 . (at p473)

21. Counsel for the respondents contended further that the applicant had failed to establish a prima facie case in the requisite sense that the conduct of the respondents was engaged in for the purpose and had or was likely to have the effect of causing substantial loss or damage to the business of the applicant. It is contended that in the absence of evidence that over the period the black ban was being implemented the applicant had made less profit or had suffered a greater loss than that which it would have made or suffered if the black ban had not been implemented, the applicant had failed to prove substantial loss or damage. I do not accept that contention. The phrase "loss or damage" in s. 45D (1) (a) is not directed to the question of quantum or less profit or greater loss over a period of time. The phrase is directed to a factual situation where the purpose and effect or likely effect is the cause of substantial loss or damage to the business. Where the conduct engaged in prevents a corporation from obtaining the raw materials necessary to enable it to carry on its business, of necessity that conduct is or is likely to have the effect of causing loss or damage to that business. That is the position in the present case, and on the facts proved, the loss or damage is substantial. The effect of the conduct engaged in is to prevent the applicant from producing concrete. The very basis of its existence has disappeared. The applicant has made out a prima facie case on this aspect of the matter. (at p474)

22. Likewise, in my opinion, the applicant has made out a prima facie case under s. 45D (1) (b). The relevant market is that in which ready-mixed concrete is produced and delivered in the Geelong area. For present purposes, it is not necessary to define the outer geographic limits of that market. The stabilization agreement is designed to lessen competition within that market. The concept of competition is considered in Trade Practices Commission v. Ansett Transport Industries (Operations) Pty. Ltd. (1978) 32 FLR 305, at pp 325-326 . Although the evidence on this aspect of the matter is not very extensive, the stabilization agreement constitutes a substantial barrier to the entry of new batching plant operators into the market. It is not surprising that the existing batching plant operators support the agreement in principle. The stated purpose of the agreement is to restrict the entry of additional trucks into the market thereby attempting to restrict competition.

2. BALANCE OF CONVENIENCE (at p474)

23. Under this heading, counsel for the respondents contended that the court should consider the effect of the stabilization agreement on maintaining the livelihood of the owner drivers and company drivers in the Geelong area. It was contended further that there was nothing to prevent the applicant conducting his business within the terms of the stabilization agreement and that on the balance of convenience the application for interlocutory injunctions should be refused. (at p474)

24. I do not accept those contentions. One of the objects of the Act is to proscribe conduct which constitutes anti-competitive behaviour. I have said already that the stabilization agreement is of doubtful legal validity. During the course of submissions reference was made to s. 45 (2) (b) of the Act and to whether the stabilization agreement was a contract, arrangement or understanding of a kind proscribed by those provisions of the Act. If necessary, I would be prepared to find that the applicant has made out a prima facie case, in the requisite sense, that the agreement does contravene s. 45 (2) (b) of the Act, but I prefer to base my decision on the ground that the respondents, in seeking to rely upon the stabilization agreement, have failed to satisfy me that the agreement does not contravene s. 45 (2) (b) of the Act. There is no doubt that the applicant carries the burden of proof in the sense already described, but on this specific issue, the shifting onus lies on the respondents. In any event, the purpose of the interlocutory injunctions is to maintain the status quo of the parties pending the final determination of the application. In my opinion, the status quo to be maintained was that existing before the respondents imposed the black ban. That position should be maintained being one in which the applicant was engaged in producing ready-mixed concrete at its Lara plant. In any event the applicant, being a person entitled to the benefit of the provisions of the Act, should be permitted to carry on its business pending the final determination of the application. On the question of the balance of convenience, interlocutory injuctions should be granted under s. 80 (2) of the Act.

3. DISCRETIONARY MATTERS (at p475)

25. Counsel for the respondents contended that for a number of discretionary reasons the injunctions should not be granted. It was contended that the applicant was a front for the Barro group of companies which had set it up and controlled it for the purpose of breaking the stabilization agreement. On the evidence I do not draw the inference upon which those contentions are based. But even if established, those findings would not constitute a basis for refusing the interlocutory injunctions sought. The applicant is a corporation. It is a person within s. 80 of the Act. The Act has general application. The applicant is being prevented from carrying on its business. The applicant has made out a prima facie case in the requisite sense and on the balance of convenience the injunctions should issue. I reject the first of the contentions made. (at p475)

26. It was contended further that the applicant, when applying for the ex parte interim injunction granted on 12th November, 1979, had not made full disclosure of all relevant facts, the suppressed relevant facts being the financial provisions under which the applicant had commenced operations and the interest of the Barro group of companies in the applicant. The applicant relied upon Thomas A. Edison Ltd. v. Bullock [1912] HCA 72; (1912) 15 CLR 679 . In my opinion, those facts were and are not relevant to the question of whether the interim injunction should have been granted or not, but in any event, the principle relied upon applies to cases where an application is made to dissolve an interim injunction. The suppression of the relevant facts does not prevent a fresh application for an injunction being heard and determined in the light of all relevant facts, see per Isaacs J. (1912) 15 CLR, at p 683 . (at p475)

27. Finally, it was contended that the T.W.U. had given notice of the existence of an industrial dispute involving the applicant and the T.W.U. and that that dispute was presently before the Conciliation and Arbitration Commission and that accordingly the court should not grant the application but should allow the parties to have the matter dealt with by the commission. Counsel relied upon Harry M. Miller Attractions Pty. Ltd. v. Actors and Announcers Equity Association of Australia (1970) 1 NSWR 614 . I reject this contention for the reasons given by Lockhart J. in Industrial Enterprises Pty. Ltd. v. Federated Storemen and Packers Union of Australia (1978) 2 ATPR, at pp 17,996-17,997 .

4. FORM OF ORDER (at p476)

28. The interim injunctions granted on 12th November, 1979, and thereafter continued from time to time are expressed too widely and could restrain conduct which is not in contravention of the Act, cf. Thomson Publications (Australia) Pty. Ltd. v. Trade Practices Commission (1979) 40 FLR 257 . Accordingly, counsel for the applicant was granted leave to amend the form of the injunctions sought. A perusal of the cases in which interlocutory injunctions have been granted to restrain conduct proscribed by s. 45D of the Act indicates that no one general form of order has been made by the court. I am conscious of the warnings given by the court in World Series Cricket Pty. Ltd. v. Parish (1977) 16 ALR 181 and Victorian Egg Marketing Board v. Parkwood Eggs Pty. Ltd. (1978) 33 FLR 294 , I am conscious also of the difficulties in defining with precision the exact acts constituting the conduct to be restrained. It would be impossible to state in detail each act which is to be restrained. Accordingly, the court proposes to grant the injunctions set out in par. A. of the amended application with minor variations and as set out at the beginning of these reasons. (at p476)

29. Counsel for the applicant sought mandatory injunctions in the form set out in pars. C., D. and E. of the amended application. Counsel did not refer me to any case in which the Federal Court has awarded mandatory injunctions in proceedings under s. 80 (2) of the Act. It was contended that under s. 80, s. 80A and s. 87 of the Act and under the provisions of the Federal Court of Australia Act 1976 (Cth) the court has jurisdiction to grant interlocutory mandatory injunctions. This is an interlocutory proceeding and of necessity submissions on the question of jurisdiction have not been as full as one would expect to find on a final hearing. I am not prepared to make the orders sought in pars. C., D. and E. of the amended application. (at p476)

30. Accordingly the court makes the following orders: 1. That upon the applicant by its counsel undertaking to the court to pay to any party adversely affected by the interlocutory injunctions hereby granted such compensation (if any) as the court thinks just in such a manner as the court directs it is ordered that the respondents the Australian Workers' Union, the Transport Workers' Union of Australia, Gregory David, Ernest Heussi, William Noonan and Ian Cutler and each of them whether by their members, servants, agents or howsoever otherwise be restrained until the trial of the application herein of further order from: (a) Engaging in conduct in concert with each other or with other persons one of the purposes of which is to cause loss or damage to the business of Barneys Blu-Crete Pty. Ltd. by hindering or preventing the supply of - (i) cement, sand, aggregate or screenings or any other goods to Barneys Blu-Crete Pty. Ltd. for use in its business of selling pre-mixed concrete; (ii) carriage or transportation services by drivers or transport workers to employees of companies, firms or organizations supplying the goods described in sub-par. (i) hereof to Barneys Blu-Crete Pty. Ltd. (b) Engaging in conduct in concert with each other or with other persons which is calculated to cause loss or damage to the business of Barneys Blu-Crete Pty. Ltd., by hindering or preventing the supply of the said goods and services as aforesaid. (c) Engaging in conduct in concert with each other or with other persons for the purpose of hindering or preventing the supply of the said goods or services in contravention of the provisions of s. 45D (1) (a) or s. 45D (1) (b) of the Trade Practices Act 1974. (d) Engaging in conduct in concert with each other or with other persons one of the purposes of which is to enforce or implement the resolutions passed by meetings of owner drivers and employee drivers held on 27th March, 1979, and on 28th August, 1979, and described in pars. 11 and 17 of the affidavit of Ernest Heussi sworn on 30th November, 1979, and filed herein by hindering or preventing the supply of the said goods and services as aforesaid. (e) Aiding, abetting, counselling or procuring a person to engage in the conduct described in pars. (a) to (d) hereof. (f) Inducing or attempting to induce a person whether by threats, promises or otherwise to engage in the conduct described in pars. (a) to (d) hereof. (g) Being in any way either directly or indirectly knowingly concerned in or party to the conduct described in pars. (a) to (d) hereof. 2. That upon this order coming into operation the interim injunction granted on 11th December, 1979, be dissolved. 3. That the directions hearing herein be adjourned to a date to be fixed. 4. That all parties have liberty to apply to the court on two days' notice. 5. That the costs of all parties be reserved. (at p477)

ORDER

Orders accordingly.