Campbelltown Catholic Club Ltd v Federated Liquor and Allied Industries Employees' Union of Australia [1980] FCA 14; (1980) 40 FLR 288 (4 March 1980)

FEDERAL COURT OF AUSTRALIA

CAMPBELLTOWN CATHOLIC CLUB LTD. v. FEDERATED LIQUOR AND ALLIED INDUSTRIES
EMPLOYEES' UNION OF AUSTRALIA [1980] FCA 14; (1980) 40 FLR 288
Trade Practices

COURT

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

CATCHWORDS

Trade Practices - Secondary boycott - Application for interlocutory injunction - Injunction against organization of employees and against members of that organization - Trade Practices Act 1974 (Cth.), s. 45D (1), (5). Employees of the applicant corporation had failed to participate in a strike called by the respondent union. The union subsequently decided to ban the delivery of beer to clubs whose employees had worked during the strike. Thereafter beer destined for the applicant was not loaded, because the driver was told by two union delegates that if he did, he would get no more loads from the brewery. In consequence the applicant incurred additional expense in obtaining supplies from other sources.

The applicant sought an interlocutory injunction in proceedings pursuant to s. 45D of the Trade Practices Act 1974 (Cth.).

Held: (1) The union delegates had, with the purpose of causing loss or damage, in concert with each other engaged in conduct that prevented the supply of goods by a third person to a corporation; and an injunction would be granted against them.

(2) Upon the uncontradicted evidence it could be inferred that the union delegates were members of the respondent union. They were "participants" within the meaning of s. 45D (5) of the Act, so that the union was deemed to have engaged in the relevant conduct in concert with the delegates; and an injunction would also be granted against the union.

HEARING

Sydney, 1980, February 28-29; March 4. 4:3:1980
APPLICATION FOR INTERLOCUTORY INJUNCTIONS.

The facts appear in the judgment.

T. E. F. Hughes Q.C., J. Trew and J. Hilton, for the applicant.

The respondents did not appear.

Cur. adv. vult.

Solicitors for the applicant: Piggott Stinson & Co.
R. R. BOADEN

DECISION

March 4.

SHEPPARD J. delivered the following written judgment.
This is an application for an interlocutory injunction. It is made in

proceedings brought pursuant to s. 45D of the Trade Practices Act 1974 (Cth.) by the Campbelltown Catholic Club Ltd. The respondents to the proceedings are the Federated Liquor and Allied Industries Employees' Union of Australia; the Federated Liquor and Allied Industries Employees' Union of Australia, New South Wales branch; Charles Crean, William Farrell, Gladys Rosemarie Ann Endcott, Kenneth Reginald Jeffery, Maxwell Callaghan and Peter Abdallah. (at p289)

2. Miss Endcott and Mr. Jeffery are, apparently, trustees of union funds, whether of the federal organization or the New South Wales branch, I am not sure. Messrs. Crean and Farrell are employed at the Kent Brewery conducted by Tooth & Co. Ltd. and the remaining respondents are employees of Tooheys Ltd. Messrs. Crean and Farrell are also, so the evidence discloses, delegates of the union - using that expression neutrally and not distinguishing between the federal organization and the New South Wales branch. (at p289)

3. None of the respondents has appeared and the application has proceeded ex parte. Because of some comments I have seen in the press, I should perhaps make it clear that there was no obligation on any of the respondents to appear. Notice of the proceedings was given the respondents to enable them to appear if they wished. They, like defendants in any other civil proceeding, whether brought in this or in other courts, may stay away if they choose. That is their right. Some might say that was an unwise course for any defendant to take, but that is not a matter upon which I express an opinion. All I say is that by reason of the absence of the respondents, no evidence has been led on their behalf and no submissions made in support of their cases. I have only the applicant's evidence and submissions. (at p289)

4. I should make it clear that whilst the respondents to this application are entitled to stay away if they wish, there are other types of process issued by courts - I instance subpoenas - where, if process is properly served, a person is obliged to attend. This is not a proceeding of that kind. (at p289)

5. The evidence, which I accept, is that there was recently a strike by members, either of the federal organization or its State branch, who were employed in various clubs in this State. The applicant club had employees who were members, apparently, of either the federal organization or the State branch. They did not go on strike, or at least some of them did not, but worked during the period of the strike. (at p289)

6. It was decided either by the federal organization or by the New South Wales branch to attempt to ban deliveries of beer to clubs, including the applicant here, whose employees had worked during the strike. Beer earmarked for delivery to the club by Tooth & Co. Ltd. was not loaded, not because the driver engaged by the brewery to load it refused it, but because he was told on each occasion either by Mr. Crean or Mr. Farrell that if he did, he would not get another load from the brewery. (at p289)

7. In drawing those conclusions, I have not entered upon a discussion of the evidence because I do not consider it necessary to do so. There being no appearance for the respondents, there was no evidence to the contrary. I have, to a degree, relied on inferences I have drawn from the evidence. Such inferences were clearly open. (at p290)

8. Evidence was given by Mr. Imrie, who is the manager of the applicant, that the consequences of the ban have been, up to date, that the club has been forced to obtain supplies of beer from other sources, putting the club to greater expense. That expense has arisen because of extra wages involved and the hire of vehicles to transport the liquor. These extra expenses have been incurred over the last fortnight and to the date Mr. Imrie gave his evidence which was 28th February last, they amounted to $600. He said that if the ban continued there was no way of alleviating the expenses so that they would continue to mount up. He also expressed concern that alternative sources of supply might cease to be available to the club in what he termed the very near future. He defined "the very near future" as the early stages of this week. If that occurred the club's business would be very seriously affected. (at p290)

9. Section 45D (1) of the Trade Practices Act so far as it is relevant provides that, subject to the 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 where the conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the corporation. (at p290)

10. In my opinion, the evidence which I have accepted shows that Mr. Crean and Mr. Farrell are themselves in breach of the terms of s. 45D (1) of the Act. Their conduct, which has been engaged in in concert with one another, has prevented the supply of goods to a corporation, namely, the applicant club. The inference is open that the conduct was engaged in for the purpose of causing substantial loss or damage to the club. I am satisfied I should draw that inference. The loss so far suffered by the club has not been substantial comparatively speaking. By this time, upon the basis of Mr. Imrie's evidence, it is probably of the order of $1,000, but the loss is continuing and it is not unlikely, again on the basis of his evidence, that the club's present sources of supply will be cut altogether with the result that the club in the immediate future will face very severe loss. (at p290)

11. This is an interlocutory application. It is not a final hearing. I am satisfied that it is appropriate to grant interlocutory relief. If the evidence were left as it is, it is my view that the applicant would probably succeed in obtaining final relief. The balance of convenience is such that an injunction should be granted. That deals with the position so far as the two personal respondents against whom relief is sought, Messrs. Crean and Farrell, are concerned. (at p291)

12. As earlier mentioned, relief is also sought against the federal organization. Reliance is placed upon s. 45D (5) and (6) for this purpose. The first of those subsections provides: "If two or more persons (in this sub-section referred to as the '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." Subsection (6), so far as it is relevant, provides that where an organization of employees engages, or is deemed by sub-s. (5) to engage in conduct in concert with members or officers of the organization in contravention of sub-s. (1), any loss or damage sustained by a person as a result of the conduct shall be deemed to have been caused by the conduct of the organization. (at p291)

13. Messrs. Crean and Farrell are plainly participants for the purposes of s. 45D (5). There is a question as to whether they are members of the federal organization. As I have mentioned, there is a New South Wales branch of the union, using that expression neutrally. Such a branch is registered under the provisions of the Trade Union Act, 1881 (N.S.W.). It is possible that that organization is separate and distinct from the federal organization - compare Moore v. Doyle (1969) 15 FLR 59 . On the other hand, the branch may simply be part of the federal organization itself. (at p291)

14. In Williams v. Hursey [1959] HCA 51; (1959) 103 CLR 30 Fullagar J. said: "It (the branch) has no separate identity - no existence apart from the registered organization, of which it is an integral and inseverable part. Its members are merely a section of the total membership of the federation - locally organized for the sake of convenience, but in no respect independent of the federation, and in all respects subject to the control of the federation" (1959) 103 CLR, at pp 54-55 . (at p291)

15. In the way that the evidence has been led, it is open to me to infer that Messrs. Crean and Farrell were members of the federal organization, even though they may also have been members of the New South Wales branch, assuming, without deciding, that it is an entity, separate from the New South Wales branch. I have decided that I should draw that inference, and I do so. (at p292)

16. The provisions of sub-ss. (5) and (6) of s. 45D are such as to deem the conduct of Messrs. Crean and Farrell the conduct of the federal organization. It should also therefore be the subject of an injunction. Accordingly I propose in a moment to make orders to give effect to the decision at which I have arrived. (at p292)

17. Before I do so, I wish to deal with two matters. Although the order I am about to make will oblige the federal organization and Messrs. Crean and Farrell not to prevent the supply of liquor to the applicant club, it will be a matter for the club to decide whether it proposes to take steps to seek the enforcement of the order, if it be disobeyed. The order is no different in effect from countless others that are made each week in the civil courts in this country. It will not be enforced by the court of its own motion. It will only be if and when an application is made to it by the club, supported by evidence of disobedience, that the court will consider whether it should take steps to enforce its order. I repeat, there is nothing exceptional about that circumstance; it is the same in every civil case, whether heard in this Court or in the Supreme Courts of the States and Territories. (at p292)

18. The other matter to which I wish to make reference is that these proceedings are civil proceedings. They are not penal or criminal in their nature. It is not sought to recover any fine. What the applicant seeks to do is to prevent a situation arising where its business will be so badly affected that it will suffer serious and irreparable loss, and to recover losses that have already been incurred. (at p292)

ORDER

Orders accordingly.