Re Leon Laidely Pty Ltd v the Transport Workers Union of Australia; the Transport Workers Union of Australia, New South Wales Branch; John Barry Mclean; Peter Osborne; Raymond Hutchinson; Ronald Gannon; R Pritchard [1980] FCA 15; (1980) 42 FLR 352 (4 March 1980)

FEDERAL COURT OF AUSTRALIA

Re: LEON LAIDELY PTY. LTD.
And: THE TRANSPORT WORKERS UNION OF AUSTRALIA; THE TRANSPORT WORKERS UNION OF
AUSTRALIA, NEW SOUTH WALES BRANCH; JOHN BARRY McLEAN; PETER OSBORNE; RAYMOND
HUTCHINSON; RONALD GANNON; R. PRITCHARD (1980) 42 FLR 352
No. G 17 of 1980
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Trade Practices - secondary boycotts - interlocutory injunction whether State union properly joined as a party - whether State union a person within the meaning of s. 45D - whether respondents acting in concert with each other - whether conduct hindered or prevented supply of bulk fuel to applicant - whether conduct engaged in for the purpose of causing substantial loss or damage to the business of the applicant - whether dominant purpose related to conditions of employment - whether conduct likely to have the effect of causing substantial loss or damage - meaning of "likely" - establishment of prima facie case - balance of convenience.

Trade Practices Act 1974 (Cth.) ss. 45D, 80

Trade Practices - Secondary boycott - Interlocutory injunction - Meaning of "person" within s. 45D - Whether respondents acting "in concert with one another" - Whether conduct engaged in for purpose of causing substantial loss or damage to business of applicant - Dominant purpose - Whether conduct likely to have effect of causing substantial loss or damage - "Likely" - Prima facie case - Balance of convenience - Trade Practices Act 1974 (Cth), ss. 45D, 80. The applicant had been a distributor of bulk fuel oils which it purchased from Amoco and distributed to its 400 or so customers since 1968. On 14th February, 1980, the applicant supplied fuel, as it had been doing for some time past, to a service station at Canley Vale which had formerly been a B.P. station, and which had been sold and was then operating under the Amoco banner. Members of the State branch of the first respondent (the State branch being the second respondent) considered this service station to be in the "metropolitan" area and one which should receive its supplies directly from Amoco.

On 15th February a stop work meeting was held at the premises of Amoco and after discussions Amoco was told by the fourth, fifth and sixth respondents, members of the State branch of the union that its members were on strike. On 16th February a meeting was arranged between all the parties to take place on 18th February. After discussions the members of the State branch of the union at Amoco resolved to go on strike until 17th April, 1980. Thereupon Amoco made its decisions that it would not supply the applicant; the State branch members of the union immediately resolved to return to work.

On 22nd February the applicant instituted proceedings claiming that the second respondent (the State branch) and the third, fourth, fifth and sixth respondents had contravened s. 45D of the Trade Practices Act 1974 ("the Act"). The applicant sought interlocutory injunctions under s. 80 of the Act to restrain the second, third, fourth, fifth, and sixth respondents from contravening s. 45D.

Section 45D of the Trade Practices Act 1974 provides, so far as relevant:

"(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 is related to the corporation supplies or acquires goods or services.
(2) . . . a person shall be deemed to engage in conduct for a purpose mentioned in (sub-s. (1)) 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; . . .
(5) 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 the 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 participants from engaging in that conduct."

Held: (1) A registered State trade union is a "person" within the meaning of ss. 45D and 80 of the Act.

Taff Vale Railway Company v. Amalgamated Society of Railway Servants, (1901) AC 426; Egan v. Barrier Branch of Amalgamated Miners' Association (1917), 17 SR (NSW) 243, referred to.

Bonsor v. Musicians' Union, (1956) AC 104, distinguished.

Williams v. Hursey [1959] HCA 51; (1959), 103 CLR 30; Moore v. Doyle (1969), 15 FLR 59, followed.
(2) On the evidence the third, fourth, fifth and sixth respondents in concert which each other engaged in the conduct in question, and the second respondent was deemed to have engaged in that conduct in concert with them by reason of s. 45D (5) of the Act.

Tillmanns Butcheries Pty. Ltd. v. Australasian Meat Industry Employees' Union (1979), 42 FLR 331, followed.
(3) Though the respondents had more than one purpose for their actions, on the evidence it was plain that one of their purposes was to cause loss or damage to Amoco.
(4) On the evidence that the strike of the members of the second respondent was to last at least until 17th April, 1980, the purpose of the respondents was to cause "substantial" loss or damage to Amoco.

Tillmanns Butcheries Pty. Ltd. v. Australasian Meat Industry Employees' Union (1979), 42 FLR 331, followed.
(5) The conduct of the respondents was such that it would have or would be likely to have the effect of causing substantial loss or damage, however one construed the word "likely" in this context.
(6) In determining whether conduct is engaged in for a "purpose" mentioned in s. 45D (1) one must ask, not whether it was appreciated that certain conduct might have a certain effect, but rather what were the real reasons or real purposes for the conduct in the minds of participants at the time.

Tillmanns Butcheries Pty. Ltd. v. Australasian Meat Industry Employees' Union (1979), 42 FLR 331, followed.

On the applicant having established a prima facie case and having satisfied the court as to the balance of convenience, interlocutory injunctions were granted.

HEARING

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

Application for interlocutory injunctions under s. 80 of the Trade Practices Act 1974 sought against the second respondent, a New South Wales branch of the first respondent, and various union representatives, the third respondent McLean, the fourth respondent Osborne, the fifth respondent Hutchinson and the sixth respondent Gannon.

C. S. C. Sheller Q.C., A. McDevitt and C. B. Vernon, for the applicant.

M. H. McHugh Q.C. and F. Douglas, for the respondents.

Cur. adv. vult.

Solicitors for the applicant: Robert Hall & Co.

Solicitors for the respondents: McClellands.
D. LEVIN

ORDER

UPON the applicant by its counsel undertaking to the court to pay to any party adversely affected by the interlocutory injunctions such compensation (if any) as the court thinks just, in such manner as the court directs: -

THE COURT ORDERS THAT:

1. The respondent Transport Workers Union of Australia, New South Wales Branch, its servants and agents, and the respondents, John Barry McLean, Peter Osborne, Raymond Hutchinson and Ronald Gannon be restrained until the determination of the proceeding or further order from engaging in conduct, in concert with any person, that hinders or prevents the supply of petroleum products including bulk fuel by Amoco Australia Limited to the applicant where such 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 applicant of a purchaser and distributor of petroleum products, including bulk fuel;

2. The costs of all parties be costs in the proceeding; and

3. Liberty be reserved to any party to apply on two days' notice.

DECISION

Leon Laidely Pty. Ltd. ("the applicant") seeks interlocutory injunctions under s. 80 of the Trade Practices Act 1974 ("the Act") to restrain the respondents, The Transport Workers Union of Australia, New South Wales branch, John Barry McLean, Peter Osborne, Raymond Hutchinson and Ronald Gannon from contravening s. 45D. Interlocutory relief is not sought against the respondents, The Transport Workers Union of Australia or R. Pritchard (a male).

It is common ground that the respondents, McLean, Osborne, Hutchinson and Gannon are members of The Transport Workers Union of Australia, New South Wales branch ("The State union").

Most of the facts are not in dispute.

The applicant is a distributor of bulk fuel. It purchases its supplies from Amoco Australia Limited ("Amoco") which are made available from its depots at Banksmeadow and the B.P. Terminal at Port Kembla. The applicant supplies some four hundred customers in New South Wales from its depot at Leppington. The bulk fuel is collected and distributed by the applicant in its own vehicles. The applicant has purchased bulk fuel from Amoco since 1968.

On 19 February 1980, Amoco wrote a letter to the applicant "confirming that Amoco is unable to supply your company with petroleum products at present. As you are aware, our inability to supply is caused by Union action beyond our control."

No supplies of bulk fuel have been received by the applicant from Amoco since 13 February 1980. The applicant estimates the loss to its business at about $1,155.00 for each day on which it is unable to obtain supplies from Amoco.

There are eight competitors of the applicant who carry on a similar business in New South Wales who have continuity of supply.

On 14 February 1980 a driver employed by the applicant told Mr. Laidely, the managing director of the applicant, that when he was delivering fuel to a service station at Canley Vale operated by Mr. Tony Molluso, an Amoco driver approached him and said:

"Did that fuel come out of the depot? If it did, you'll hear all about it. We'll soon stop that."

Later that day Mr. Laidely telephoned the respondent Osborne, the delegate of The State union at the Banksmeadow terminal and told him of this conversation. Mr. Laidely said to Mr. Osborne:

"Tony Molluso is an old customer of mine. He has got the other Amoco site on the Horsely Drive at Smithfield. He wanted to buy the old derelict B.P. site at Canley Vale and I helped him financially, I have an interest in the site. My interest is $30,000.00 with which I put in underground storage tanks and bowsers. I have been delivering to his place for a while. It was previously a B.P. station and we purchased it at auction when thirteen other sites were sold. I am delivering here with Amoco trucks and I am using T.W.U. members to deliver here and the fuels coming from my depot. I can't see where there is any problem. I approached the firm to assist me financially in painting up the service station to operate under the Amoco banner. The person approached at Amoco was Ben Markovich."

Mr. Osborne said:

"Well thanks very much Leon for putting us in the picture."

On Friday 15 February 1980 at about 7.15 a.m. Mr. A. V. Buck, the Terminal Manager of Amoco's Banksmeadow terminal, was present in his office at the terminal when he was approached by Mr. Osborne, Mr. Hutchinson and Mr. Gannon, the latter two being co-delegates of Mr. Osborne of the New South Wales union. Mr. Osborne said:

"There is a 'stop work' meeting in progress and this has been delayed because we want to wait for the shift workers to arrive. You will be contacted again later."

At about 9.40 a.m. the same three men returned to Mr. Buck's office and Mr. Osborne said:

"The 'stop work' meeting was due to the action of Leon Laidely who was seen delivering products to an ex B.P. site at Canley Vale which is considered to be in the metropolitan area. The T.W.U. organiser will not be available till Monday and it is suggested that the company cease loading Leon Laidely's vehicles until discussions are held with the organiser."

The three men left Mr. Buck's office and later returned. In the meantime, Mr. Buck had spoken to his immediate superior at Amoco's head office. He said to Messrs. Osborne, Hutchinson and Gannon:

"Due to legal problems under the Trade Practices Act and the secondary boycott clause, neither the company nor you may impose bans of this nature. However, the company will attempt to contact Mr. Laidely to discuss the situation."

The three men then left Mr. Buck's office and he saw them rejoin a group of Amoco's employees who had been standing near his office since the first discussion that morning at 7.15 a.m.

At about 10.40 a.m. Messrs. Osborne, Hutchinson and Gannon returned to Mr. Buck's office and Mr. Osborne said:

"We are now in dispute with the company and we will meet again at 2.00 p.m. on Monday with our organiser to discuss the matter."

They then left Amoco's premises.

During one of the discussions between Messrs. Buck, Osborne, Hutchinson and Gannon that day, Mr. Osborne said:

"We are worried about Laidely delivering fuel to service stations because I am concerned about continuity of employment. If he can deliver to one service station then he can deliver to other service stations in the metropolitan area."

Mr. Buck said:

"There is nothing to stop him delivering to any of our sites such as Canterbury."

Mr. Osborne said:

"That would'nt be any good to us because he is taking work off us and we don't want to lose any more work than what we already have."

Some time on the same day, 15 February 1980, Mr. Osborne telephoned Mr. Laidely and said:

"The men have gone on strike" or "The men are out on the grass."

Mr. Laidely said:

"Peter, it's silly the fellows being out on strike. Can't you get them to go back to work and let's discuss this."

Mr. Osborne said:

"What would you like to do. Would you like to have a meeting to discuss this."

Mr. Laidely said:

"I will have a meeting anywhere at any time you want to discuss the situation."

On Saturday 16 February, Mr. Osborne telephoned Mr. Laidely and they made arrangements to meet at the Banksmeadow terminal at 1.00 p.m. on Monday 18 February, one hour before the time fixed for a meeting of Amoco's drivers.

At about 1.00 p.m. on Monday 18 February, Messrs. Laidely, Osborne, Gannon, Hutchinson and a Mr. Kevin Hughes who is the New South Wales secretary of The Australian Petroleum Agents and Distributors Association, had a discussion. Mr. Mclean, an official of The State union joined them later. Mr. Laidely mentioned that he had invested a lot of money in Molluso's service station at Canley Vale. Mr. McLean said that, by the applicant employing its own drivers to drive the fuel tankers, he was encroaching on the work of the Amoco drivers.

A little later that afternoon, Messrs. Osborne, McLean, Gannon and Hutchinson left Mr. Buck's office, Mr. Buck having made his office available for the discussion, and joined a number of Amoco drivers outside who were on strike. Mr. McLean explained to the men what had been discussed at the meeting and he outlined a proposal that had been discussed earlier between Messrs. Laidely, Hughes, Osborne, McLean, Gannon and Hutchinson; and the meeting of the men resolved not to accept that proposal. The proposal was a suggestion by Mr. Hughes that Mr. Laidely give a written undertaking to avert a similar situation arising in the future. The men told Mr. Osborne that they proposed to remain in dispute until 17 April, 1980.

Messrs Osborne, McLean, Gannon and Hutchinson then returned to Messrs. Laidely and Hughes. Mr. Buck joined them at that point. Mr. Osborne said that the men had resolved to remain in dispute until 17 April 1980. Further discussion then ensued which led to no solution of the problem. Mr. Osborne then said that the men would be on strike until 17 April when they would have their next oil delegates' meeting. The meeting then ended.

A little later that day, Mr. Buck spoke to Mr. Batchelor and later requested Messrs. Osborne, McLean, Gannon and Hutchinson to return to his office. They did so and Mr. Buck said to them:

"Due to a situation beyond our control we will be unable to supply Leon Laidely because a force majeure, due to a situation which has been created by the union."

Mr. McLean then said:

"Because of the company's action the men will return to work immediately."

Messrs. Osborne, McLean, Gannon and Hutchinson then left Mr. Buck's office.

Later that afternoon, Messrs. Osborne, Gannon and Hutchinson returned and said to Mr. Buck:

"The men should return to work at normal starting time on Tuesday 19 February."

At normal starting time on Tuesday 19 February all employees of Amoco rostered to start work reported for duty. No work was performed by any tanker driver employed by Amoco between the commencement of working hours on Friday 15 February and the normal starting time on Tuesday 19 February. Those drivers included Messrs. Osborne, Hutchinson and Gannon.

On 19 February, Mr. Ruben Markovich, the New South Wales branch manager of Amoco telephoned Mr. Laidely and said:

"I am unable to supply you because of a force majeure situation created by the union."

Mr. Laidely said:

"That's no good. Please give it to me in writing."

Later that day, there was delivered to Mr. Laidely the letter dated 19 February 1980 and signed by Mr. Markovich, the material portion of which I have set out earlier.

The applicant instituted these proceedings on 22 February.

The applicant claims that The State union and Messrs. McLean, Osborne, Hutchinson and Gannon (to whom I shall refer collectively as "the respondents") have contravened s. 45D of the Act in that each of them has in concert with the other engaged in conduct that hinders or prevents the supply of bulk fuel by Amoco to the applicant and that 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 applicant; or

(b) a substantial lessening of competition in the market in which the applicant supplies or acquires bulk fuel.

The respondents say that they engaged in the relevant conduct for the sole purpose of protecting the jobs of Amoco tanker drivers including the personal respondents; alternatively, that if this were not the sole purpose, it was the dominant purpose and is substantially related to the conditions of employment or working conditions of the Amoco tanker drivers including the personal respondents, so that by virtue of s. 45D (3)(a) there is no contravention of the section.

The respondents assert that The State union has been improperly joined as a party as it is not a "person" within the meaning of s. 45D. I shall consider this point first.

In the well-known decision of the House of Lords in Taff Vale Railway Co. v. Amalgamated Society of Railway Servants 1901 A.C. 426 their Lordships decided that a trade union registered under The Trade Unions Acts of 1871 and 1876 (U.K.) may be sued in its registered name. Farwell J., whose judgment was approved by the House of Lords, said at p. 429:

"Now, although a corporation and an individual or individuals may be the only entity known to the common law who can sue or be sued, it is competent to the Legislature to give to an association of individuals which is neither a corporation nor a partnership nor an individual a capacity for owning property and acting by agents, and such capacity in the absence of express enactments to the contrary involves the necessary correlative of liability to the extent of such property for the acts and defaults of such agents. It is beside the mark to say of such an association that it is unknown to the common law."

In Egan v. Barrier Branch of Amalgamated Miners' Association (1917) 17 S.R. (N.S.W.) 243 the Full Court of the Supreme Court of New South Wales held that a trade union was a quasi-corporate body that could be sued civilly for conspiring with its own members or officers to commit a tort. The Chief Justice said at p. 257:

"The Taff Vale Case showed, and it has never been since questioned, that the effect of the registration of trade unions under the Act is to give them at least a quasi-corporate status, which distinguishes between the entity known as a trade union and the individuals who may chance to be its members just as completely, for the present purpose, as in the case of the difference between a fully incorporated company under the Companies Act and the individuals who are its members."

The other members of the court agreed with the Chief Justice on this point.

In Bonsor v. Musicians' Union 1956 A.C. 104, the House of Lords held that a member of a trade union was entitled to maintain an action for damages for breach of contract against the union in its registered name. Lord MacDermott, Lord Keith of Avonholm and Lord Somervell of Harrow decided that a registered trade union is not a juristic person distinguishable at any point of time from the members of which it is at that time composed, yet was capable of being sued in its own name. Lord Morton of Henryton and Lord Porter decided that a registered trade union was capable of entering into contracts and of being sued as a legal entity distinct from its members notwithstanding that it was not an incorporated body.

In Williams & Ors. v. Hursey [1959] HCA 51; (1959) 103 C.L.R. 30 the High Court held that the Hobart Branch of the Waterside Workers' Federation, a registered federal organisation, was merely part of the federal organisation. It was not separately registered as a trade union under Tasmanian law. At p. 53 Fullagar J., after citing the passage from the judgment of Farwell J. in the Taff Vale Case which I have already mentioned, said:

"It appears from this passage that Farwell J. was not prepared to describe the body in question as a 'corporation', though he attributed to it essential characteristics of a distinct juristic person. With all respect to what is said by some of the learned Lords in Bonsor v. Musicians' Union, one would think that a registered trade union either had or had not a personality distinct from that of its members: see Professor Derham's essay 'Theories of Legal Personality in Legal Personality and Political Pluralism'- - ed. Webb,(1958) Australian National University, pp. 16, 17. The holding of the property of a union by trustees is in no way inconsistent with the possession by that union of true corporate personality. It could not give rise to any difficulty in enforcing a judgment against the union by recourse to that property, and it surely cannot be right to say that a judgment against a union, if it is capable of being sued as such, can be enforced against the property of its individual members. But it is sufficient to say that the position under the Commonwealth Act seems to me to be clear. The language of that Act is far more explicit than that of the Trade Union Acts which were considered in the Taff Vale Case. It is, of course, perfectly consistent with the possession of legal personality that the capacity of the 'persona' should be limited: see Derham, loc. cit., pp. 14, 15."

At p. 63 Fullagar J. said:

"The Taff Vale Case decided, to all intents and purposes, that registration under the Acts conferred a corporate personality upon a trade union."

Dixon C.J. and Kitto J. agreed with the judgment of Fullagar J. Menzies J., in a separate judgment, said that in his opinion the decision in Egan v. Barrier Branch of Amalgamated Miners' Association (supra) was correctly decided and cited with approval the passage from the judgment of Cullen C. J. which I have already mentioned.

Thus Dixon C.J., Fullagar, Kitto and Menzies JJ. decided that a registered trade union has a legal personality distinct from its members.

In Moore v. Doyle & Ors. (1967) 15 F.L.R. 59, the Commonwealth Industrial Court (Spicer C.J., Smithers and Kerr JJ.) said at p. 116:

"There is strong authority in the New South Wales Supreme Court (Egan's Case and Wheatley v. Federated Iron Workers' Association of Australia) for the view that a registered trade union is a legal entity separate from its members. This is supported by Heggie's Case in the High Court and by statements in Hursey's Case. It is also strongly supported by a persistent line of authority in the New South Wales Industrial Commission . . . . As at present advised we prefer the view that a New South Wales registered trade and industrial union is a separate legal entity with a legal personality of its own distinct from its members at any particular time."

Their Honours considered fully the history of the Transport Workers' Union of Australia, an organisation registered under the Commonwealth Conciliation and Arbitration Act 1904-1968 and the New South Wales branch of the organisation namely, Transport Workers' Union of Australia, New South Wales branch, the respondent in these proceedings.

It is the conduct of "a person" that is proscribed by s. 45D and that is liable to be restrained under s. 80(1). Section 22 of the Acts Interpretation Act 1901 defines a "person" as including a body corporate as well as an individual.

In my opinion The State union is a separate legal entity with a legal personality of its own distinct from its members. It has a corporate personality and is a body corporate. Hence, it is a "person" within the meaning of ss. 45D and 80.

I turn to the conduct engaged in by the respondents and its purpose.

The first question is whether the respondents, in concert with each other, engaged in the conduct in question.

"Acting in concert involves knowing conduct, the result of communication between the parties and not simply simultanteous actions occuring spontaneously":

per Bowen C.J. in Tillmanns Butcheries Pty. Limited v. The Australiasian Meat Industry and Employees' Union & Ors., a decision of the Full Bench of this court (Bowen C. J., Evatt and Deane JJ.) judgment delivered 7 December 1979, as yet unreported.

Mr. McLean is an official of The State union. Messrs. Osborne, Gannon and Hutchinson are tanker drivers employed by Amoco. Mr. Osborne is the delegate of The State union at the Banksmeadow terminal. Messrs. Gannon and Hutchinson are co-delegates.

Mr. Osborne was involved in the relevant conversations with Mr. Laidely on 14 February. Messrs. Osborne, Gannon and Hutchinson took part in the relevant discussions on 15 February which led to the Amoco tanker drivers going on strike that day and not returning to work until 19 February. They were active participants in bringing about and continuing the strike and went on strike themselves. They, together with Mr. McLean, participated, to the knowledge of each other, in bringing the strike to an end and the men returning to work on 19 February. On 18 February, after Mr. Buck had said to Messrs. McLean, Osborne, Gannon and Hutchinson that Amoco would be unable to supply the applicant "due to a situation which has been created by the Union", Mr. McLean said:

"Because of the company's action the men will return to work immediately."

The men returned to work the following morning.

Amoco's tanker drivers went on strike because the applicant used its own drivers to collect and deliver bulk fuel from the Banksmeadow terminal. The applicant refused to accede to the union demands that this work be done by Amoco's drivers. The strike would have continued until at least 17 April. It was only following Amoco's assurance that it would not supply bulk fuel to the applicant that the respondents brought about the end of the strike.

It is a plain inference from the evidence that Amoco has not supplied the applicant with bulk fuel because it fears further industrial action if supplies are resumed whilst the applicant adheres to its decision to use its own tanker drivers to transport fuel. Amoco's fears are not idle speculation. They are based on the experience of the strike of its tanker drivers from 15 to 19 February and the implied threat of its renewal if supplies to the applicant are resumed whilst the applicant retains its present attitude.

The State union is deemed for the purposes of the Act to engage in that conduct in concert with the respondents McLean, Osborne, Hutchinson and Gannon: see sub-section 45D (5).

In my opinion the respondents in concert with each other engaged in the conduct in question.

The next question is whether their conduct hindered or prevented the supply of bulk fuel to the applicant. Clearly it did for the reasons I have given.

The next question is whether the conduct was engaged in for the purpose of causing substantial loss or damage to the business of the applicant. There is no contravention of s. 45D unless the purpose of causing substantial loss or damage exists; but it may be only one of the purposes of the respondents: sub-section 45D (2).

In my opinion the respondents had more than one purpose. One purpose was what may be described as "a union purpose" namely, to protect the employment of the tanker drivers of Amoco who are members of The State union. Until this particular dispute arose all deliveries of bulk fuel and other petroleum products from the Banksmeadow terminal to service stations throughout the Sydney metropolitan area were carried out by Amoco trucks driven by tanker drivers employed by Amoco. The respondents are concerned that the Amoco drivers may lose their jobs if the practice develops of the applicant and its competitors using their own tanker drivers.

"Nevertheless, the fact that a union and its members acting together have a union purpose does not necessarily exclude the possibility that they had, also, the purpose of causing substantial loss or damage to the business of a corporation. The statement of Evatt J. in McKernan v. Fraser [1931] HCA 54; (1931) 46 C.L.R. 343 is apposite. His Honour in that case (at p. 403) said:

'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 unionists.' "

Per Bowen C. J. in the Tillmanns Butcheries Case (supra) at p. 11.

Counsel for the respondents submitted that they had no personal animus against the applicant or its managing director and had no wish to harm the applicant's business.

In my view the respondents knew that the only pressure that would be effective against the applicant was the prospect of loss or damage to its business. It was one of their purposes to cause that loss. Once they had been assured by Mr. Buck of Amoco that there would be no supply to the applicant, they caused the strike to end. Underlying the conduct of the respondents is the threat of renewed industrial action if supply to the applicant is resumed unless the applicant resiles and surrenders to union pressure. If it stops using its own drivers, supply will be resumed; but not otherwise.

To contravene s. 45 D the purpose must be not merely to cause loss or damage but "substantial" loss or damage.

In Tillmanns Butcheries Case (supra) Bowen C. J. said at p. 12:

"The word. 'substantial' would certainly seem to require loss or damage that is more than trivial or minimal. According to one meaning of the word the loss or damage would have to be considerable. (See Palser v. Grinling 1948 A.C. 291 at pp. 316- 317). However, the word is quantitatively imprecise; it cannot be said that it requires any specific level of loss or damage. No doubt in the context in which it appears the word imports a notion of relativity, that is to say, one needs to know something of the circumstances of the business affected before one can arrive at a conclusion whether the loss or damage in question should be regarded as substantial in relation to that business."

Deane J. said at p. 12:

"In the context of s. 45D (1) of the Act, the word 'substantial' is used in a relative sense in that, regardless of whether it means large or weighty on the one hand or real or of substance as distinct from ephemeral or nominal on the other, it would be necessary to know something of the nature and scope of the relevant business before one could say that particular, actual or potential loss or damage was substantial. As at present advised, I incline to the view that the phrase, substantial loss or damage, in s. 45D (1) includes loss or damage that is, in the circumstances, real or of substance and not insubstantial or not nominal."

The business of the applicant is buying and selling bulk fuel and other petroleum products. It purchases its supplies from Amoco. It operates petrol tankers and associated vehicles. Its supplies from Amoco have been cut off. Although the evidence at this interlocutory stage of the case as to the applicant's business is not extensive, it has some four hundred customers and its purchases from Amoco are substantial in monetary terms. Its business depends on bulk fuel. The strike was intended to last until at least 17 April. Mr. Laidely is not prepared to relent.

The proper conclusion is that the purpose was to cause substantial loss or damage.

The next question is whether the conduct is such that it would have or be likely to have the effect of causing substantial loss or damage.

In Tillmanns Butcheries Case (supra) Bowen C.J. considered the various possible meanings of the word "likely" including "probable" in the sense of "more probable than not"; material risk as seen by a reasonable man such as might happen; some possibility, more than a remote or bare chance; conduct inherently of such a character that it would ordinarily cause the effect specified. His Honour said at p. 14:

"The circumstances to which s. 45D may apply are so various, that I hesitate to place a gloss on the section by preferring one meaning of 'likely' rather than another for the determination of this particular phrase."

Deane J. said at p. 11:

"The conclusion which I have reached is that, in the context of s. 45D (1), the preferable view is that the word 'likely' is not synonomous with 'more likely than not' and that if relevant conduct is engaged in for the purpose of causing loss or damage to the business of the relevant corporation, it will suffice, for the purposes of the sub-section, if that conduct is, in the circumstances, such that there is a real chance or possibility that it will if pursued, cause such loss or damage. Whether or not such conduct is likely (in that sense) to have that effect is a question to be determined by reference to well-established standards of what could reasonably be expected to be the consequence of the relevant conduct in the circumstances. In determining the answer to that question, it will be relevant that the persons engaging in the conduct did so with the purpose of causing such loss or damage."

In my opinion, whichever meaning is adopted, the evidence leads to the conclusion that the likelihood of substantial loss or damage has been established. I rely on what I have already said and the evidence to which I have referred.

It was submitted by counsel for the applicant that the relevant purpose of the conduct of the respondents was to cause a substantial lessening of competition in the market in which the applicant supplies bulk fuel.

I am not satisfied that this was a purpose of the respondents, notwithstanding that it may be the effect or the likely effect of the conduct in question. At this interlocutory stage of the case I prefer to rest my conclusions on the purpose as being to cause substantial loss or damage to the applicant's business.

Counsel for the respondents submitted, in reliance upon paragraph 45D (3), that the dominant purpose for which the conduct was engaged in is substantially related to the conditions of employment or the working conditions of the tanker drivers employed by Amoco who are members of The State union including the respondents, Osborne, Hutchinson and Gannon, so that there is no contravention of the section.

I have held that one of the purposes for which the conduct was engaged in by the respondents was to protect the employment of the tanker drivers employed by Amoco who are members of The State union. I do not find it necessary to decide whether that purpose is substantially related to the conditions of employment or the working conditions of Amoco's employees, as in my view that purpose was not the dominant purpose. Nor do I find it necessary to decide, as counsel for the applicant submitted the court should decide, that the dominant purpose was to cause substantial loss or damage to the business of the applicant.

I respectfully agree with Deane J. in the Tillmanns Butcheries Case (supra) when his Honour said at p. 13 that the question to be answered in determining whether conduct was engaged in for a "purpose" mentioned in s. 45D (1) is:

"to be answered not by reference to whether it was appreciated that the relevant conduct might have the specified effect but by reference to the real reason or reasons for, or the real purpose or purposes of, the conduct and to what was in truth the object in the minds of the relevant persons when they engaged in the conduct in concert."

Nor do I find it necessary to decide whether the well-recognised distinction between purpose and motive should be observed in construing s. 45D.

Whether motive is taken into consideration or not, in my view the union purpose was not the dominant purpose of the respondents.

Messrs. McLean, Osborne and Gannon swore affidavits in which each of them said:

"I deny that I, in engaging in the conduct complained of" have "done so for any purpose of causing loss or damage to the business of any corporation or body corporate related to any corporation or for any purpose of substantially lessening competition in any market in which any corporation or related body corporate supplies or requires goods or services. I say that the sole purpose of the conduct of which complaint is made is to protect the employment of the employees of Amoco who are members of the T.W.U."

They were not cross-examined.

It is for the court to determine on the whole of the evidence whether the respondents engaged in the relevant conduct for a particular purpose. Even if I treat the evidence of the respondents, McLean, Osborne and Gannon as statements of belief, reason or motive, they are but part of the whole complex of facts from which purpose is to be ascertained.

Notwithstanding their evidence, when it is viewed in the light of the objective facts to which I have referred, in my view it was one of the purposes of the respondents to cause substantial loss or damage to the business of the applicant.

The strike plainly occurred as a means of bringing pressure to bear upon Amoco to cease supplying bulk fuel to the applicant unless and until Amoco's own drivers, and no others, were used to transport the fuel. Once Amoco capitulated, as it did, and refused to supply the applicant, the strike ceased; but with the implied threat that industrial action would revive if Amoco recommenced supply to the applicant in circumstances where the applicant's fuel was delivered by drivers other than employees of Amoco. Loss or damage to the business of the applicant was intended. No doubt the respondents hoped that the applicant would capitulate in order to avoid the loss or damge to its business; but unless it did, there would be not supply by Amoco.

The granting of interlocutory injunctive relief depends essentially upon whether a prima facie case has been established in accordance with the principles expressed by the High Court in Beecham Group Limited v. Bristol Laboratories Pty. Limited [1968] HCA 1; (1968) 118 C.L.R. 618 and by the Full Bench of this court in World Series Cricket Pty. Limited v. Parish (1977) 16 A.L.R. 181; and whether the balance of convenience favours such course of action.

My findings are not final and I have borne in mind the following passage from the reasons for judgment of Bowen C. J. in the World Series Cricket Case (supra), with which I respectfully agree:

"The court is given jurisdiction to grant an interim injuction under s. 80 (2) where, in its opinion, 'it is desirable to do so'. These words confer a judicial discretion of the widest kind upon the court. It is not an arbitrary discretion but one to be exercised judicially in accordance with principles....Whether or not the jurisdiction being exercised is equitable, it is inherent in the nature of an application for interlocutory relief that the evidence upon which the application must be determined will be incomplete and unsatisfactory for the purpose of making a final finding.....

In Beecham Group Limited v. Bristol Laboratories Pty. Limited...the High Court expressd the view that in all cases, including patent cases, a court, when contemplating, granting or refusing interlocutory relief, must direct itself to both the prima facie strength of the plantiff's claim and the balance of convenience. A plaintiff is required to make out a prima facie case, 'in the sense that if the evidence remains as it is, there is a probability that at the trial of the action, the plaintiff will be held entitled to relief'...The strength of the case which the plaintiff must make out will depend upon the nature of the right which he is seeking to assert, and the consequences which will flow from the making of the interlocutory orders. However, where the facts are seriously in dispute, the court will not undertake a preliminary trial of the action in order to forecast a probable result, but rather, if the plaintiff has a fair chance of success (and what will be required will vary according to the nature of the case), the court will proceed to look to the balance of convenience."

In my opinion the applicant has established a prima facie case in the sense referred to by the High Court and the Full Bench of this court.

As to the balance of convenience, the continued withholding of supply by Amoco from the applicant will seriously hinder, if not prevent, the applicant from carrying on its business and cause it serious loss or damage.

The respondents have not been able to point to any detriment which may be suffered by them if interlocutory injunction are granted. Nor can I see any.

For these reasons I am satisfied that the applicant is entitled to the benefit of interlocutory relief.

Upon the applicant by its counsel undertaking to the court to pay to any party adversely affected by the interlocutory injuctions such manner as the court directs, I make the following orders:-

1. That the respondent Transport Workers Union of Australia, New South Wales Branch, its servants and agents, and the respondents, John Barry McLean, Peter Osborne, Raymond Hutchinson and Ronald Gannon be restrained until the determination of the proceeding or further order from engaging in conduct, in concert with any person, that hinders or prevents the supply of petroleum products including bulk fuel by Amoco Australia Limited to the applicant where such 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 applicant of a purchaser and distributor of petroleum products, including bulk fuel;

2. That the costs of all parties be costs in the proceeding; and

3. That liberty be reserved to any party to apply on two days' notice.