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Federal Court of Australia |
COURT
FEDERAL COURT OF AUSTRALIACATCHWORDS
Trade Practices - Secondary boycott - Conduct of participant members of "organization of employees" deemed conduct of organization - Whether "organization of employees" registered under Industrial Arbitration Act, 1940 (N.S.W.), a "body corporate" within meaning of s. 45D (6) of Trade Practices Act 1974 (Cth) - Interrogatories - Interrogatories directed to participant members - Ambit of right to refuse to answer interrogatories - Self-incrimination - Risk of pecuniary penalty - Interrogatories oppressive - Trade Union Act, 1881 (N.S.W.) - Industrial Arbitration Act, 1940 (N.S.W.) - Trade Practices Act 1974 (Cth), ss. 45D (1), (5), (6) (b), (6) (c), 76, 77, 78, 80, 82 - Federal Court Rules, O. 16, rr. 1, 2, 6. Orders were sought for injunctions pursuant to s. 80 of the Trade Practices Act 1974 (the Act) and for damages pursuant to s. 82 against five respondents, namely a federal organization of employees, an industrial union registered under the Industrial Arbitration Act, 1940 (N.S.W.), a State union officer, a State union member and another person. By its statement of claim the applicant alleged that the State union officer and the State union member had committed acts prohibited by s. 45D (1) of the Act. It further alleged as a result of the conduct of the State union officer and the State member, the federal organization and the State union were deemed to have contravened the section, by reason of the operation of s. 45D (5). The applicant delivered interrogatories for the examination of the second, third and fourth respondents. The third and fourth respondents objected to answering certain of the interrogatories directed to each of them on various grounds. By notice of motion the applicant sought orders that the third and fourth-named respondents be directed to answer the interrogatories directed to each of them which remained unanswered.Held: (1) It was not appropriate to attempt to decide definitively at interlocutory state whether or not the State union was a "body corporate" within s. 45D (6) of the Act.
Transport Workers' Union of Australia (New South Branch) v. Leon Laidely
Pty. Ltd. [1980] FCA 25; (1980), 43 FLR 168, followed.
(2) Whether or not the State union was at the material time a "body
corporate" within the Act, the third-named and fourth-named
respondents could
not be directly liable in damages under s. 82 of the Act. Thus to establish
jurisdiction for any claim in damages
against them the applicant had to seek
the grant of a permanent injunction under s. 80. In such circumstances
interrogatories directed
to their alleged conduct in the past which, if
established, might support a finding of damage to the applicant, would be
oppressive
in that such interrogatories would be irrelevant to the issue of
whether or not a permanent injunction should be granted.
(3) If the State union were not a "body corporate" within the Act, the State union officer and the State union member could be exposed to the possibility of the imposition of a pecuniary penalty because in such circumstances a penalty can be imposed on an officer of the union by proceedings which by s. 45D (6) (c) (i) would be deemed to be proceedings against the third and fourth-named respondents as members of the union. Such proceedings, if successful, could result in process being issued and executed against any property in which the State union has or in which any members have in their capacity as such members a beneficial interest, by s. 45D (6) (c) and ss. 76 and 77 of the Act. In such circumstances the third and fourth-named respondents should not be obliged to answer interrogatories which could expose them to such pecuniary penalty.
Refrigerated Express Lines (A/asia) Pty. Ltd. v. Australian Meat and
Livestock Corporation (1979), 42 FLR 204, referred to with approval.
(4) If the answers of the third and fourth-named respondents revealed that they intended to cause any harm or damage to the applicant (which specific intention is not a necessary component of a breach of s. 45D) they might thereby expose themselves to prosecution in respect of a common law conspiracy from which they are not immune from prosecution by virtue of s. 78 of the Act.
Tillmanns Butcheries Pty. Ltd. v. Australasian Meat Industry Employees' Union [1979] FCA 84; (1979), 42 FLR 331: Transport Workers' Union of Australia (New South Wales Branch) v. Leon Laidely Pty. Ltd. [1980] FCA 25; (1980), 43 FLR 168, referred to.
In such circumstances the third and fourth-named respondents should not be obliged to answer interrogatories which exposed them to the possibility of such criminal prosecution.
Re Intercontinental Development Corporation Pty. Ltd. (1975), 1 ACLR 253,
referred to with approval.
(5) Interrogatories will not be directed to be answered where a person interrogated is asked to reveal his state of mind.
Service v. Coote (1891), 17 VR 40, followed.
Jordan v. Sanders, (1934) SASR 424, not followed.
Notice of motion dismissed with costs.
A. A. McDevitt, for the applicant.
B. M. J. Toomey Q.C. and F. M. Douglas, for the respondents.
HEARING
Sydney, 1980, December 8-9, 17; 1981, January 23. 23:1:1981 By notice of motion dated 3rd December, 1980, the applicant sought orders
that the third and fourth-named respondents (an officer
and member of the
State union respectively) be directed to answer their respective unanswered
interrogatories delivered for their
examination on 7th November, 1980.
Cur. adv. vult.
Solicitors for the applicant: Robert Hall & Co.
Solicitors for the respondents: McClellands.
D. LEVIN
DECISION
January 23.The following judgment was delivered.Navair Pty. Ltd. a company incorporated under the Companies Act, 1961 (N.S.W.), sought certain orders pursuant to s. 80 of the Trade Practices Act 1974 (Cth) (the Act), including an interim injuction, against five respondents, namely the Transport Workers' Union of Australia (the federal organization), the Transport Workers' Union of Australia (New South Wales Branch) (the State union), John Barry McLean, David Arthur McNally and George Henry McKay. The applicant also sought damages against the five respondents pursuant to s. 82 of the Act. (at p179)
EVATT J. By application filed 4th August, 1980, and numbered G. 61 of 1980
2. It is common ground that the first respondent is an organization of employees registered under the Conciliation and Arbitration Act 1904 (Cth); that the second respondent is an industrial union registered under the provisions of the Industrial Arbitration Act, 1940 (N.S.W.); that the third respondent is a member of and an organizer employed by the second respondent and that the fourth respondent is also a member of the second respondent who was in July 1980 an employee of Mobil Oil Australia Ltd. (Mobil Oil) a company incorporated under the Companies Act 1958 (Vic.). (at p179)
3. Such application came on for directions hearing and for hearing of an application under s. 80 (2) of the Act for an interim injunction before Franki J. on 14th and 15th August, 1980. It was then ordered that the matter proceed by way of pleadings, directions being made in respect of a timetable for such pleadings and the administering of interrogatories and the answering thereof in accordance with 0.16 of the Federal Court Rules. Subsequently, the hearing of the matter was fixed for 16th February, 1981. (at p179)
4. On 15th August, 1980, Franki J., having refused to make any order for an interim injunction against the first and fifth respondents made, inter alia, the following order: "The second respondent, Transport Workers' Union of Australia New South Wales Branch, by itself, its servants and agents, the third respondent John Barry McLean and the fourth respondent David Arthur McNally be each restrained until the determination of the proceedings in G. 61 of 1980 or further order from engaging in conduct in contravention of s. 45D of the Trade Practices Act 1974 in concert with any person that hinders or prevents the supply of aviation gasolene or other petroleum product by Mobil Oil Australia Ltd. to any driver of a tanker vehicle of Navair Pty. Ltd. who is not in breach of the Transport Industry Petroleum etc. Distribution (State) Award of 18th April, 1980, where such conduct is engaged in for the purpose and has or would be likely to have the effect of causing substantial loss or damage to the business of the applicant." (at p180)
5. In his ex tempore judgment Franki J. stated: "I consider that this is a
matter in which I prefer to give oral judgment rather
than to delay to express
my reasons, perhaps more fully, in a reserved judgment. This is an application
under s. 80 of the Trade Practices Act 1974 for an interlocutory injunction to
restrain conduct said to be in contravention of s. 45D of the Act. The
application is brought
by Navair Pty. Ltd., a company which operates
approximately thirty aircraft from Bankstown Airport. The aircraft are used
for flight
training, air charter services and commuter airline operations.
"The first respondent is the Transport Workers' Union of Australia. I am not
satisfied that there is evidence of any significance
against the first
respondent.
"The second respondent is the Transport Workers' Union of Australia New
South Wales Branch, and it is admitted that it is an industrial
union
registered under the provisions of the Industrial Arbitration Act, 1940
(N.S.W.).
"The third respondent is John Barry McLean, a union organizer employed by
the second respondent.
"The fourth respondent is David Arthur McNally, an employee of Mobil Oil
Australia Ltd., which I will call Mobil Oil, which operates
a depot at
Bankstown situated within the airport perimeter. It is admitted that he is a
member of the second respondent.
"The fifth respondent is George Henry McKay, but there is no evidence
against him.
"The applicant refuels aircraft at Bankstown Airport utilizing a mobile fuel
tanker vehicle. Prior to a time towards the end of
May 1980 the tanker had
been driven by two employees of the applicant at least one of whom was a
non-unionist.
"It was the practice to drive the tanker to the Mobil Oil depot in the
airport where it was filled, either by an employee of Mobil
Oil or by the
driver of the vehicle. It was then the practice to drive the tanker to the
various aircraft and refuel them from the
tanker.
"On 18th April, 1980, an award was made under the New South Wales Industrial
Arbitration Act entitled 'Transport Industry Petroleum
etc. Distribution
(State) Award'. Clause 40 sub-cl. (1) of that award provides: 'Preference of
employment to members of the Transport
Workers' Union of Australia New South
Wales Branch shall be in the following terms: (a) In the employment of persons
by an employer
no discrimination shall be exercised against members of the
union. (b) Where a worker other than a member of the union is engaged,
such
worker shall within fourteen days after commencing work make application for
membership of the union and if accepted shall complete
such application. (c)
Workers at present employed shall within fourteen days from the date on which
this award takes effect make
application for membership of the union and if
accepted shall complete such application. (d) Any person who has made
application
for membership of the union in accordance with this clause, and
whose application is rejected, and any person expelled from membership,
shall
be deemed to be a member of the union for the purpose of this award, except a
person struck off the register for arrears of
dues.
"Whilst it is necessary to express some views upon the evidence it must be
remembered that I am only forming such views as are appropriate
for
interlocutory proceedings, and that nothing I say is to be regarded as a
conclusive finding relevant to the determination of
the application for a
permanent injunction when that application comes on for hearing, or relevant
to any other proceedings which
are or may be before any court or tribunal.
"It would appear the principal task of the driver of the tanker, for
example, before 7th August, 1980 - one was a Mr. Namroud -
was to operate the
tanker for the purpose of refuelling aircraft, and this would appear to be
within the definition of 'aerodrome
attendant' in cl. 2 of the award.
"I reiterate I am making no finding to this effect, and point out that there
is no evidence before me as to the scope of the Carters
etc. (State)
Conciliation Committee, and it seems that the award only applies to employees
referred to in cl. 1 of that award. I
am simply saying that on the material
before me it appears likely that the driver of this tanker, at least in the
past, has been
within that classification of aerodrome attendant.
"Since about 23rd May, 1980, attendants employed by Mobil Oil have refused
to allow the applicant's tanker vehicle to be filled
with fuel at the depot.
On about 30th May, 1980, the respondent, Mr. McLean, addressed a meeting of
aircraft operators, saying in
substance that there was a dispute because the
Transport Workers' Union wanted the award enforced, and that the award was the
law
of the land and that anybody who refuels aircraft must be a member of the
Transport Workers' Union.
"Mr. McLean also produced on that occasion a copy of the award. There was
some question whether Mr. McLean used the word 'dispute'
or, instead, the word
'ban'. On 21st July, 1980, the fourth respondent, Mr. McNally, telephoned the
managing director of the applicant,
Mr. Hazelton, and complained that the
applicant's tanker was being refuelled at night, and said that if this was
seen to happen again
'we will turn off the power for the key-lock system and
it will mean that nobody can use the keylocks'. It seems that after normal
working hours there was a bowser where fuel could be obtained, but that bowser
was locked and that the applicant had in its possession
a key to the bowser.
"On 25th July, 1980, the fourth respondent refused to fill the tanker when
driven to the Mobil Oil depot by Mr. Hazelton after the
fourth respondent had
asked him - that is, Mr. Hazelton - whether he had a union badge and he had
said that he had not.
"An application was made to me in chambers on 30th July, 1980, to grant an
ex parte injunction, but I refused to do this, and this
application that is
before me now was filed on 4th August, 1980, and served on the second
respondent on 5th August, 1980.
"The third respondent said in evidence that since 1969 the oil section of
the Transport Workers' Union has been in dispute with
Mobil Oil Australia Ltd.
on many occasions over the issue of manning at Bankstown Airport. He also said
that in early April 1980,
before the award which I had mentioned came into
force, there were discussions between him and others and Mobil Oil concerning
issues
of safety, manning and the use of non-union labour. I am not impressed
with the relevance of those aspects of the proceedings now
before me.
"It seems prior to 5th August, 1980, the applicant had been able to fuel its
aircraft at Bankstown by taxi-ing the aircraft to the
bowser at the Mobil
depot but that union action prevented this since about 5th August, 1980, and
that this union action applied not
only to the applicant but also to the Royal
Aero Club of New South Wales which habitually used its own tanker to refuel
its planes
at the airport.
"I make reference to some allegations concerning the way in which members of
the Hazelton family performed work but I am not impressed
with the relevance
of that material in these proceedings. I consider if I regard Mr. McNally as
the first person, Mr. McLean, or
the second respondent, as the second person,
Mobil Oil Australia Ltd. as the third person and the applicant as the fourth
person
within the words of s. 45D, and I think it is appropriate so to do,
then there has been conduct between the first person, Mr. McLean
and the
second person, either Mr. McNally or the second respondent which, so far as is
necessary for the proof of a prima facie case,
should be regarded as having
been engaged in for the purpose and as being such as would have or be likely
to have the effect of causing
substantial loss or damage to the business of
the applicant. I have in mind s. 45D (5) in relation to the second
respondent.
"It was submitted on behalf of the respondent that any relevant conduct fell within the defence provided by s. 45D (3). However, without dealing with this section in precise detail in relation to the particular facts of this case, it seems to me clear that looking at the matter as I should look at it in regard to the establishment of a prima facie case, the dominant purpose for the conduct engaged in was for the purpose of ensuring that persons who drive the relevant tanker were members of the second respondent. It seems to me as far as is relevant for determination of whether a prima facie case exists that the applicant has succeeded." (at p183)
6. His Honour then considered the question of the balance of convenience
during which he observed: "I consider that a critical question
in this case is
that arising from examination of cl. 40 of the award to which I have referred
and I think this is a very important
question in relation to the exercise of
the court's discretion.
"It seems to me that is a matter that I have to bear carefully in mind. I consider that the court should proceed on the basis that the award is validly made although, as I have said, its scope is by no means clear on the evidence before me." (at p183)
7. On 21st August, 1980, a statement of claim against the first four respondents in G. 61 of 198/ was filed by the applicant. Such statement of claim was numbered G. 70 of 1980. Thereafter documents filed in the matter have been numbered G. 70 of 1980. On 8th December, 1980, the court ordered that G. 61 of 1980 and G. 70 of 1980 be consolidated, it being noted that the applicant was not proceeding against Mr. McKay, the fifth respondent in matter G. 61 of 1980. (at p183)
8. On 11th September, 1980, the four respondents filed their defence which denied, inter alia, that the third and fourth respondents were members of the first respondent; that the respondents committed the breaches of s. 45D of the Act alleged in the statement of claim and further said, pursuant to s. 45D (3) of the Act, in answer to the whole of the claim, that any conduct in which the respondents may be found to have engaged which would otherwise amount to a contravention of s. 45D of the Act was for a dominant purpose substantially related to the remuneration, conditions of employment or working conditions of Mr. McNally or those of his and his fellow employees. (at p183)
9. On 7th November, 1980, the applicant, purportedly pursuant to O. 16, r. 1, filed and served a notice on the second, third and fourth respondents requiring those respondents to answer specified interrogatories, totalling in all thirty-seven. (at p183)
10. Interrogatory No. 37 was the only interrogatory directed to the second respondent, the State union. (at p184)
11. Interrogatories Nos. 1 to 21 inclusive were directed to Mr. McNally whilst interrogatories Nos. 21 to 36 inclusive were directed to Mr. McLean. As both Mr. McLean and Mr. McNally objected to answering most of such interrogatories on various grounds, the applicant on 3rd December, 1980, filed a notice of motion seeking orders that the third and fourth respondents be directed to answer their respective unanswered interrogatories. This procedure was apparently taken under O. 16, r. 5 of the rules of court. (at p184)
12. Such motion came on for hearing on 8th and 9th December, 1980, when leave was granted to the two respondents to file further verified statements in answer to interrogatories beyond the date earlier set by the court for so doing. On 9th December, 1980, the court adjourned the hearing of the motion to 17th December, 1980, to enable additional grounds of objection to answering certain interrogatories which had been argued to be verified by the respondents. Such verification having been filed by 17th December, 1980, the court then ordered that the notice of motion be dismissed with costs, indicating that reasons for judgment could not then be given owing to the court's commitments interstate but that it was then anticipated that such reasons would be published towards the end of the court vacation some three or four weeks before 16th February, 1981, the date set for the hearing of the substantive matter. Such reasons for judgment are now published. (at p184)
13. It is emphasized that no interrogatory has been directed to the first respondent, the federal organization. That respondent clearly acquired a corporate character upon registration under the provisions of the Conciliation and Arbitration Act 1904 (see ss. 136 and 146; Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1908) 6 CLR 309 and Williams v. Hursey [1959] HCA 51; (1959) 103 CLR 30, at p 52 ). (at p184)
14. As stated, the State union has been asked only the one interrogatory. Such interrogatory has been answered and verified by one, Edward C. McBeatty, the secretary of the union. That interrogatory and answers are as follows: 37A. Look at the letter dated 7th November, 1980, written by the secretary-treasurer to the Industrial Registrar and say: (a) Did the second respondent authorize the respondent McLean to address the meeting referred to in that letter? (b) If no, did the respondent McLean address this meeting during the course of his employment as an organizer of the second respondent. Answers: (a) Yes, (b) not applicable. (at p184)
15. Despite the length of the other thirty-six interrogatories it is
necessary, in my view, to set them out in full together with
the answers to
those to which Mr. McNally or Mr. McLean did not object. Each interrogatory is
numbered with the letter "A" whilst
the answer thereto as verified bears the
corresponding number with the letter "B" or "B (i) and B (ii)".
INTERROGATORIES ASKED OF MR. MCNALLYLtd. at its depot at Bankstown Airport? 1B. Yes.
"1A. On or about 21st July, 1980, were you employed by Mobil Oil Australia
"2A. If yes, in what capacity were you so employed? 2B. Refueller.applicant when required? 3B. Yes.
"3A. Did part of your duties include refuelling the tanker vehicle of the
"5A. If so, for what purpose did you telephone him? (Objected to.)'You have been seen to fill your tanker truck from the key-lock system after the depot has closed. If this is seen to happen again, we will turn off the power for the key-lock system so that nobody can use it'? (Objected to.)
"6A. If so did you say to him these words or words having a similar effect:
"10A. If yes, did you refuel such vehicle? 10B. No.not to refuel it with any other person? (Objected to.)
"11A. If no, for what reason did you not refuel it? (Objected to.)
"12A. If you did not refuel it had you previously discussed your decision
"19A. Do you know the respondent McLean? 19B. Yes.Workers' Union of Australia New South Wales Branch.
"20A. In what capacity do you know him? 20B. As an official of the Transport
INTERROGATORIES ASKED OF MR. MCLEANoperators at the Royal Aero Club, Bankstown Airport?
"22A. On or about 30th May, 1980, did you address a meeting of aircraft
Order 16, r. 2 (2) of the rules of court provides:party requiring the answers:
"A party shall . . . answer interrogatories by filing and serving on the
(a) a statement in accordance with rule 6; andgrounds but no other:
(b) an affidavit verifying that statement."
Order 16, r. 6 (3) provides:
". . . a party may object to answering any interrogatory on the following
(b) that the interrogatory is vexatious or oppressive; and16. The grounds of objection to interrogatories Nos. 5, 6, 11, 14, 21, 31, 34, 35 and 36 have been verified as follows: (a) that it (the interrogatory) is vexatious, oppressive and an abuse of the process of the court; (b) that it is a fishing interrogatory; (c) that in answering the interrogatory I may tend to expose myself to the imposition of a penalty; (d) that the interrogatory seeks to question me as to my state of mind; (e) that the answer may tend to incriminate me. (at p187)
(c) privilege." (at p187)
17. Grounds of objection to interrogatory No. 12 have been verified as the same as grounds (a), (b), (c) and (e) above whilst grounds of objections to interrogatories Nos. 27, 28, 29 and 30 are verified as the same as grounds (a), (b), (c) and (e) together in each case with a further gound that the interrogatory seeks details of what was said and not the substance thereof. Interrogatory No. 23 is also objected to on this further ground together with grounds (c) and (e) above. (at p187)
18. In answers 13B (ii), 16B (ii), 17B (ii), 18B (ii), 24B (ii), 25B (ii), 26B (ii), 32B (ii) and 33B (ii) the sole objection, if each or any of the interrogatory is applicable, is that the answer "may tend to incriminate me". (at p187)
19. After argument, Mr. McDevitt, counsel for the applicant, indicated that he was not pressing interrogatories Nos. 5A and 6A. (at p187)
20. Before considering the validity of the above grounds of objections
relevant parts of subsections of s. 45D and other sections
of the Act are
referred to. The applicant's claim alleges a breach of those parts of s. 45D
(1) which read:
"45D. (1) Subject to this section, a person shall not, in concert with a
second person, engage in conduct that hinders or prevents
the supply of goods
or services by a third person to a fourth person . . . where -
(b) the fourth person is a corporation and the conduct is engaged in for the
purpose, and would have or be likely to have the effect,
of causing (the) loss
or damage (referred to in the sub-section)." (at p187)
21. As claimed the "person" referred to in s. 45D (1) is either Mr. McNally or Mr. McLean, the "second person" is then respectively either Mr. McLean or Mr. McNally, the "third person" is Mobil Oil whilst the "fourth person" is the applicant, Navair Pty. Ltd. (at p187)
22. The applicant does not claim that either the federal organization and/or the State union directly acted in concert with one another or with either or both the third and fourth respondents for a purpose contrary to s. 45D (1). Consequently it is unnecessary, at this stage at least, to determine whether the second respondent is a "person" within the meaning of that word in s. 45D (1) but it is noted that "person" is not defined in the Act. Section 22 of the Acts Interpretation Act 1901 (Cth) provides that, unless the contrary intention appears, "person" shall include a body politic or corporate as well as an individual. Section 4 (5) of the Act also provides that "the express references in this Act to corporations and bodies corporate shall not be taken to imply that references to persons do not also include references to persons who are not natural persons". (at p188)
23. But the applicant claims that as a result of the alleged conduct of the third and fourth respondents both the first and second respondents (that is, the federal organization and the State union) are deemed to have contravened the provisions of s. 45D (1) of the Act as a result of the provision of sub-s. (5) of that section. (at p188)
24. Subsection (5) of s. 45D reads: "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 interest 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 concert with other persons, the organization shall be deemed for the purposes of this Act to engage in that conduct in concert with the participants, and so to engage in that conduct for the purpose or purposes for which that conduct is engaged in by the participants, unless the organization establishes that it took all reasonable steps to prevent the participants from engaging in that conduct." (at p188)
25. Clearly both the federal organization and the State union are "organizations of employees" within the meaning of that phrase in s. 45D (5). (at p188)
26. Further, consideration must be given to the question whether the second respondent (the State union) is a "body corporate" within the meaning of that phrase in s. 45D (6). This complex question involves consideration of the New South Wales Trade Union Act, 1881 and the Industrial Arbitration Act, 1940 and numerous decisions of the English courts, of the High Court of Australia, of the Australian Industrial Court and its predecessor the Commonwealth Industrial Court, of the Supreme Court of New South Wales, of the New South Wales Industrial Commission and more recently of the Federal Court of Australia. (at p188)
27. The Trade Union Act, 1881 (N.S.W.) is still in force. The New South Wales Industrial Arbitration Act, 1940 provides that "any trade union of employees" may be registered under that Act and on registration shall be an industrial union until such registration is duly cancelled. The Industrial Arbitration Act defines a "trade union" as meaning a trade union registered under the Trade Union Act. That Act defines the term "trade union" to mean any combination for regulating the relations between workmen and employers or between workmen and workmen and for imposing restrictive conditions on any trade or business etc. (see s. 31 of the Trade Union Act, 1881 (N.S.W.)). Both Acts are silent as to the legal status of a registered trade union and an industrial union respectively. (at p189)
28. Although there is strong support for the conclusion that a registered trade and industrial union in New South Wales has, by judicial implication, a corporate character, particularly in proceedings brought under the New South Wales Act, this question generally is, in my view, still to be finally and authoritatively resolved (see Taff Vale Railway Co. v. Amalgamated Society of Railway Servants [1901] UKHL 1; (1901) AC 426 ; Amalgamated Society of Railway Servants v. Osborne (1910) AC 87 ; Kelly v. National Society of Operative Printers' Assistants (1915) 84 LJ KB 2236 ; Bonsor v. Musicians' Union (1956) AC 104 ; Williams v. Hursey [1959] HCA 51; (1959) 103 CLR 30, at pp 63, 66 ; Egan v. Shop Distributive and Allied Employees' Association (1979) 53 ALJR 55 ; Egan v. Barrier Branch of Amalgamated Miners' Association (1917) 17 SR (NSW) 243 ; Brailey v. Sydney Branch of Waterside Workers' Federation of Australia (1935) AR (NSW) 148, at p 153 ; Lasbies v. MacKay (1945) AR (NSW) 562, at p 574 ; Costello v. Gietzelt (1960) 1 FLR 446 ; Hoolahan v. Gietzelt (1960) 1 FLR 469 ; Murphy v. Applebee (1959) 3 FLR 361, at pp 364, 365 ; Moore v. Doyle (1969) 15 FLR 59 ; Transport Workers' Union of Australia (New South Wales Branch) v. Leon Laidely Pty. Ltd. [1980] FCA 25; (1980) 43 FLR 168 ). (at p189)
29. I respectfully adopt the remarks of Bowen C.J. in Laidely's case where he
states: "Dealing with the position of the union there
is some divergence
between the English and Australian authorities relating to trade unions, which
leaves it a matter of some doubt
and difficulty whether a trade union such as
this respondent, registered under the Industrial Arbitration Act, 1940
(N.S.W.) and
governed by the Trade Union Act, 1881 (N.S.W.), has legal
personality or is to be regarded as a 'body corporate' for the purposes
of the
Acts Interpretation Act 1901 (Cth) or as a 'person' for the purposes of s. 45D
(1) of the Trade Practices Act 1974. This again appears to me to be a serious
question to be tried in the light of all the facts as they exist after the
full trial of
the matter and not a matter to be decided definitively at this
interlocutory stage" (1980) 43FLR, at pp 172-173 . I am also of the
opinion
that this question should not in all the circumstances be decided definitively
at this stage of this proceeding. Suffice
it to say that, in my view, there is
a real possibility that, contrary to views expressed by Deane J. in Laidely's
case (1980) 43
FLR, at p 181 and by Lockhart J. in Leon Laidely Pty. Ltd. v.
Transport Workers' Union of Australia [1980] FCA 15; (1980) 42 FLR 352 , the second
respondent herein (the State union) is not a "body corporate" within the
meaning of that phrase in s. 45D (6) of the
Act.
RE APPLICANT'S ACTION FOR LOSS OR DAMAGE (at p190)30. In the present proceeding the applicant is also claiming damages under s. 82 of the Act. Section 45D (6) (b) prohibits such action against the third and fourth respondents if it is determined that the organization of employees of which they were members at the relevant time was a body corporate. On the other hand, if it is determined that such organization was, at the relevant time, not a body corporate within the meaning of that phrase in s. 45D (6), then no proceeding under s. 82 can be directly brought against the third and fourth respondents (s. 45D (6) (c) (i)). (at p190)
31. Accordingly the only further order that the court could make in the present proceeding against either the third or fourth respondent is an order granting a permanent injunction under and in accordance with s. 80 of the Act. (at p190)
32. If the applicant were not seeking an injunction under s. 80 of the Act against the third and fourth respondents, then the court would have no jurisdiction to hear the action for damages against them. Under such circumstances, should the court entertain a motion seeking orders directing those two respondents to answer interrogatories relating to alleged past conduct by them which if proved might support a finding of damage to the applicant when an order could not be made against them personally for the payment of such damages as a result of their conduct? (at p190)
33. Obviously if the third and fourth respondents were not parties to the
proceeding then no such interrogatories could be administered.
Simply by
joining the third and fourth respondents as parties to a proceeding in which
damages are claimed against other respondents
for the purpose of seeking, in
the same proceeding, an injunction under s. 80 of the Act against those two
respondents does not mean
that in those circumstances the applicant is
entitled to administer interrogatories directed to the third and fourth
respondents
which are not relevant to the issue whether a permanent injunction
under s. 80 should be granted. Such interrogatories would in my
opinion be
oppressive and need not be answered.
RE CLAIM OF PRIVILEGEpecuniary penalty (at p191)
(i) Possibility of proceeding against third and fourth respondents for
34. I respectfully agree with the observations of Deane J. in Refrigerated Express Lines (A/asia) Pty. Ltd. v. Australian Meat and Live-stock Corporation (1979) 42 FLR 204 in which a review of the early cases dealing with the principles relating to the raising of an objection by a party to litigation to both the discovery of documents and the providing of information if the result thereof would be to provide evidence against him which may be used to establish his liability to a penalty in other proceedings. (at p191)
35. Deane J. stated: "It is a well-established principle that a defendant in
proceedings which are solely for the recovery of a pecuniary
penalty should
not be ordered to disclose information or produce documents which may assist
in establishing his liability to the
penalty (see, generally, per Isaacs J. in
R. v. Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738, at pp 741-748 ;
Naismith v. McGovern [1953] HCA 59; (1953) 90 CLR 336, at pp 341-342 ; and Martin v. Treacher
(1886) 16 QBD 507 ). Even where, as in the present case, the proceedings are
not for recovery of a penalty but to prevent and redress civil injury,
a party
to litigation ought not to be compelled to provide information or produce
documents for inspection by the other party if
the result thereof will be to
provide evidence against him which may be used to establish his liability to a
penalty in other proceedings
(Mayor of the County Borough of Derby v.
Derbyshire County Council (1897) AC 550, at p 552 ).
"In the former case, that is to say in a mere action for a penalty, a court
should, in the absence of statutory provision to the
contrary, refuse to make
any order at all against the defendant for discovery or production of
documents or provision of information
for the reason that the whole and avowed
object of the proceedings being the imposition and the recovery of a penalty,
an order for
the production of documents or provision of information against
the defendant can, so far as the prosecutor of the action is concerned,
properly have no other intended consequence (see R. v. Associated Northern
Collieries (1910) 11 CLR, at p 742 ). . . .
"In the latter case, that is in a case such as the present where the
proceedings are not for the recovery of a penalty, there is
no general rule
precluding the making of an order for discovery or interrogatories and there
will ordinarily be no proper ground
for objecting to an order for production
of documents or provision of information being made. The party against whom
such an order
is made is left to object to producing particular documents or
providing particular information on the ground that such production
or
provision may tend to expose him to a penalty (see Mayor of the County Borough
of Derby v. Derbyshire County Council (1897) AC,
at p 553 )" (1979) 42 FLR, at
pp 207-208 . (at p192)
36. If the State union is a body corporate within the meaning of s. 45D (6) and it is determined that, pursuant to the provisions of s. 45D (5), the State union is deemed to have contravened s. 45D (1) as a result of the conduct of the third and fourth respondents, then a pecuniary penalty not exceeding $250,000 could be imposed against it pursuant to the provisions of s. 76 (1). Subsection (2) of s. 76 provides: "Nothing in sub-section (1) authorizes the making of an order against a person not being a body corporate by reason that the person has contravened or attempted to contravene, or been involved in a contravention of, section 45D. . . ." (at p192)
37. Accordingly, if the second respondent is a body corporate neither the third nor the fourth respondent could be exposed to the imposition of a pecuniary penalty for any contravention or attempted contravention or being involved in a contravention of s. 45D which might be determined in the present proceedings to have been committed by either or both of them. (at p192)
38. On the other hand, in such circumstances, if the State union is not a body corporate within the meaning of s. 45D (6), a proceeding may be instituted in the court for the recovery of the pecuniary penalty referred to in s. 76 for an alleged breach of s. 45D by the union against an officer of the State union as a representative of the members of the union at the relevant time (see s. 45D (6) (c) (i) and s. 77). In such a case the provisions of s. 76 (2) of the Act do not apply (s. 45D (6) (c) (ii)) so that an order imposing such a pecuniary penalty could be made against such officer. The maximum penalty that could be imposed in those circumstances is $250,000 (s. 45D (6) (c) (iii)). Although such a proceeding can be instituted only against such officer, s. 45D (6) (c) (i) provides that such proceeding shall be deemed to be a proceeding against the third and fourth respondents as members of the union. (at p192)
39. Any judgment or order made in such proceeding may be enforced by process issued and executed against any property in which the State union has or any members thereof have in their capacity as such members a beneficial interest whether vested in trustees or however otherwise held, as if the State union were a body corporate and the absolute owner of the property or interest (s. 45D (6) (c) (v)). (at p192)
40. Accordingly, although no process for the enforcement of such a judgment
or order could be issued and executed directly against
any other property of
the third or fourth respondents, those respondents would, in such
circumstances, probably be interested in
the property against which execution
may be effected under s. 45D (6) (c) (v). In my view, a judgment or order in a
proceeding brought
under s. 77 in such circumstances could be said to operate
to effectively expose the third and fourth respondents to the possibility
of
the imposition of a pecuniary penalty so as to permit those respondents to
claim privilege against answering interrogatories which
may tend to expose
them to such penalty.
(ii) Possibility of criminal prosecution (at p193)41. The principles relating to such objection are well established and have been succinctly set out in Re Intercontinental Development Corporation Pty. Ltd. (1975) 1 ACLR 253 by Bowen C.J. in Equity, Supreme Court of New South Wales (as he then was): "Before turning to the particular questions, it is convenient to refer to the law relating to this head of privilege. . . . The question is as to when this objection may properly be taken. The position appears to be that a witness is entitled to refuse to answer a question on the ground that the answer may incriminate him, if the answer may tend to expose the witness, or the husband or wife of the witness, to a criminal charge or penalty or forfeiture. (see R. v. Boyes [1861] EngR 626; (1861) 1 B & S 311; 121 ER 730 ; Ex parte Reynolds (1882) 20 ChD 294 ; Lamb v. Munster (1882) 10 QBD 110 ; Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd (1939) 2 All ER 613 ; Mortimer v. Brown [1970] HCA 4; (1970) 122 CLR 493, at p 495 ; Re John Pringle & Co. Ltd. (1934) 34 SR (NSW) 508, at p 512 ; Ex parte P.; Re Hamilton (1957) 74 WN (NSW) 397, at p 399 ). The bare oath of the witness that he is endangered is not to be regarded as necessarily conclusive of the matter. It is for the court to consider from the circumstances of the case, and the nature of the evidence the witness is called upon to give, whether there is reasonable ground to apprehend danger of prosecution or forfeiture if the witness is compelled to answer. The danger must be real and appreciable, and not of an imaginary or insubstantial character. If there is a risk, the court does not generally go into the question of whether it is probable or not that proceedings will, in fact, be taken.
42. Mr. Toomey Q.C. who, with Mr. Douglas, appeared for the respondents submitted that, despite s. 78 of the Act, the third and fourth respondents were entitled to refuse to answer each of those interrogatories objected to on this ground of privilege if the answer thereto may tend to expose them to a criminal charge or penalty or forfeiture. (at p194)
43. Section 78 provides:
"Criminal proceedings do not lie against a person by reason only that the
person -
(a) has contravened a provision of Part IV;provision;
(b) has attempted to contravene such a provision;
(c) has aided, abetted, counselled or procured a person to contravene such a
44. Mr. Toomey submitted that the provisions of s. 45D do not require the applicant in a proceeding such as the present to prove that the conduct complained of was done with the intent of causing damage. All the applicant is required to prove is an intent to do an act. He need not prove an intent that damage would flow from that act (see Tillmanns Butcheries Pty. Ltd. v. Australasian Meat Industry Employees' Union [1979] FCA 84; (1979) 42 FLR 331 and Laidely's case [1980] FCA 25; (1980) 43 FLR 168 ). (at p194)
45. The interrogatories objected to on this particular ground were such that answers thereto may prove an intent to cause harm or damage and accordingly may tend to expose the two respondents to a criminal charge, namely common law conspiracy to do something contrary to law, or to do something wrongful or harmful to another person, or to use unlawful means in carrying out an object not otherwise unlawful (as to the nature of such offence, see generally. Watson and Purnell, Criminal Law in New South Wales, p. 383 par. 1151 and cases there cited). Such answers, it was claimed, would be beyond the protection given by s. 78 of the Act which applied only to acts which constituted a contravention of s. 45D. (at p194)
46. I am satisfied from the circumstances of the case and the nature of those particular interrogatories that the respondents are called upon to answer that there is reasonable ground for those respondents to apprehend danger of prosecution for common law conspiracy or of civil actions for pecuniary penalties. Accordingly, in my opinion, neither respondent is required to answer those interrogatories. (at p194)
47. Further, if a contrary view is taken regarding the danger to the third
and fourth respondents of prosecution for common law conspiracy
or of civil
actions for pecuniary penalties, I am of the opinion that those respondents
are entitled to claim that those questions
to which the claim of privilege has
been made are in fact oppressive within the meaning of that term in O. 16, r.
6 (3) (b).
GROUND OF OBJECTION (d) ABOVE (at p195)48. This objection reads "that the interrogatory seeks to question me as to my state of mind". In support of this ground Mr. Toomey relied on the decision in Service v. Coote (1891) 17 VR 40 . In reply Mr. McDevitt relied on the decision in Jordan v. Sanders (1934) SASR 424 . No reference was made to Service v. Coote in this latter decision. I understand the judgment of Webb J. in Service v. Coote has been followed both in the Equity Division of the New South Wales Supreme Court and in the Victorian Supreme Court for many years. In my view that decision should be followed. Accordingly in my opinion this ground of objection, where taken, has been validly taken. (at p195)
49. For the reasons set out above the notice of motion is dismissed with costs. (at p195)
ORDER
Orders accordingly.
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