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Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Trade Practices - secondary boycott - interlocutory proceedings - whether interlocutory orders should be limited to restraining conduct engaged in for the purpose of causing substantial loss or damage.Trade Practices - Secondary boycott - Whether alleged conduct had hindered hiring of equipment or induced persons not to continue hiring equipment - Trade Practices Act 1974 (Cth), s. 45D(3).
Injunction - Interlocutory injunction - Balance of convenience - Whether
unjust to grant interlocutory injunctions - Whether injunction
should be in
absolute terms - Agreed course - Trade Practices Act 1974 (Cth), s. 80 -
Federal Court of Australia Act 1976 (Cth), s. 23.
On 27 January 1983, a single judge of the Federal Court of Australia made an
interim order (which was amended by another judge
of the court on 3 February
1983), restraining the four respondents until the hearing and determination of
the application or until
further order from
"preventing, hindering or impeding the access of any person, firm or
company toof any
the premises of or occupied by the applicants . . . and from preventing,
hindering
or impeding the applicants or any of them or any of the servants or agents
occupied by the applicants . . . except where such conduct was within thethe applicants sought two interlocutory injunctions against the respondents alleging contraventions of s. 45D(3) of the Act relating to secondary boycotts by the four respondents.
descriptions contained in s. 45D(3) of the Trade Practices Act 1974 (Cth)."
Pursuant to the provisions of s. 80 of the Trade Practices Act 1974 (Cth)
Held: (1) A strong prima facie case had been established against each of the four respondents as to each of the matters required to be shown including the fact that each of the respondents had engaged in conduct in contravention of s. 45D that the conduct had been engaged in by each for the purpose of causing substantial loss or damage to the business of each of the applicants and the conduct had had and was likely to have the effect of causing substantial loss or damage to the business of each of the applicants.
(2) The balance of convenience was in favour of granting the orders restraining each of the four respondents instead of withholding the grant of such relief.
Beecham Group Ltd v. Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618, applied.
(3) There were no considerations making it unjust to grant the two interlocutory injunctions sought by the applicants.
Per Keely J. - reasons summarised for rejecting the submission that the parties' agreed course made it unjust to grant the two interlocutories injunctions.
(4) The court had power to grant an interlocutory injunction without limiting it to conduct engaged in for the purpose of causing substantial loss or damage to the business of the applicant.
(5) It was desirable having regard to the material before the court and in the interests of justice that the injunction should be in absolute terms pending the hearing and determination of the matter.
Victorian Egg Marketing Board v. Parkwood Eggs Pty Ltd [1978] FCA 27; (1978) 20 ALR 129, applied.
Thomson Publications (Aust.) Pty Ltd v. Trade Practices Commission (1979) 27 ALR 551; Brisbane Gas Co. Ltd v. Hartogen Energy Ltd (1982) 260 FLR 343; Rifki v. Minister for Immigration and Ethnic Affairs (1983) 46 ALR 301, referred to.
HEARING
1983, February 21-24; February 25. 25:2:1983The applicants sought interlocutory injunctions pursuant to the provisions of s. 80 of the Trade Practices Act 1974 (Cth) alleging that the respondents had contravened the provisions of s. 45D(3) of the Act relating to secondary boycotts.
J.T. Fajgenbaum, for the appellants.
M.R. Hickey, for the respondents.
Cur. adv. vult.Solicitors for the applicants: Moules.
Solicitors for the respondents: Holding Redlich & Co.
J.D.W.
ORDER
1. Upon the applicants undertaking to the Court to pay any party adversely affected by this order such compensation (if any) as the Court thinks just, in such manner as the Court directs, that :-2. Costs be reserved.
3. Liberty to apply be reserved to all parties.
4. The date of hearing of the application for injunctions be fixed for Monday 11 April, 1983 at 10.15 a.m. in Melbourne.
5. As to that hearing of the claim for injunctions -(a) the applicants to serve and file by 3.00 p.m. on Friday 11 March, 1983 any further affidavits upon which they seek to rely;
6. These proceedings so far as they relate to the claim of damages be adjourned to a date to be fixed on the application of any party. Orders accordingly.
DECISION
This is an application in respect of conduct alleged to contravene s. 45D of the Trade Practices Act 1974, for interlocutory injunctions against the first, second, third and fourthnamed respondents whom I shall call the four respondents. An order binding upon those four respondents made by C.A. Sweeney J. on 27 January, 1983, as amended by an order made by Northrop J. on 3 February, 1983, was in the following terms :-The fifth respondent Robert Harry Dalton has not been served. No interlocutory orders are sought against him in the present hearing and he was not represented.
During the past four days the Court has heard oral evidence, including cross-examination, as to the existing and likely future loss or damage to the business of each of the three applicants. Counsel for the parties have referred to various parts of the 22 affidavits which have been filed in these proceedings on behalf of the applicants - of which 7 were filed on 25 January, 1983, 12 were filed last Friday (18 February, 1983) and the remaining 3 were filed on either Monday or Tuesday of this week. There has also been a fairly detailed examination by both counsel of the transcript of the proceedings before C.A. Sweeney J. on January 26 and 27, 1983 and before Northrop J. on 3 February, 1983. Having regard to the evidence before the Court it is desirable that the application be decided without waiting for the preparation of more detailed reasons.
The interlocutory injunctions sought in the present hearing are in the
following terms :-
The respondents and each of them be restrained pending the determination of
this matter or until further order from engaging in conduct
in concert with
each other or any of them or with other persons :-
(a) to hinder or prevent the hiring of equipment by the applicants or any of
them to any persons, companies or firms or the taking
on hire of equipment
from the applicants or any of them by any persons, companies or firms, being
conduct engaged in for the purpose,
or having or being likely to have the
effect, of causing substantial loss or damage to the businesses of the
applicants or any of
them or a substantial lessening of competition in the
market for the hire of equipment of a kind in the hire of which the applicants
or any of them are engaged, except where such conduct is within the
descriptions contained in s.45D(3) of the Trade Practices Act
1974;
(b) to induce procure or persuade any person company or firm to discontinue
any arrangement whereby that person, company or firm takes
on hire equipment
from the applicants or any of them, or not to enter into any such arrangement.
The Court has to decide whether the applicants have shown a prima facie case against each of the respondents and if so, whether the inconvenience or injury which the applicants would be likely to suffer, if the injunctions were refused, outweighs or is outweighed by the injury which the respondents would suffer if the injunctions were granted (Beecham's case [1968] HCA 1; (1968) 118 C.L.R. 618 at 622-623). In deciding whether interim injunctions should be granted, pending the final determination of the claim for injunctions, the Court must also consider whether other considerations make it unjust to grant the injunctios. In this connexion I shall refer later to the course which the parties on 3 February, 1983 agreed upon as to the future conduct of the litigation.
It is well established that in any interlocutory proceedings such as these, it is not desirable that the Court should form any concluded view as to the evidence on issues in dispute. Despite the arguments advanced by Miss Hickey, of counsel, on behalf of the four respondents, I consider that there is a prima facie case in the sense used by the Full High Court in Beecham's case. In my opinion a strong prima facie case has been established against each of the four respondents as to each of the matters required to be shown including the fact that each of the respondents has engaged in conduct in contravention of s.45D, that the conduct has been engaged in by each for the purpose of causing substantial loss or damage to the business of each of the applicants and that the conduct has had and is likely to have the effect of causing substantial loss or damage to the business of each of the applicants.
Having found that a prima facie case has been established, I have considered whether the injury which the applicants would be likely to suffer, if the injunctions were refused, outweighs any injury or inconvenience which the respondents would suffer if the injunctions were granted. Notwithstanding Miss Hickey's submissions to the contrary, relating to the possible effect of injunctions upon the employment of members of the respondent Federation and the question of safety which has been raised by the respondents, in my opinion the evidence in its present state does not disclose any real injury or inconvenience which any of the four respondents would be likely to suffer if interlocutory injunctions in the form sought by the applicants are granted. On the other hand there is at present before the Court evidence as to the injury and inconvenience to each of the applicant companies which will occur if the conduct alleged against the respondents continues. In my opinion the balance of convenience is quite plainly in favour of granting the orders restraining each of the four respondents instead of withholding the grant of such relief.
For the foregoing reasons the applicants have established a case for the grant of interlocutory injunctions unless there are other considerations which make it unjust to do so. I referred earlier to a course agreed between the parties on 3 February, 1983 when the matter had been stood down by Northrop J. to enable the parties to discuss dates for the filing of affidavits and for the hearing. In the present hearing I was initially inclined to the view that the applicants should not now be permitted to depart from that agreed course.
However, having studied the affidavits filed on behalf of the applicants,
heard the oral evidence, including cross-examination,
of witnesses in respect
of each of the three applicant companies and reflected upon the matter over
the last few days, I have come
to the conclusion that, despite my initial
inclination and the submissions to the same effect urged upon me by Miss
Hickey in final
address for the respondents, the proper course is to grant the
present application for interim injunctions. The reasons for my reaching
that
conclusion and rejecting the submission based upon the parties' "agreed
course" may be briefly summarized as follows:-
1. The course agreed upon on 3 February, 1983 is one which the applicants
entered into partly by reason of their fear that the proposed
hearing by
Northrop J. of their application for interlocutory injunctions would be
delayed by proceedings proposed to be taken by
the respondents in the High
Court for a Writ of Prohibition to prevent his Honour from sitting in the
matter. Mr. Merkel Q.C. on
behalf of the respondents had informed Northrop J.
(T. 178) that he had instructions to seek an order nisi for prohibition.
Further,
shortly before the discussion between the parties which led to the
agreed course, he had suggested a final hearing instead of a hearing
as to
interlocutory relief and then said (T. 184)
". . . but we would submit at the present time rather than having to take
issues with these questions that, for example, your
Honour ought to hear the
matter and whether we seek an order nisi. It may well be the matter can be
disposed of by agreement on that
basis."
2. In any event the course agreed upon on 3 February, 1983 permitted the
applicants to apply for further interlocutory injunctions.
This is apparent
from the order of Northrop J. of 3 February, 1983 which reserved "general
liberty to apply to the Court on 24 hours
notice" after Mr. Fajgenbaum (T.
188), on behalf of the applicants, announced to his Honour the agreed course
and expressly asked
"that liberty to apply be reserved not only in respect of
the directions but the interlocutory relief as well". Shortly before the
parties had the discussion which led to the "agreed course", Mr. Merkel Q.C.
made it clear that he understood that the applicants
could apply for further
interlocutory relief if the existing injunctions proved insufficient. He said
:-
"A further application could be made to the Court if the current material
is not sufficient, the current relief is insufficient
for the applicants, . .
. . . .
putting aside the question of applying for an order nisi, but we would
submit the appropriate course is for directions to be given
to enable this
matter to be finally disposed of within a very early period of time without
prejudice to the applicants' right to
come back before the Court on notice in
respect of any further or wider relief it seeks in the interim."
3. Evidence was given by Mr. Cooper, a solicitor employed by the solicitors
for the applicants, as to why the applicants' affidavits
were not prepared and
ready to be filed on 9 February, 1983 in accordance with the time table agreed
upon by the parties. He said
(T. 229-230) :-
". . . it became very apparent that it would not be possible to get a lot
of evidence in admissible form - being that with respect
to the bans - first
hand evidence from people who had spoken to officials of the Builders
Labourers' Federation. There was a decided
reluctance on the part of employees
of the applicants to even approach these people, because of what those
employees had already
been told previously. Although some people were prepared
to talk to employees of the applicants to explain the fact that bans had
been
imposed, they were not prepared to swear affidavits themselves. I was told, in
most cases, it was the fear of retaliation. That
problem certainly made it
apparent that it would be almost impossible to comply with what became the
timetable from what had been
discussed on the hearing of the 3rd, that the
evidence would need to be in admissible form. It was apparent that any
evidence which
could be collected before that date would probably not be
admissible.
. . . . that preparation continued throughout that time, despite those
problems and despite the knowledge of the applicants that
that may be the
case, they continued to prepare material on the assumption that we had to get
the best material available. At the
end of the day, and I use that
metaphorically, the material was largely hearsay."
And later he said (T. 240-241) :-
"My assessment was that it would be necessary to have three junior
barristers working under the supervision of Mr. Fajgenbaum
settling material
and that it would be necessary to have at least three solicitors working under
my supervision telephoning witnesses,
arranging to see witnesses, taking
statements and preparing draft affidavits and that those people would need to
be involved full
time from Friday until the following Wednesday to have the
material ready in admissible form.
. . . . . . . . . . . . . . . . . . . . .reasons, firstly the commitment of manpower and cost was not one that the applicants wished to incur, having regard to the possibility that there may be a resolution of the matter before the 9th. But furthermore, developments from Friday the 4th took up so much time and in many ways changed the emphasis of the dispute that it would not have been possible to have the material ready by Wednesday no matter how many people, sorry - it would not have been possible to have the evidence ready by Wednesday without at least that many people involved and I estimate more."
Why were they not so engaged, are you able to tell his Honour? A number of
There was also oral evidence by John G.W. Urbahns, the managing director of
the applicant Kwikform Industries Limited, that on Monday
last, 21 February,
1983, he had a conversation outside the Court with the respondent John
Cummins. His evidence (T.250) was as follows
:-
". . . I asked him was there any truth in the rumour I had heard that Norm
Gallagher was suing for peace, or asking for a peace
meeting with the other
unions. He laughed and said : quite to the contrary. . . . Norm was going to
make things twice as tough. The
words he used were: escalating the dispute."
Asked in re-examination whether he treated Mr. Cummins' statement as being
said in jocular fashion, Mr. Urbahns said: No . . . I sincerely
believe he is
going to do what he says he is going to do". There is evidence that Mr.
Gallagher is the General Secretary of the respondent
Federation and also
Branch Secretary for Victoria.
As to whether the conduct is likely to continue, and its purpose, an
affidavit by Desmond G. Whelan stated that the respondents
Cummins and Kent
visited him on 19 January, 1983 and that Mr. Cummins said : "Your company
should agree to our demands, or we will
put you under". In this connexion an
affidavit by Mr. Kelsey stated the the respondent Dalton, an organizer with
the respondent Federation,
said to him on 21 January, 1983, "Once the BLF gets
its back up, nothing stands in its way. The BLF will send Wreckair broke along
with Repco & Whelans". In this connexion the following paragraph from an
affidavit by Mr. Urbahns is noted :-
"7. As a result of the BLF action against Kwik Access, I invited BLF
officers to discuss the matter with me, and a meeting took
place on 18th
October 1982. The Victorian (and General) Secretary of the BLF, Mr. Norman
Gallagher, was present, as was his Assistant
Secretary Mr. Norman Wallace. I
was present with others representing the company. In the course of the
meeting, Gallagher said in
substance :
"We are talking to the Plumbers' Union. The use of scissor lifts by
sprinkler fitters is exempted from the bans. Otherwise, the
manning of scissor
lifts by Builders" Labourers is non-negotiable, and, while it might take 18
months to resolve like the Omega dispute,
you are now looking at the eventual
winners".
Gallagher also said in substance :Kwik Access supplies a builders' labourer with each unit. Unless you comply with this demand, we will ban Kwikstage scaffolding also"."
"No Kwik Access scissor lifts will be permitted on building sites unless
As to the foregoing affidavits there was no cross-examination of any of the deponents and the cross-examination of Mr. Urbahns did not suggest that the words allegedly spoken by Mr. Cummins had not been used. No evidentiary material has been placed before the Court by the respondents nor was any adjournment sought to enable them to do so. In saying that I am not criticising the respondents in any way or drawing any inferences from that fact. However the Court has to decide the present application - as it does any application for interlocutory injunctions - on the evidence before it and without the hearing becoming a mini-trial.
Accordingly there are no considerations making it unjust to grant the two injunctions sought. As to the form of the second injunction sought, I have rejected a submission by Miss Hickey that words should be inserted limiting the injunction so that it only restrains such conduct as has been engaged in for the purpose of causing substantial loss or damage to the businesses of the applicants. Miss Hickey submitted that the Court has no power to grant the interlocutory injunction sought without words limiting it by reference to conduct engaged in for that purpose. Alternatively it was argued that in all the circumstances the Court should not exercise the power.
In my opinion the Court has power and it is desirable that it should
exercise it having regard to the material before it in this
case. In this
connexion I adopt with respect as being equally applicable to the matter
presently before the Court, the following
statement by Brennan J. dealing with
s. 46 of the Trade Practices Act 1974, in Victorian Egg Marketing Board v
Parkwood Eggs Pty. Ltd. [1978] FCA 27; (1978) 20 A.L.R. 129 at 149-150 :-
"It is, of course, something of a novelty to determine the character of
conduct by reference to the purpose held by the person
who engages in the
conduct, and the enforcement of an injunction against conduct of the
proscribed kind is inevitably attended with
difficulty if a change of purpose
is asserted. The moulding of an injunction in such a case may conceivably be
in one of three forms:
an absolute prohibition against engaging in the
conduct, a prohibition qualified so as to apply only if the proscribed purpose
is
held by the party enjoined, or a prohibition qualified so as to apply
unless the party enjoined proves a change of purpose to one
that is innocent.
The moulding of the injunction is not made easier when it is remembered that a
usual effect of competition is damage
to a competitor, and a proscribed
purpose is that of substantially damaging a competitor.
In the present case, where a strong prima facie case of a proscribed
purpose was shown, the most convenient course is to mould
the injunction in
absolute terms until the difficult question of an appropriate form can be
resolved if need be at the final hearing,
leaving it to the enjoined party to
seek a dissolution of the injunction or a modification of it on proof that it
has changed its
purpose and that it proposes to engage in conduct which,
though falling within the injunction, will henceforth be lawful. . . .
and
no substantial injustice was shown to be likely to result to the Board by
granting an injunction in an unqualified form, particularly
when the
injunction was intended to be brought back for further and more leisurely
examination before the primary judge."
In the same case Bowen C.J. said (at 139-140) :-
"Counsel for the Board argued that such an injunction precluded the Board
from engaging in legitimate competition with Parkwood,
and that it was beyond
the jurisdiction of the court to grant an interim injunction that was not so
limited that it only precluded
conduct which would be in contravention of the
Act. It was said that the interim injunction should be limited so that the
conduct
described in the order would only be prohibited if it were engaged in
for one of the purposes set out in paras (a) to (c) of s. 46(1).
In World
Series Cricket Pty. Ltd. v Parish (1977) 16 A.L.R. 181 at 191-2; (1977) 2
T.P.C. 303 at 313-4, I said :-
". . . it is often undesirable to frame interlocutory orders in such a way
as to raise the very issue that will fall to be decided
at the hearing. If the
conduct is again called in question, it will usually not be possible to
determine, on a contempt application,
whether or not the interlocutory order
has been infringed: Australian Consolidated Press Ltd. v Morgan [1965] HCA 21; (1965) 112
C.L.R. 483; (1966) A.L.R. 387. By leaving that question to the final hearing,
there will be a failure to meet the need for urgent relief, and the party
enjoined
will, on the final hearing, be put at risk not only of a final
injunction but also of being in contempt. That is not a purpose which
an
interlocutory order is meant to serve."
If in this case the Board is restrained only from following a course of
conduct where its purpose is the eliminating or substantially
damaging of
Parkwood or deterring or preventing Parkwood from engaging in competitive
behaviour, the very difficulties arise which
I referred to in Parish's case.
In some cases, of which the tort of nuisance provides the most common example,
the court cannot help
but frame the interlocutory order in the terms in which
the final relief will be granted. Where that is so, the difficulties in
determining
whether the injunction has been contravened will not stay the
court's hand. Where however it is possible to specify the course of
conduct
which is shown to be prima facie in contravention of the law, it is better to
proscribe that conduct. It is no objection,
at least to a court not exercising
statutory jurisdiction, which might in this regard be expressly limited, that
the court for a
short period restrains a person from doing that which he is
lawfully entitled to do: Hubbard v Pitt (1976) 1 Q.B. 142 at 190. In my
opinion if the order is one which the court has jurisdiction to make under s.
80, I consider it proper that it be in
the absolute form in which it is,
notwithstanding that until the hearing or further order the Board may be
restricted from engaging
in legitimate competition. In the absence of a
qualification to the order that does not raise the issues to be determined at
the
trial, such a proscription is the lesser evil. I would only add that the
possibility of a party applying for a variation of the order
if its operation
proves to be unexpectedly harsh is a proper matter for the learned trial judge
to have had in mind when framing
the order."
After referring to the terms of various sub-sections in s.80, Bowen C.J. said
(at 141) :-
"But that does not mean that the principles which would guide a court of
general jurisdiction in formulating the terms of its
injunction are not
applicable to the exercise of jurisdiction under s.80(2). A grant of
jurisdiction to make interim injunctions
to restrain conduct that contravenes
or would contravene Pts IV or V, contemplates that the court will satisfy
itself that the person
being restrained has engaged or has threatened to
engage in such conduct. Having determined that issue, the manner in which the
court
will proscribe the conduct depends on principles drawn from the general
law, except as modified by the succeeding sub-sections. In
my opinion it is
inherent in the grant of power to make interim injunctions that the court can
do such things as are necessary to
make that relief most effective, except
where some limitation is expressly imposed, or where what the court seeks to
do is not injunctive
relief at all."
That decision has been referred to in the later cases. In Thomson
Publications (Aust) Pty Ltd v Trade Practices Commission and others
(1979) 27
A.L.R. 551 at 570 Deane and Fisher JJ. said :-
"In our view, the clear inference to be drawn from the provisions of s.80
of the Act is that the power of the court to grant final
injunctive relief in
respect of an actual or threatened breach of the provisions of Pt IV of the
Act was intended by the Parliament
to be restricted to the enjoining of
conduct of the kind referred to in s.80(1) of the Act and not to extend to the
enjoining of
conduct not encompassed by the kinds of conduct specified in that
sub-section. This conclusion does not mean that a final injunction
under s.80
must refer to kinds of conduct as distinct from specific conduct. What it
means is that the conduct enjoined, preferably
by precise description, must
come within one or more of the kinds of conduct which s.80(1) mentions. Nor
does this conclusion necessarily
apply to the power to grant interim
injunctions for which specific provision is made in s.80(2) of the Act and in
respect of which
particular considerations may apply (see Victorian Egg
Marketing Board v Parkwood Eggs Pty Ltd [1978] FCA 27; (1978) 20 A.L.R. 129 at 140)."
Although the Full High Court allowed an appeal from that decision, the reasons
for judgment of Gibbs C.J., Stephen, Mason and Wilson
JJ. contained the
following passage [1981] HCA 48; (1981) 37 A.L.R. 66 at 76 :-
"No doubt the Federal Court has power to accept an undertaking at an
interlocutory stage when the undertaking is reasonably related
to the orderly
procedure of the court or to the subject matter of the litigation, as Deane
and Fisher JJ observed, even though it
is not in a form which falls within
s.80."
In my opinion that High Court decision is not inconsistent with the opinions
expressed by Bowen C.J. and Brennan J. in the Victorian
Egg Marketing Board
case (supra). In Brisbane Gas Co. Ltd. v Hartogen Energy Ltd. and another
(1982) 42 A.L.R. 685 at 688 Fitzgerald J. referred to the passage which I have
just quoted from the High Court decision and said :-
"I am satisfied that the court also has power in a case such as the
present to grant an interlocutory injunction which is reasonably
related to
the orderly procedure of the court or the subject matter of the litigation,
even though it is not in a form which falls
within s.80 of the Act."
In Rifki v Minister for Immigration (unreported - 3 February, 1983) Toohey J.
said that he followed the view of Fitzgerald J. that
:-
"nothing said in Thomson's case limited the power of the Federal Court to
grant an interloctory injunction pursuant to s.23" (of
the Federal Court Act).
In my opinion it is desirable in the interests of justice that the injunction should be "in absolute terms until the difficult question of an appropriate form can be resolved if need be at the final hearing, leaving it to the enjoined party to seek a dissolution of the injunction or a modification of it on proof that it has changed its purpose and that it proposes to engage in conduct which, though falling within the injunction, will henceforth be lawful". The restraint imposed by an interlocutory injunction is of course only pending the hearing and determination of the matter. In addition all parties will be given liberty to apply. It follows that any respondent desirous of engaging in conduct which does not breach the Trade Practices Act but which might subsequently be held to constitute a breach of the proposed injunctions may apply to the Court for whatever order is necessary and desirable in the circumstances to ensure that the injunction does not have the effect of prohibiting such conduct.
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