Re Mudginberri Station Pty Limited v the Australasian Meat Industry Employees Union, Jack O'Toole, Trevor Surplice, Dick Annear, Pat Roughan, Meat Inspectors Association, Gordon Mccoll, Alex Thompson [1985] FCA 419; 12 IR 382 (13 November 1985)

FEDERAL COURT OF AUSTRALIA

Re: MUDGINBERRI STATION PTY. LIMITED
And: THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, JACK O'TOOLE, TREVOR
SURPLICE, DICK ANNEAR, PAT ROUGHAN, MEAT INSPECTORS ASSOCIATION, GORDON
McCOLL, ALEX THOMPSON
No. G123 of 1985
Trade Practices
12 IR 382

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
MORLING J.

CATCHWORDS

Trade Practices - hearing of claim for injunctive relief - deferral of hearing of claim for damages - decision on claim for injunction - statement in reasons that applicant's business affected by respondents' conduct - injunction granted - subsequent hearing of damages claim - whether statements made in reasons disqualify judge from further hearing claim - allegation of bias - duty of judge to continue hearing claim

HEARING

SYDNEY
13:11:1985

DECISION

When this matter was in my list on the 5 July 1985 the question arose whether I should proceed to hear the applicant's claim for permanent injunctive relief against the first five respondents separately from its claim for damages against those respondents and its claims for relief against the other respondents. After some discussion between the bar table and the bench, and at the request of the applicant, I agreed to hear the claim for permanent injunctive relief against the first five respondents separately from its claim for damages against those respondents. The applicant's claims against the other respondents were stood over and they have not subsequently been pursued.

2. Senior counsel then appearing for the first five respondents indicated that he did not object to the hearing of the claim for damages against his clients being separated from the hearing of the claim for permanent injunctive relief. He said: We would have no objection. We are apprehensive about what might happen in the future, but we really have no basic objection" (transcript p. 272.8). The apprehension to which he referred was clearly a reference to the apprehension which I had myself expressed on that day, and which is recorded in the transcript. The apprehension was that the undertaking of the hearing in stages could involve the parties in multiple hearings, and possible multiple appeals. It was not an apprehension that I would have any difficulty in deciding the case in two or more stages, or in being unable to keep an open mind on the question of damages if I first determined the applicant's claim for injunctive relief.

3. However, it must have been apparent to counsel at that time that in order to decide whether I should grant permanent injunctive relief I would have to turn my mind to the question of the balance of convenience, which would inevitably involve the consideration, in a very general way, of whether any conduct by the respondents in breach of sub-s.45D(1) was causing disruption of the applicant's business.

4. The claim for permanent injunctive relief came on for hearing in early July and on 12 July I made orders, inter alia, restraining the first five respondents from setting up or maintaining a picket line at or in the vicinity of the applicant's abattoir at Mudginberri.

5. During the course of the applicant's case for permanent injunctive relief Mr Pendarvis, the applicant's managing director, gave evidence. His evidence, and that of other witnesses called at the trial, was descriptive of the events leading up to the establishment of the picket line and the manner in which it had been maintained. Mr Pendarvis also gave some evidence of a general kind as to the effect that the picket line was having on the operations of the abattoir but I did not embark upon a hearing of the claim for damages.

6. Although counsel then appearing for the respondents made it clear that her clients' real defences to the applicant's claim were based upon sub-s.45D(3) of the Act, she did not concede, at the end of the evidence, that the applicant had established that her clients were acting in breach of sub-s.45D(1). Unfortunately the transcript of counsel's addresses was not transcribed and I do not have available to me a written record of Ms Simpson's submissions. But I have the clearest recollection, which is confirmed by Mr Cowdroy who was in Court at the time, that the respondents' then counsel did not concede that the applicant was entitled to permanent relief unless the respondents were able to bring their conduct within sub-s.45D(3). The fact that I deal in my judgment of 12 July with the question whether the applicant had made out a case that the respondents were engaging in conduct proscribed by sub-s.45D(1) confirms my recollection of what happened at the trial. My judgment, which was given on the day following counsel's addresses, would not have dealt with that matter if it had been conceded by the respondents. It is true that during the course of the evidence counsel for the respondents did indicate that she was not putting in issue what she described as "the factual matters in 45D(1)" (transcript p.398) but, in her argument at the end of the hearing she did not concede that the applicant had made out its case under sub-s.45D(1).

7. After an appeal against my decision of 12 July 1985 was dismissed by a Full Court, the matter again came into my list for the purpose of giving directions for the hearing of the claim for damages. I then raised with counsel the question whether the claim for damages could be heard by another judge, having regard to my difficulty in finding dates upon which I could myself hear the claim for damages. I raised the question whether I should regard myself as being part-heard in the proceedings generally and invited them to put any submission that some other judge should hear the claim for damages. No such submission was made, nor was any submission, or any suggestion, put to me that anything that I had said in my reasons of 12 July could be regarded as indicating that I might bring a biased mind to the question of damages.

8. The applicant's claim for damages has now proceeded for some days, both in Sydney and Darwin, and (subject to the respondents' right to cross-examine a number of witnesses) the applicant's case is virtually completed. At the directions hearings prior to the commencement of the hearing of the claim for damages, and during the hearing itself, I have on several occasions stated quite specifically that the applicant will have to prove every item in its claim for damages, otherwise it will fail in respect of that item. Moreover, in discussions between the bar and the bench, I have expressed the view that the facts, when established, may show that any loss suffered by the applicant is not the legal responsibility of, or frecoverable from, the respondents. Thus, at p. 1227 of the transcript, I refer to the allegation made by the applicant that Commonwealth meat inspectors had refused to certify meat for export and say that I could see what I described as a "large argument" that any loss which the applicant suffered could not "legally be attributed to what your client (i.e. the respondents) did." I have also expressed the view (transcript p.1139) that the applicant may not obtain an order for costs in respect of the hearing of its claim for damages. Obviously, it may not obtain an order for costs if it cannot establish that the respondents are liable for any damage which it may have sustained.

9. The matter having proceeded thus far, it is now asserted for the first time on behalf of the respondents that there are statements made in my judgment of 12 July which require me to disqualify myself from further hearing the claim for damages on the ground that those statements either indicate that I have a biased mind on the issue of damages or, at least, that the respondents might reasonably think that I have such a biased mind.

10. At p.3 of my judgment I stated that I found Mr Pendarvis to be a reliable witness. That statement was made, and could only have been made, in the light of the evidence that had then been given. I have already said that at that stage of the proceedings I did not embark upon any enquiry as to damages. It is true that Mr Pendarvis had given evidence about the general effect of the respondents' conduct on the operations of the abattoir, in the sense that he had described the picket line and had given a very general account of the effects which he claimed it had had on the production of meat for both the domestic and export market.

11. What I say on p.6 on the question of damages should not be read out of the context in which the question of damages arose at the hearing of the claim for injunctive relief. In Mr Pendarvis' evidence in chief he produced some schedules showing losses which he claimed he was sustaining at the abattoir. When the schedules were tendered by Mr Rofe Q.C., senior counsel then appearing for the applicant, the following exchange took place between Mr Rofe, Ms Simpson (the respondents' then counsel) and the bench:

"MISS SIMPSON: Your Honour, I do not object to it

so far as it is meant to establish a
susbstantial loss within section 45D(1). I
could not concede that this would be admissible
on the question of damages. Damages are still
in issue in this case, although not at this
stage. I would object to it if it were
tendered on the issue of damages, but I do not
object to it as establishing 45D(1) - - -

MR ROFE: I am tendering it purely on the issue of
substantial loss and damage.

HIS HONOUR: Very well. Exhibit D will be the
schedules prepared by the applicant of its
alleged losses, but I will note that this is
not tendered as evidence and is not admitted as
evidence of damages as such, should that issue
ever arise. I do not suppose I am concerned
with the detail of it, am I, Mr Rofe?

MR ROFE: No, your Honour. Unless there are any
particular matters that your Honour would like
me to clear up - - -

HIS HONOUR: No. That will be exhibit D."

(See transcript p.336)

12. Thereafter there does not appear to have been any cross examination of Mr Pendarvis on the schedules. (I note in passing that the questions which Ms Simpson asked on p.341 et seq. related to Exhibit C, and not Exhibit D). I refer to this part of the evidence merely to put in perspective what I say on p.6 of my reasons I do not think that a rational person could read the statements on p. 6 of my judgment as indicating that I had formed any view (final or preliminary) on the questions which now fall to be determined in the claim for damages.

13. Mr Pendarvis has now given a great deal of evidence in support of the applicant's claim for damages. He has not yet been cross-examined on that evidence. I do not believe that a reasonable person would infer from the remark that I found him to be a reliable witness in the claim for injunctive relief that I would bring a biased mind to a consideration of his evidence on the question of damages.

14. The question is not whether I am in fact biased, or whether there is a real likelihood that I might be biased. The question is rather whether it might reasonably be suspected by fair-minded persons that I might not resolve the question of damages with a fair and unprejudiced mind. See The Queen v Watson, ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 264; Livesey v New South Wales Bar Association (1983) 47 ALR 45 and The Queen v. Simpson, ex parte Morrison [1984] HCA 25; (1984) 154 CLR 101 at 104. However, as Gibbs C.J. points out in Simpson's Case, a court is not required to desist from hearing proceedings when somebody wrongly and irrationally suspects bias.

15. If I were of the opinion that a fair-minded and rational person might suspect that I might have a bias in favour of accepting Mr Pendarvis' evidence on any matter as to which there is a dispute on the question of damages, I would not hesitate to disqualify myself from further hearing the claim, notwithstanding the unfortunate consequences that may have for the parties. But I do not think that a fair minded or rational person could hold such a suspicion. My observ ations about Mr Pendarvis' evidence and credit were made against the background of the issues with which I was dealing in my reasons and in the light of the evidence that was then before the Court. Needless to say, I shall form my view as to the credibility of his evidence on the claim for damages when all the evidence on that issue is before me.

16. Having regard to the manner in which the applicant and the respondents have agreed that the proceedings should be conducted in two stages, any observations in my reasons of 12 July insofar as they might touch upon the question of damages are not unlike findings made at an interlocutory stage of injunction proceedings. They were not intended to be, nor can they reasonably be taken as being, firm conclusions on any matter which might arise for consideration on the claim for damages.

17. Counsel for the respondents also submitted that in the course of giving my reasons on 12 July I made statements as to losses being incurred by the applicant and that those state ments give rise to a reasonable suspicion that I am biased against his clients on the question of damages. Those statements appear in the first half of p. 6 of my reasons. I there said that the effect of the picket line was to shut down the applicant's export operations and that there was evidence, which I accepted, that the shut down had caused and was causing the applicant substantial losses. I also said that I accepted evidence that the transport of goods to the applicant's abattoir had been impeded because of the picket line and that the applicant had been able to carry on limited operations at the abattoir by producing meat for the domestic market but was "still suffering continuing loss and damage to its business".

18. In order to determine the claim for final injunctive relief it was, of course, necessary for me to decide whether, in the exercise of my discretion, I should make orders enjoining the respondents. A decision on that part of the case necessarily involved me, in a general way, in considering whether the applicant's operations at the abattoir were being adversely affected by the respondents' conduct. By agreeing that I should determine the claim for injunctive relief ahead of the claim for damages, the respondents must be taken to have accepted that I would have to consider the validity of the applicant's claim that its operations were being impeded, leaving for another day the question whether any particular damage had been sustained by it.

19. There were advantages to the respondent in taking that course. Interlocutory orders had already been made against the respondents and they were acting, at their peril, in contempt of those orders. It was therefore highly desirable, from their point of view, that I should determine as quickly as possible the question whether the interlocutory orders should be discharged. One way of achieving a speedy discharge of those orders was to join in the application to the Court that it should determine the question of final injunctive relief before it embarked upon what has proved to be a lengthy hearing on damages.

20. Just as my remark about Mr Pendarvis' reliability as a witness was made in the light of the evidence as it existed at 12 July, so the remarks I make on p.6 of my judgment must be read in the light of the evidence as it then existed and in the light of the fact that I was not then turning my mind to the quantification of any loss which the applicant may have suffered. I do not think those remarks would lead a reason able or rational person to suspect that I have a bias in favour of the applicant on any part of its claim for damages.

21. I cannot forbear from observing that the respondents have at all times been represented by competent counsel who, if I may say so, have conducted every aspect of their clients' case with skill and diligence. The applicant's claim for damages is now reaching its conclusion. The hearing will resume either in Darwin in the week commencing 2 December or in Sydney in the week commencing 9 December. I find it difficult to accept that, had the respondents entertained the suspicion which they now say they entertain, they would not have asked their counsel to voice it at a much earlier point in time. It is now several weeks since I granted the respondents the considerable indulgence of permitting them to hear the applicant's evidence in chief, and to defer cross examination of the applicant's witnesses and the calling of their own evidence until 9 December. At no stage, before to-day, have they indicated the slightest objection to me continuing to hear the claim for damages. In all the circumstances, I think it is my duty to continue to hear the claim and I propose to do so.