Re Jewel Food Stores Pty Limited v Amalgamated Milk Vendors Association Inc and Others [1989] FCA 479; 91 ALR 397 24 FCR 127 (23 November 1989)

FEDERAL COURT OF AUSTRALIA

Re: JEWEL FOOD STORES PTY LIMITED
And: AMALGAMATED MILK VENDORS ASSOCIATION INC and OTHERS
No. N G119 of 1989
FED No. 796
Trade Practices
(1990) ATPR para 40-997
[1989] FCA 479; 91 ALR 397
24 FCR 127

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard(1), Wilcox(1), and Spender(2) JJ.

CATCHWORDS

Trade Practices - Secondary Boycott - Purchase by appellant of Victorian milk for sale in its New South Wales stores - Refusal by New South Wales milk vendors to supply appellant's stores with New South Wales milk - Alleged contravention of s.45D of Trade Practices Act that conduct of respondents prevented or hindered the acquisition by customers of milk from appellant - Whether a prevention or hinderance of acquisition fell within section if there was also a prevention or hinderance of supply - Nature of requisite purpose.

Trade Practices Act 1974 s.45D

HEARING

SYDNEY
23:11:1989

Counsel for the Appellant: Mr F M Douglas QC with Mrs S R W Emmett

Solicitors for the Appellant: Hunt & Hunt

Counsel for the Respondents: Mr D G Williamson QC with

Mr M J R Huntington

Solicitors for the Respondents: Sly & Weigall

ORDER

The appellant bring in Short Minutes of an order on a day to be fixed by the Court.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. (See also Order 37 rule 2(3).)

DECISION

This appeal raises a question of the construction of s.45D of the Trade Practices Act 1974 ("the Act"). A number of the provisions of that section were relied upon at first instance but, before us, the appellant, who was the unsuccessful applicant before the primary Judge, has relied on only one, s.45D(1)(b). The paragraph is as follows:-

"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 (not being an employer of the
first-mentioned person), or the acquisition of
goods or services by a third person from a fourth
person (not being an employer of the
first-mentioned person), where--
(a) ...
(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--
(i) substantial loss or damage to the
business of the fourth person or of
a body corporate that is related to
that person; or
(ii) a substantial lessening of
competition in any market in which
the fourth person or a body
corporate that is related to that
person supplies or acquires goods or
services."

2. It is to be observed that the section prohibits conduct which hinders or prevents the supply of goods or services by a third person to a fourth person and conduct which hinders or prevents the acquisition of goods or services by a third person from a fourth person. The appellant relies on so much of the paragraph as relates to conduct that hinders or prevents the acquisition of goods as distinct from the supply of goods.

3. The facts of the matter are in short compass and were not in dispute before us. The findings made about them were not challenged by either of the parties. The account that we are about to give comes substantially from the primary Judge's reasons for judgment.

4. For a number of years a dispute has been smouldering in relation to the supply of Victorian milk to retail outlets in New South Wales. The appellant conducts a chain of supermarkets. It obtained supplies of Victorian milk, which was cheaper than New South Wales milk, and wished to continue to sell both Victorian and New South Wales milk. To this end it entered into an agreement dated 14 June 1985 with a company, Midland Milk Pty Limited, which was a Victorian milk supplier. Another party to the agreement was Davids Holdings Pty Limited which was described as a distribution agent. Under the agreement, as subsequently varied, the appellant did not buy the milk, but retailed it as an agent for Midland Milk Pty Limited at a commission of 10.25 cents per litre.

5. The respondents to the appeal are an association known as Amalgamated Milk Vendors Association Inc, which is incorporated under the Associations Incorporation Act 1984 (NSW), and a number of milk vendors who were described in the application as the Sixth Respondents. On 5 August 1987, a meeting of the councillors of the Association was held. The councillors felt strongly that the supply of Victorian milk to the supermarkets operated by the appellant posed a serious threat to their businesses and to the businesses of other milk vendors.

6. As his Honour said, the background to this dispute is the complicated structure which has been built up within the dairy industry within Australia. One of those complexities is the attempt to divide the industry into compartments at State boundaries, so far as concerns its impact upon "whole milk", ie milk supplied for human consumption as such, to be distinguished from "manufacturing milk", the balance of milk produced by dairy farmers. A consequence of the system was that the appellant was able to purchase Victorian milk at a price well below that paid for New South Wales milk. His Honour said:

"In the highly regulated milk industry, the
sale of Victorian milk through Jewel stores
(as I shall call the applicant's supermarkets)
has an immediate impact on individual milk
vendors in New South Wales. For, by virtue of
a system of licensing, each store purchases
its New South Wales milk from a particular
vendor at a controlled price. That vendor
operates only in a defined area, so that if a
large quantity of other milk comes into that
area through its Jewel store, the vendor's
gross receipts must diminish while many of his
overheads will remain the same."

7. At the meeting held on 5 August 1987 a number of councillors made clear their views that supply of New South Wales milk to the appellant's supermarkets should be terminated while those stores continued to sell Victorian milk. His Honour said that it must have been obvious that action of that kind could only be effective if it was concerted, but, if it were concerted, it could have a severe impact upon the appellant, both because some of the appellant's customers would be likely to prefer to continue to buy New South Wales milk, and also because the appellant could not obtain enough Victorian milk to meet all its requirements. His Honour said that, if a supermarket could not supply the milk a customer wished to purchase, the possibility that it would lose the customer altogether, or for a period, though difficult to translate precisely into figures, must be added to the lost sales of milk, when considering the impact upon each of the stores.

8. His Honour found that the councillors present at the meeting were unanimously in favour of a concerted termination by milk vendors of the supply of New South Wales milk to the appellant's supermarkets. He said that that unanimity was not translated into a resolution only because of a warning by one of the councillors that the Association could not be involved, nor could it support, any industrial action, pickets, bans or the like, as this would be contrary to the Act. But it was said at the meeting that, if individuals of their own volition decided that they wanted "to do things", they could do so, but the Association could not support them.

9. His Honour went on to analyse the evidence of the conduct in which milk vendors then proceeded to engage. In the result milk supplies were denied to a number of the appellant's supermarkets by milk vendors during the week of 3 August 1987. Delivery of New South Wales milk stopped entirely between 6 August and 13 August 1987 to all the appellant's supermarkets other than those at Wagga and Queanbeyan. Supplies resumed only after the making of an interlocutory application for injunction which was made at the time of the institution of the proceedings.

10. As mentioned, the milk vendors in question were named as the Sixth Respondents to the application and are the Sixth Respondents to this appeal. Subject to a submission based on purpose with which we shall later deal, there was no issue before us concerning the question whether the milk vendors who denied supply to the appellant's supermarkets were acting in concert. His Honour's task and our task in this respect have been aided by admissions made by the Sixth Respondents and also by the Association which became the seventh respondent to the application. The admissions were expressed as follows:

"In the event that any one or more of the Sixth
Respondents, for whom Sly & Russell act, is
found to have engaged in conduct that would,
if it had been engaged in in concert with a
second person, have been in breach of Section
45D of the Trade Practices Act, each such
Sixth Respondent admits that such conduct was
engaged in in concert with the Seventh
Respondent and all of the Sixth Respondents
for whom Sly & Russell act will, without
further admissions, give undertakings to the
Court, in such form as the Court considers
appropriate, to refrain, by themselves, their
servants and agents, from engaging in conduct
that would constitute a further breach of
Section 45D of the Trade Practices Act.
The Seventh Respondent admits that it acted in
concert with such Sixth Respondents (if any)
as is or are found to have engaged in conduct
that would, if it had been engaged in in
concert with a second person, have been in
breach of section 45D of the Trade Practices
Act."

11. The case was put to his Honour in a number of ways all of which he rejected. It has been put to us, as we have earlier said, in only one way. It is based entirely on so much of s.45D(1)(b) of the Act as proscribes the hindering or preventing of the acquisition (not supply) of goods by a third person from a fourth person where the fourth person is a corporation. His Honour rejected the appellant's case based upon that provision in the following passage from his judgment:

"To treat the actions of the milk vendors as
conduct that hindered or prevented the
acquisition of milk by customers of Jewel
stores is to look beyond the direct effect of
those actions upon supply to the stores, and
to take account of an indirect or ultimate
effect upon the availability of milk to the
customers of the stores. Counsel for the
respondents submits that the section should be
construed as concerned with direct effects,
rather than indirect effects. He points out
that Parliament, in enacting the Trade
Practices Act, has repeatedly distinguished
between direct and indirect effects. Where it
has thought fit, it has provided by reference
to both: see ss. 47(2), (3), (6), (7), (8),
(9) and (13), 50(1) and (1A). There is force
in this submission. But to my mind, there is
even greater force in the further
consideration that s.45D(1) deals separately
with supply of goods or services to a 'fourth
person' and acquisition of goods or services
from a 'fourth person'. It would be
inconsistent with the structure and evident
intent of the provision to treat an
interference with supply to the applicant, not
under that part of the provision which deals
with supply to it, but as an indirect
interference with acquisition from it. But it
would be quite anomalous if such an approach
could lead to liability for the indirect
effect in a case (such as the present) where
the terms of the legislation exclude liability
for the direct effect. In my opinion,
s.45D(1) contemplates two levels of activity,
supply to a corporation of its requirements,
and supply by it to its customers; and the
subsection makes separate provision for
interference by a secondary boycott at each of
those levels. In neither case, does that
provision extend to indirect consequences at
the other level."

12. Counsel for the appellant submitted that the case fell squarely within the provisions of the paragraph upon which it relied. Counsel for the respondent submitted:

(a) his Honour's reasons and conclusion were
correct;
(b) although the only express reference in
the paragraph to purpose was in the
phrase, "engaged in for the purpose ...
of causing substantial loss or damage to
the business of the fourth person (ie the
appellant)", a breach of the paragraph
would not be established unless it were
shown that the purpose was damage to the
appellant's business; the dominant
purpose was not damage to the appellant's
business but the protection of the milk
vendors' own businesses;
(c) there was no evidence, or no sufficient
evidence, to establish that the actions
of the respondents would have, or would
have been likely to have, the effect of
causing substantial loss or damage to the
appellant's business.

13. We find it convenient to set out the terms of the relevant paragraph upon which the appellant relies comprehensively. In other words, what follows consists only of the elements of the paragraph upon which the appellant relies. Those elements are as follows:

"A person shall not, in concert with a second
person, engage in conduct that hinders or
prevents the acquisition of goods by a third
person from a fourth person where 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
substantial loss or damage to the business of
the fourth person."

14. In the appellant's submission each milk vendor is a "first person" within the meaning of the paragraph, each other milk vendor and the Association is a "second person", the customers of the appellant's supermarkets are "third persons" and the appellant is the "fourth person".

15. His Honour found that the appellant could not succeed on this basis because he thought that it would be inconsistent with the structure and evident intent of the paragraph to treat an interference with supply to a person, not under that part of the paragraph which deals with supply to it, but as an indirect interference with acquisition from it. He concluded that it would be anomalous if there could be liability for the indirect effect in a case such as the present where the terms of the legislation excluded liability for the direct effect.

16. In support of their submissions that his Honour's conclusion should not be disturbed, counsel for the respondents made some general submissions about the nature and purpose of s.45D of the Act. They emphasised that the section was one dealing with secondary boycotts. They contrasted its provisions with those of s.45A of the Act and the definition in s.4D thereof of the expression "exclusionary provision". It is unnecessary to refer to the detail of the definition, but it is true, as counsel submitted, that it deals with a primary, as distinct from a secondary, boycott. In the course of their argument counsel mentioned that the appellant might have been able to rely upon s.45A and s.4D but for the fact that none of the milk vendors was in competition with any other. That is because of the regulated system which exists in New South Wales for the control of the retail sale of milk.

17. Counsel for the appellant submitted that the words of the paragraph upon which the appellant relied should be given their plain and ordinary meaning and that, subject to the remaining arguments upon which the respondents relied, the case fell within them. They submitted that the plain and unambiguous meaning of the words should not be displaced by a consideration of the heading to the section which is, "Secondary Boycotts". They also said that the respondents' conduct did constitute "a collective secondary boycott" because it hindered or prevented the acquisition of milk by the appellant's customers and thus restricted their dealings with the appellant.

18. We agree with the submissions made by counsel for the appellant. In our opinion the paragraph contains two separate and distinct provisions, one dealing with supply to a corporation such as the appellant and the other dealing with the acquisition by persons of goods or services from such a corporation. The question whether particular conduct constitutes a contravention of either of these provisions should be determined as a matter of construction, without making any judgment as to whether the result is desirable or undesirable in policy terms. The fact that a particular case may not be covered by one part of the paragraph is no reason to deny relief if it is in terms covered by another part of it. We can see no reason why the express words of the paragraph should be given the limited or qualified meaning for which the respondents contend. Furthermore, if it matters, the evidence did establish that there was a secondary boycott. Certainly, the denial of supply to the appellant constituted a primary boycott. But that denial had the consequence of supply in turn being denied to the appellant's customers. Either they went without New South Wales milk or they were forced to obtain supplies of it elsewhere.

19. In the submission of counsel for the respondents, an approach in accordance with that adopted in the last paragraph is erroneous because it fails to give sufficient effect to the ambit of the expression "in concert". In counsel's submission that expression has inherent in it an element of purpose in the sense that persons acting in concert necessarily do so to achieve a common purpose. In this case the primary purpose of the milk vendors was to protect their own businesses. That purpose was to be achieved by denying the appellant supplies of milk. For the purposes of the submission, counsel conceded that that might in consequence involve the respondents having also the purpose of injuring the appellant's business. But, so they submitted, on no basis did the evidence establish that their purpose was to harm or injure the appellant's customers. Effectively, so it was submitted, that is what must be found against them before the paragraph will apply to this case which depends upon the prevention or hindering of the acquisition of goods rather than the prevention or hindering of their supply.

20. In essence, counsel's submission was that, if A is in dispute with B and does something which A knows must damage B, the fact that A damages C as a consequence of damaging B is irrelevant. It is A's motive or purpose in damaging B which is the only relevant motive or purpose.

21. We think that the submission should be rejected because it fails to apply the plain words of the paragraph. The respondents did in concert engage in conduct that hindered or prevented the acquisition of goods, namely, milk, by the appellant's retail customers from the appellant. That is the only objective fact to which the paragraph at that point refers. Purpose does not at that stage come into the matter. It does become critical eventually because the paragraph will not apply unless the conduct in which the respondents have engaged was engaged in for the purpose of causing substantial loss and damage to the appellant's business. But that is a separate question to which the later submissions made by counsel for the respondents are directed.

22. It is perhaps unnecessary to add that one would not lightly read into an expression, such as "in concert", a requirement that an applicant for relief must establish some particular purpose of the respondents, in this case, harm to the appellant's customers, before the provision will apply, when the section itself, in a number of other contexts, expressly requires proof of purposes of various kinds. If the legislature had intended the meaning of the expression "in concert" to be affected by considerations such as are relied upon by counsel for the respondents, one would have expected it to use appropriate words to make its intention clear.

23. In reaching the conclusion that the conduct of the respondents was conduct that hindered or prevented the acquisition of goods by the appellant's customers from the appellant we do not overlook the necessity to identify the relevant goods. But we do not see the necessity to go further than to identify those goods as "milk" (or, perhaps, "pasteurised milk"). The evidence does not establish that the denial of New South Wales milk by the respondents to the appellant had the effect of preventing the appellant supplying milk to its customers. The appellant had access to some Victorian milk, although not enough to enable it to supply normal requirements of its customers. For all that we know it may have been possible for the appellant to obtain the balance of its needs from elsewhere; perhaps from some other State or New Zealand. But, whether or not there was such a possibility, there is no doubt that the respondents' conduct hindered the appellant supplying its customers, and, consequently, hindered the customers in acquiring milk from the appellant. That is enough to bring the case within the opening words of s.45D(1).

24. We turn to the submission that the dominant purpose of the respondents was not to damage the appellant's business but to protect the milk vendors' own businesses. It is to be observed that the phrase "dominant purpose" is not used in para.(1)(b) of the section. It is to be found in subsec.(3), but subsec.(3) has no application to the circumstances of the present case. In our opinion the submission is answered by reference to s.4F(b) of the Act, which reads as follows:

"4F. For the purposes of this Act--
(a) ...
(b) a person shall be deemed to have engaged
or to engage in conduct for a particular
purpose or a particular reason if--
(i) the person engaged or engages in the
conduct for purposes that included
or include that purpose or for
reasons that included or include
that reason, as the case may be;
and
(ii) that purpose or reason was or is a
substantial purpose or reason."

25. Consequently, not only is it not necessary for the appellant to show that damage to its business was the dominant purpose of the respondents; it does not matter that it appears that the respondents had some other purpose, such as the protection of their own business interests. The only relevant question is whether, despite the existence of that purpose, the respondents had, as a substantial purpose, the infliction of damage upon the business of the appellant.

26. As we see the case, there can be no doubt that the respondents possessed such a purpose. It is true that this purpose was an immediate purpose rather than an ultimate purpose, but it is too late in the day to contend, at least in this Court, that the only type of purpose which may satisfy a description in s.45D(1)(b) is an ultimate purpose. The point was made in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 84; (1979) 27 ALR 367. In that case Bowen CJ, with whom Evatt J agreed, dealt with duality of purpose in this way, at p 374:

"Nevertheless, the fact that a union and its
members acting together have a union purpose
does not necessarily exclude the possibility
that they had, also, the purpose of causing
substantial loss or damage to the business of
a corporation. The statement of Evatt J in
McKernan v Fraser [1931] HCA 54; (1931) 46 CLR 343 is
apposite. His Honour in that case (at 403)
said: 'Sir Godfrey Lushington said, in
special reference to combined action against
employers or non-unionists on the part of
unionists, that to ask the question whether
they act to defend their own trade interests
or to injure their economic adversary for the
time being is equivalent to asking of a
soldier, who shoots to kill in battle, whether
he does so for the purpose of injuring his
enemy or of defending his country. The
analogy is sound because combined strike
action is usually undertaken for the purpose
both of causing harm to the employers and for
the improvement or maintenance of the
standards of unionists'."

Similarly, at p 385, Deane J said:

"In the absence of any suggestion of a dominant
purpose of the type described in s.45D(3), it
suffices, in view of the provisions of
s.45D(2), that the purpose of causing
substantial loss or damage to the appellant's
business was a purpose, whether dominant or
subsidiary, of the respondents in engaging in
the relevant conduct."

27. The Full Court returned to the same question in the following year, in Transport Workers Union of Australia v Leon Laidely Pty Ltd (1980) 28 ALR 589. At p 594 Bowen CJ referred to the evidence on behalf of the respondent unions that the "sole purpose of the conduct of which complaint is made is to protect the employment of the workers of Amoco who are members of the Transport Workers Union". He commented:

"While it is understandable that the ultimate
purpose of the respondents, in taking the
action which they did, was to protect the
employment, the other evidence would support
an inference that their means of achieving
their object and, therefore, their immediate
purpose, was to cause Amoco to cease supply to
Leon Laidely. When Amoco did cease supply,
the men returned to work. It was common
ground that the respondents would have
appreciated that their action in causing Amoco
to cease supply to Leon Laidely would cause
substantial loss or damage to Leon Laidely.
However, it is pointed out that the purpose
referred to in s.45D(1) is the subjective
purpose of those who are engaging in the
conduct. It remains, therefore, to consider
whether the purpose of causing loss or damage
could be inferred to be one of their purposes.
Conduct may fall within s.45D(1) if it is one
of the purposes, even if it is not the
dominant purpose, of persons acting in concert
(s.45D(2)). The respondents could have called
out the drivers of Leon Laidely who were
Transport Workers Union members. They chose
to call out the Amoco drivers until Amoco
ceased the supply to Leon Laidely. There was
no evidence that they had any malice towards
Leon Laidely. But their purpose of causing
cessation of supply must, if carried out,
immediately cause the loss or damage in question."

See also per Deane J at p 601.

28. The approach indicated in these cases has been expressly adopted by other members of the Court: see for example, per Lockhart J in Industrial Enterprises Limited v Federated Storemen and Packers' Union of Australia (1979) 2 ATPR 40-100 and per Smithers J in Wribass Limited v Swallow [1979] FCA 3; (1979) 38 FLR 92 at p 102. It has been implicitly adopted in numerous other cases. Conduct falling within the opening words of s.45D will rarely be adopted out of disinterested malice. Ordinarily, the purpose of inflicting damage upon the business of a person is to cause that person to modify its behaviour in some way for the advantage of the person occasioning the damage, or its members. In other words, the damage is a means to an end. Consequently, although a primary purpose of the milk vendors was to protect their own businesses, another purpose which they had was to damage or injure the appellant's business. That was the means by which they intended to achieve their primary purpose. Upon the view of s.45D(1) long accepted in this Court, that is enough.

29. That leaves the submission that there was no evidence or no sufficient evidence to establish that the respondents' actions caused, or would have been likely to have caused, substantial loss or damage to the appellant's business. In our opinion, that submission should be rejected. The appellant conducts a chain of supermarkets. Milk is one of the products which it sells. Customers who cannot obtain milk from a supermarket are likely to go elsewhere. Once they do, the result is likely to be, not only lost sales of milk, but lost sales of other products as well, all this leading to a likely reduction in turnover and profits.

30. In the result we would allow the appeal with costs. The form of the order which should be substituted for the order made by his Honour needs to be precisely formulated and we would propose that the matter be adjourned so as to enable counsel, on a day convenient to the Court and the parties, to bring in short minutes of order.

I regret to say that I do not share the opinion of Sheppard and Wilcox JJ. on the application of the provisions of s 45D of the Trade Practices Act 1974 to the facts as found by the learned primary judge.

2. In particular, I disagree that one can permissibly apply s 45D of the Trade Practices Act 1974 so that a primary boycott of a corporation by its suppliers is a secondary boycott by those suppliers of the customers of the corporation.

3. A direct interference with supply to a corporation almost inevitably affects the capacity of a corporation to supply its product to its customers. In my opinion, such a direct interference with supply to a corporation is not an interference with the supply by a corporation to its customers.

4. Section 45D of the Trade Practices Act 1974 has been a contentious provision and its intrinsic worth has been doubted: "Secondary Boycotts Under Attack: the Australian Experience" by Breen Creighton (1981) 44 Modern Law Review 489, particularly at 495-7. Two aspects in particular have created difficulties in the operation of the section.

5. The first of these is the drafting, in particular, the quadripartite structure of s 45D(1). In practice this has meant that, rather like a cryptic crossword, one has to sit down pen in hand and attempt to work out the various permutations and combinations of first, second, third and fourth persons in any particular factual circumstances. This case provides a graphic example of the consequences of that technique of drafting. The original application postulated five bases on which it was said that the milk vendors and the Association were in breach of s 45D. At the hearing before the learned primary judge, three of these bases were relied on. On the appeal, only one is relied on. In respect of the same manner of drafting in s 45D(1A), a Full Court of the Federal Court in Epitoma Pty. Ltd. v. A.M.I.E.U. [1984] FCA 202; (1984) 3 FCR 55, in respect to a submission that the style of drafting gave rise to the possibility of capricious and irrational results, held that, at the least, there was a serious question to be tried as to whether a literal construction, leading to such results, should prevail. The Court said at 60:-

"The respondents' second basis for challenging his
Honour's finding of a prima facie case under s
45D(1A) raises a question of construction. The
argument seeks to avoid the literal meaning of s
45D(1A) by resort to a 'purposive' construction.
In essence, the respondents fasten upon the
excepted relationship specified in the provision
'...a third person (not being an employer of that
first-mentioned person)...' as an indication that
the section is aimed at what are, in truth,
secondary boycotts; thus, the argument runs, if
the appellant were right, depending upon who is
selected, however arbitrarily, as the first and
second persons in s 45D(A1), it would be possible
to rotate personalities in a way which would avoid
the intended operation of the provision. In
short, the respondents say that a nonsensical
result would occur if the section meant that if,
on the one hand, A conspires with B, there would
be no contravention, whereas on the other, if B
conspires with A, a contravention would be
in Cooper Brookes (Woollongong Pty. Ltd. v.
Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR
297 at 320-321 to support the contention that a
literal construction of a statute will be departed
from if the result would be capricious and irrational.
Accepting, as we do, the decision and the
reasoning in Cooper Brookes' case we are not
persuaded that the construction contended for by
the appellant is capricious and irrational, quite
apart from the impact of s 45D(6). At all
events, it is both unnecessary and inappropriate
that we express any concluded view on this
question in an interlocutory appeal. Once it is
conceded that it was, at the very least, arguable
that a literal construction should prevail it
inevitably follows that there is a serious
question to be tried on this issue. To borrow the
language of Lord Diplock in Dimbleby's case
(Dimbleby & Sons Ltd. v. National Union of
Journalists (1984) 1 WLR 427), it is 'no part
of the court's function on an application for an
interlocutory injunction to decide difficult
questions of law which call for detailed argument
and mature consideration' at 436."

6. The second major area of difficulty is with the concept of "purpose". Both of these aspects arise in the present proceedings.

7. The facts concerning this litigation and the issues they raise are set out in the reasons of Sheppard and Wilcox JJ.

8. The position was that milk vendors, members of the Amalgamated Milk Vendors Association Inc. (the Association), voluntarily agreed to withhold supply of New South Wales pasteurised milk to stores operated by Jewel Food Stores Pty. Limited ("Jewel"), while those stores were selling Victorian milk.

9. His Honour found that Jewel could not obtain enough Victorian milk to meet all its requirements. He found that in the non-delivery to Jewel stores (except stores in Wagga Wagga and Queanbeyan) of New South Wales pasteurised milk between 6-13 August 1987, the individual milk vendors and the Association acted in concert. There is no appeal from that finding.

10. Confining the words of the sub-section to those on which the appellant now relies, the sub-section would read:-

"A person shall not, in concert with a second
person, engage in conduct that hinders or prevents
the acquisition of goods by a third person from a
fourth person where 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 substantial loss or damage to
the business of the fourth person."

11. In the facts of the present case, there is no relevant employer-employee relationship.

12. Such a prohibition has been contained in the section since the original s 45D was first enacted by Act No. 81 of 1977, where what is now a "fourth person" was referred to as "a corporation".

13. The appellant submits that each milk vendor is a "first-named person"; each other vendor, and the Association, is a second person; the customers of Jewel are "third persons" and Jewel is the "fourth person".

14. The appellant's submission is that the denial of supply by the milk vendors to Jewel hindered or prevented the acquisition of milk by Jewel's customers from Jewel. The appellant's argument, which finds favour with Sheppard and Wilcox JJ., is that the primary boycott of Jewel stores by the milk vendors constitutes a secondary boycott of Jewel's customers. That such was not the intention of the legislature seems to me to be implicit in the explanatory memorandum circulated by the Minister when s 45D was first introduced by the Trade Practices Amendment Bill 1977:-

"The Bill contains special provisions for the
prohibition of collective boycotts. Collective
primary boycotts (where the boycott seeks to
restrict the dealings of the parties with the
target person) are prohibited as 'exclusionary
provisions' (defined in new section 4D (clause 6))
- new section 45(2)(a)(i) and 45(2)(b)(i).
Collective secondary boycotts (where the boycott
seeks to restrict the dealings of persons, other
than the parties, with the target person) are
prohibited where they have or are likely to have a
prescribed effect - new section 45D."

15. The consequences of the conclusion by the majority would, in my respectful view, take the section where it was never intended to operate, and might, in suitable factual circumstances, have significant implications on industrial relations generally in this country. In particular, it would catch a primary boycott by self-employed persons such as the milk vendors in the present case, but would not extend to a withdrawal of labour by employees of a corporation because of the limitation that the fourth person not be an employer of the first-mentioned person.

16. A mechanistic matching of the "four persons" referred to in the section in the context of a primary boycott of a corporation by suppliers to the corporation tends to camouflage what really is the relevant "conduct", the relevant "goods" being acquired and the relevant connection between the conduct and the substantial loss or damage. It is necessary to identify with some precision what the relevant conduct is. In this case it is the non-delivery of New South Wales pasteurised milk by the milk vendors to a wholesaler acquirer of that milk, Jewel.

17. What are the relevant goods the acquisition of which is said to be prevented or hindered? Are the goods the acquisition of which is said to be hindered or prevented New South Wales pasteurised milk, Victorian pasteurised milk, or simply pasteurised milk regardless of its geographic origin?

18. The sole basis on which the appellants now assert a breach of s 45D is that the conduct of the milk vendors hinders or prevents "the acquisition of pasteurised milk by individual customers of Jewel (the third person) from Jewel (the fourth person). In this regard, the acquisition of pasteurised milk which is hindered or prevented includes the acquisition of pasteurised milk supplied to Jewel by the sixth respondents" (my emphasis). This, it seems to me, is an assertion by the appellants that the conduct of the milk vendors hinders or prevents the acquisition by customers of Jewel, of pasteurised milk of whatever origin.

19. The non-supply of New South Wales pasteurised milk does not hinder or prevent the acquisition of Victorian pasteurised milk by Jewel's customers, although the conduct is engaged in to persuade Jewel not ot acquire Victorian pasteurised milk.

20. Without New South Wales milk, Jewel cannot satisfy all its customers, because the supply of Victorian milk is in sufficient to satisfy the demands of all of Jewel's customers. The non-delivery of New South Wales milk has the consequence that some of Jewel's customers are not able to obtain pasteurised milk from Jewel; it also results in all of Jewel's customers not being able to obtain New South Wales pasteurised milk.

21. All that the non-supply of New South Wales pasteurised milk does is affect the capacity of Jewel to supply New South Wales pasteurised milk to its customers. So, it seems to me, it is only the acquisition of New south Wales pasteurised milk which might possibly be hindered or prevented.

22. If the appellant's case can properly be regarded as an assertion that the conduct of the milk vendors hinders or prevents the acquisition by Jewel's customers of New South Wales pasteurised milk, (a matter not the subject of submissions, and one about which I have serious reservation), does that interference have the effect of causing substantial loss or damage?

23. In my opinion the customers of Jewel are concerned to acquire pasteurised milk independently of the geographic origin of that milk. Customers of Jewel would be concerned with the quality and price of the pasteurised milk purchased from Jewel, and would not chauvinistically be concerned with the state of origin of the cows which produced it. That being so, any loss or damage to Jewel is occasioned by the fact that Jewel cannot obtain enough non-New South Wales pasteurised milk; it is not because it cannot obtain any New South Wales pasteurised milk. The non-delivery of New South Wales milk is the causa sine qua non of the difficulties experienced by Jewel's customers. The inadequacy of alternative supplies of pasteurised milk is the causa causans of the difficulties of Jewel's customers in acquiring pasteurised milk.

24. The section requires that the non-delivery of New South Wales milk to Jewel be likely to have the effect of causing substantial loss or damage to the business of Jewel. I note at this stage the unhappy phrasing "likely to have the effect of causing". I take this simply to mean "likely to cause". There are in truth two transactions. First, there is the wholesale supply of New South Wales pasteurised milk by the milk vendors to Jewel. The second transaction is the retail sale of pasteurised milk from whatever source by Jewel to the customers of Jewel In my opinion, the first does not hinder or prevent the second.

25. In Cole v. Whitfield [1988] HCA 18; (1987-1988) 165 CLR 360, the Full High Court, in a joint judgment, substantially embraced the "free trade" approach to the interpretation of s 92 of the Constitution and overthrew the "criterion of operation" formula for the interpretation of s 92, which doctrine had its origins in O. Gilpin Ltd v. Commisssioner for Road Transport and Tramways (NSW) [1935] HCA 8; (1935) 52 CLR 189 at 205-6. The Court in Cole said, at 401:-

"The doctrine is highly artificial. It depends on
the formal and obscure distinction between the
essential attributes of trade and commerce and
those facts, events or things which are
inessential, incidental, or, indeed, antecedent or
preparatory to that trade and commerce. This
distinction mirrors another distinction, equally
unsatisfactory, between burdens which are direct
and immediate (proscribed) and those that are
incorrect, consequential and remote (not proscribed)."

And later at 401-402 the Court said:-

"In a context in which the doctrine was seen as
supporting a constitutional guarantee of the right
of the individual to engage in interstate trade,
it scarcely seemed to make sense to say that
production for the purpose of trading interstate
with the product: (Grannall v. Marrickville
Margarine Pty. Ltd. [1955] HCA 6; (1955) 93 CLR 55: Beal v.
Marrickville Margarine Pty. Ltd. [1966] HCA 9; (1966) 114 CLR
283) and importation of aircraft with which to
engage in interstate air transportation (Reg. v.
Anderson; Ex parte Ipec-Air Pty. Ltd. [1965] HCA 27; (1965) 113
CLR 177: Ansett Transport Industries (Operations)
Pty. Ltd. v. The Commonwealth [1977] HCA 71; (1977) 139 CLR 54)
fell outside the constitutional protection on the
ground that the relevant activities were not
essential attrivutes of interstate trade. The same
comment may be made about Damjanovic & Sons Pty.Ltd.
v. The Commonwealth [1968] HCA 42; (1968) 117 CLR 390...In each of
these cases, the legislation affected interstate
trade in a substantial way, yet, because the
effect was indirect or consequential, s 92 had no
application."

26. Yet notwithstanding that criticism by the Court of the approach to s 92 in the Grannal, Beal and Ipec cases, it seems to me that it is still valid to inquire whether an interference at one point in a series of intended transactions amounts to a prevention or hindrance of a later transaction in the series. There is the old nursery rhyme telling how for want of a nail a kingdom was lost. Is it right to say that a person who refuses to supply a farrier with a nail, by that conduct interferes with the defence of the realm?

27. In my respectful opinion, even after Cole v. Whitfield (supra), the prohibition on the importation of an aircraft does not hinder or prevent interstate air freight, and the refusal to supply New South Wales pasteurised milk to Jewel does not hinder or prevent the sale of pasteurised milk to Jewel's customers.

28. The learned primary judge, in rejecting the present submission of the appellant as constituting a breach of s 45D(1) said:-

"To treat the actions of the milk vendors as
conduct that hindered or prevented the acquisition
of milk by customers of Jewel stores is to look
beyond the direct effect of those actions upon
supply to the stores, and to take account of an
indirect or ultimate effect upon the availability
of milk to the customers of the stores."

He continued:-

"...45D(1) deals separately with supply of goods or
services to a 'fourth person' and acquisition of
goods or services from a 'fourth person'. It
would be inconsistent with the structure and
evident intent of the provisions to treat an
interference with supply to the applicant, not
under that part of the provision which deals with
supply to it, but as an indirect interference with
acquisition from it. But it would be quite
anomalous if such an approach could lead to
liability for the indirect effect in a case (such
as the present) where the terms of the legislation
exclude liability for the direct effect. In my
opinion, s 45(1) contemplates two levels of
activity, supply to a corporation of its
requirements, and supply by it to its customers;
and the subsection makes separate provision for
interference by a secondary boycott at each of
those levels. In neither case, does that
provision extend to indirect consequences at the
other level."

29. I respectfully agree with this reasoning.

30. Next, it is necessary that the relevant conduct be engaged in for the purpose of causing substantial loss or damage to the business of Jewel.

31. The argument for the appellant proceeds along these lines: it must have been obvious that the concerted conduct by the milk vendors would cause damage to the business of Jewel. A person intends the natural consequences of his act and the natural consequences of the non-delivery of New South Wales pasteurised milk to Jewel was that Jewel would suffer substantial loss or damage, therefore the milk vendors intended to cause substantial loss or damage to Jewel and it can therefore be said that at least one of the purposes for which the conduct was engaged in was the causing of substantial loss or damage to Jewel. The submission, equating fore-knowledge with intention, and intention with purpose, is routinely made and seems routinely to have been accepted.

32. First, as the so-called presumption that a person intends the natural consequences of his act, a proposition not infrequently encountered in this type of proceedings (see eg Epitoma v. A.M.I.E.U., supra at 59,) it is well to remember the observations of the High Court (Dixon CJ, Webb and Kitto JJ.) in Stapleton v. the Queen [1952] HCA 56; (1952) 86 CLR 358 at 365:-

"The introduction of the maxim or statement that a
man is presumed to intend the reasonable
consequences of his act is seldom helpful and
always dangerous. For it either does no more than
state a self evident proposition of fact or it
produces an illegitimate transfer of the burden of
proof of a real issue of intent to the person
denying the allegation."

After the judgment of the House of Lords in Director of Public Prosecutions v. Smith (1961) AC 290, where it was held that the only thing that can rebut the presumption that a man intends the natural and probable consequences of those acts is proof of incapacity to form an intent, insanity or diminished responsibilty, Dixon CJ, in Parker v. The Queen [1963] HCA 14; (1962-63) 111 CLR 610, with the concurrence of all the other members of the Court, said at 632:-

"There are propositions laid down in the judgment
which I believe to be misconceived and wrong.
They are fundamental and they are propositions
which I could never bring myself to accept...
I wish there to be no misunderstanding on the
subject. I shall not depart from the law on the
matter as we had long since laid it down in this
Court and I think Smith's Case (1961) AC 290
should not be used as authority in Australia at
all."

33. More importantly in the present case, "intention" is not "purpose", and it is wrong to treat the concepts as interchangeable. The section does not require simply that the conduct be engaged in with the intention of causing substantial loss or damage; and it is wrong to equate a finding of the existence of that intention to a finding that the conduct was engaged in for the purpose of causing substantial loss or damage.

34. It is true that the effect of s 45D(2) and para. 4F(b) is that a person is deemed to have engaged in conduct for a particular purpose if the person engaged or engages in the conduct for purposes that included or include that purpose and that purpose was or is a substantial purpose. Those provisions recognise that persons can engage in conduct for a number of purposes. If logically a distinction is properly to be maintained between means and ends, it is, I believe, wrong to characterise the means by which a prupose is sought to be achieved as a co-existing purpose.

35. It is possible to envisage a special case in which one of the purposes for which conduct is engaged in is the purpose of causing substantial loss or damage. If in truth one of the objects of the activity is to cause damage, as could be the case where the person is actuated by malice, one might be entitled logically and fairly to characterise one of the purposes as a purpose of causing substantial loss or damage. In most cases, however, the causing of damage, while foreseeable and foreseen if the actor turned his or her mind to it, will be the means by which the purpose of the activity is sought to be achieved, and the causing of substantial loss or damage will not be the purpose or one of the purposes for which the conduct is engaged in.

36. It is to be noted that there is a significant lack of symmetry between the positions of persons who are employees and persons who are not employees. Section 45D(1B) provides that it is a defence if the defendant proves that the dominant purpose of the defendant engaged in conduct amounting to a contravention of sub-section 45D(1A) was to "preserve or further a business carried on by him". That defence is not available where the conduct amounts to a contravention of s 45D(1)(b). Moreover, the requirement in 45D(1) that the fourth person not be an employer of the first-mentioned person, cannot apply where the first or second persons are not employees but independent contractors supplying the fourth-mentioned person.

37. Next, s 45D(3), providing that a person shall not be taken to contravene or to be involved in a contravention of sub-section (1) or (1A) by engaging in conduct where the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of that person or anther person employed by an employer of that person, speaks of "the dominant purpose".

38. That provision in no way mitigates the obligation of an applicant ot establish, if it can, that conduct alleged to be a contravention of s 45D(1) was engaged in for the purpose of causing substantial loss or damage or that one of the purposes for which the conduct was engaged in eas the purpose of causing substantial loss or damage. It is only after that has been established that consideration of what is "the dominant purpose" may arise.

39. It has to be said also that the dominant purpose of which s 45D(3) speaks is confined to issues which seem solely to arise in the employer/employee relationship. It seems to me surprising that if the dominant purpose for which the defendant engaged in conduct was to preserve or further a business carried on by him, that can afford a defence to a contravention of s 45D(1A) but not a defence to s 45D(1)(b). This is a further consideration, in my view, for holding that s 45D(1)(b) does not apply in the factual circumstances of this case.

40. As to the findings by the learned primary judge as to purpose, his Honour said:-

"It must have been obvious that action of this kind
could only be effective if it was concerted; but
if it was concerted, it could have a severe impact
on the applicant."

41. Having found that the applicant failed in each of its attacks under s 45D(1) for reasons with which I respectfully agree, his Honour, in considering the application of s 45D(1A) said:-

"It is clear the purpose was to prevent the
applicant who is not an employer of any of the
respondents, from selling Victorian milk through
its stores. That, in the circumstances, was the
likely effect."

His Honour then said:-

"I am satisfied...that the dominant purpose for
which each of the sixth respondents engaged in the
conduct concerned was to preserve his business as
a milk vendor. I do not think there is any doubt
about this conclusion.

42. In Nauru L.G.C. v. A.S.O.A (1978) 27 ALR 535 Northrop J. said at 544, in a lengthy passage which bears repeating:-

"Difficulties arise in proving a purpose for which
a person engages in particular conduct. There may
be many purposes activating that person, but under
s 45D(2) if one of the purposes is that
proscribed by s 45D(1) than that person
contravenes the section. It may be said that a
person intends the natural consequences of his
acts and that accordingly if, as a necessary
effect of conduct engaged in for a purpose,
substantial loss or damage is caused, then, of
necessity, that conduct is engaged in for purposes
including a purpose of causing substantial loss or
damage. In my opinion, such a conclusion does not
follow. The plaintiff carries the onus of proof,
albeit on the balance of probabilities and albeit
to establish a prima facie casr in the sense
already described. There is no provision by which
the onus is shifted to the defendants: cf s 5(4)
of the Conciliation and Arbitration Act. It is
well to remember the words of Viscount Cave L.C.
in Sorrell v. Smith (1952) AC 700; (1925) All
ER Rep 1. An issue in that case was whether a
combination of two or more persons for the purpose
of injuring a man in his trade was unlawful and,
if resulting in damage to him, was actionable.
The Lord Chancellor said (AC at 715): 'That the
defendants combined in a proceeding, the necessary
effect of which would have been to injure the
plaintiff in his trade unless he submitted to
their conditions, may be assumed; but did they do
so for the purpose of injuring the plaintiff in
his trade, or was it their purpose and object to
forward or defend their own trade? I am satisfied
that the latter is the true view. The learned
trial judge found as a fact that the defendants
were not actuated by any spite against the
plaintiff or by any intention or desire to injure
him. Their purpose was to defeat the 'distance
limit policy' of the retail federation, which they
considered injurious to the free sale of their
newspapers; and because the plaintiff, at the
instance of the retail federation and in concert
with them, was endeavouring to forward that policy
by withdrawing his custom from Ritchie's, the
defendants, as a counter move, declined to supply
Watson's with papers which they could hand on to
the plaintiff. Both moves were episodes in a
trade war which was being waged between the
retailers of newspapers on the one hand and the
producers and wholesalers on the other, and were
adopted in the supposed interests of one or the
other side. Stroke and counter stroke, whether
wise or not, were equally prompted by a desire
to forward or protect trade interests. The plaintiff
struck the first blow, and when it was countered
by a similar blow struck by the defendants ran to
the court for protection. His attitude recalls
the saying of a French author: 'Cet animal est
tre mechant; quand on l'attaque, il se
defend.' ("This animal is very dangerous; when
attacked it defends itself.") Apparently he
forgot that if the defendants were acting
illegally then so was he, and that if he was
acting illegally a court of equity would hardly be
disposed to help him. I think that in this case
it was proved that the defendants took action for
the sole purpose of protecting their own trade,
and accordingly that they have not committed or
threatened to commit any wrong and are not liable
to any proceedings.: see also McKernan v. Fraser
[1931] HCA 54; (1931) 46 CLR 343, per Evatt J. at 371."

43. These observations may be contrasted with those of Beaumont J. in Chevron Transport Corporation v. Seamen's Union of Australia 49 ALR 180 at 184. Beaumont J. there said:-

"In the present case, however altrustic the
original motives of the respondents may have been,
I am satisfied that the applicant has established
a prima facie case that the respondents intended
the natural consequences of their action in
imposing the bans and that those consequences were
the occasioning of significant financial loss to
the applicant. In my opinion, that loss could
fairly be characterized as substantial in the case
of a large oil tanker. Even if one accepts that
the ultimate objective of the repondents may have
been the improvement of the working conditions of
the seamen, the applicant has made out a prima
facie case that the means to that end chosen by
the respondent was the imposition of bans which
were designed to harm the applicant. The
applicant has thus established a prima facie case
of a contravention of s 45D(1)."

I respectfully cannot acept that if the means to an end which were adopted by the respondent was the imposition of bans which were designed to harm the applicant, that establishes that the conduct was engaged in for the purpose of causing substantial harm or damage.

44. In this context, reference is invariably made to the observations of Evatt J. in McKernan v. Fraser [1931] HCA 54; (1931) 46 CLR 343 at 403, where he said:-

"Sir Geoffrey Lushington said, in special reference
to combined action against employers or
non-unionists on the part of unionists, that to
ask the question whether they acted to defend
their own trade interests or to injure their
economic adversary for the time being, is
equivalent to asking of a soldier who shoots to
kill in battle, whether he does so for the purpose
of injuring his enemy or of defending his country.
The analogy is sound, because combined strike
action is usually undertaken for the purpose, both
of causing harm to the employers and for the
improvement or maintenance of the standards of the
unionists. As Lord Sumner said in Sorrell v.
Smith (1925) AC at p 734: 'All well planned
and successful commercial actions of this kind
must prejudically affect the rival and is intended
to do so.' Such is the commencing and not the
finishing point of the relevant inquiry."

45. What must be remembered is Evatt J.'s interchangeable use of "intention" and "purpose", as his observations at 399,400 and 401 indicate. At 401, for instance, his Honour said:-

"Before the defendants can be held liable, we must
ascertain the object or motive of the combination
beyond the immediate intention or purpose of
inflicting injury."

In that action for, inter alia, conspiracy to injury the plaintiffs, the High Court determined the judgment should have been given for the defendant. The basis for the finding of the majority is reflected in the observations of Dixon J., as he then was, at 362:-

"It appears now to be settled that, for a
combination or acts done in furtherance of the
combination to be actionalbe in such
circumstances, the parties to the alleged
conspiracy must have been impelled to combine, and
to act in pursuance of the combination, by a
desire to harm the plaintiff, and that this must
have been the sole, the true, or the dominating,
or main prupose of their conspiracy. At any rate
so I understand the doctrine which has slowly won
its way to final acceptance by the House of Lords
(Sorrell v. Smith (1925) AC 700).) To adopt a
course which necessarily interferes with the
plaintiff in the exercise of his calling, and thus
injures him is not enough. Nor is it enough that
this result should be intended if the motive which
actuates the defendants is not the desire to
inflict injury but that of compelling the
plaintiff to act in a way required for the
advancement or for the defence of the defendants'
trade or vocational interests."

Evatt J. said at 404 of McKernan and those acting with him that:

"Their intention and purpose was to carry out their
Union's policy against each and every member who
was engaged in the attempt to destroy it."
(My underlining)

46. He later said:-

"The combination was not imbued with 'independent
malevolence' (Lord Sumner's expression) or
'disinterested malevolence' (the quotation of
Cardozo CJ). No doubt the combination had an
'animus' against the opposing group, and wished to
'punish' or 'discipline' them. But the resentment
and indignation of McKernan and those joined with
him against Fraser, Stapleton and all the members
of the rival Union were intimately bound up with
their sentiment of loyalty to their trade
organization.
This conclusion would be sufficient to dispose of
the cause of action against McKernan based upon
'conspiracy to injure'."

47. If a person were to shoot another person who was attacking him, the intention of the first person would be to kill or disable the attacking person, but the purpose of the first person would be to protect himself. It is, in my respectful view, a misuse of language to say that the means by which an objective is pursued is a "primary' purpose, and the objective being pursued a "secondary" purpose.

48. In Tillmans Butcheries Pty. Ltd. v. A.M.I.E.U. [1979] FCA 84; (1979) 27 ALR 367, Bowen CJ., Having referred to the statement of Evatt J. in McKernan v. Fraser (supra) said at 374:-

"Evidence in the case before us leads, in my view,
to the conclusion that the respondents knew that
the only pressure that would be effective against
Tillmans was the prospect of actuality of loss or
damage. To cause it was one of their purposes."

If this is regarded as a finding of fact, it is unexceptionable. If it purports to equate knowledge of consequences with purpose, I respectfully disagree. And Deane J. said at 382:-

"The purpose referred to in s 45D(1) is the
operative subjective purpose of those engaging in
the relevant conduct in concert."

And at 383:-

"...the question to be answered in determining
whether conduct was engaged in for a 'purpose'
mentioned in s 45D(1) of the Act is, to adopt the
words of Viscount Simon L.C. in Crofter Hand Woven
Harris Tweed Co. Ltd. v. Veitch [1941] UKHL 2; (1942) AC 435 at
444-5, to be answered not by reference to whether
it was appreciated that the relevant conduct might
have the specified effect but by reference to the
real reason or reasons for, or the real purpose or
purposes of, the conduct and to what was in truth
the object in the minds of the relevant persons
when they engaged in the conduct in concert. In
so far as the Union was concerned, its purpose
must, of course, be determined by reference to the
purpose of those through whom it acted."

While his Honour said that the black ban in that case "was plainly imposed as a means of bringing pressure to bear upon the appellant..., (t)he point and purpose of the respondents' imposing and procuring observance of the black ban was that it would cause substantial loss or damage to the appellant's business..."

49. If, as is usually the case, the result of concerted action is the causing of damage to the target, it does not at all follow that at least one of the purposes for which the conduct was engaged in was the causing of damage. This approach, which attributes as a purpose that which frequently is not a purpose but a means, is to be contrasted with the true position as indicated by Viscount Simon L.C. in Crofter Hand Woven Harris Tweed Company Limited v. Veitch [1941] UKHL 2; (1942) AC 435.

50. Viscount Simon L.C. said at p 444:-

"The question to be answered, in determining
whether a combination to do an act which damages
others is actionable, even though it would not, be
actionable if done by a single person, is not 'did
the combiners appreciate, or should they be
treated as appreciating, that others would suffer
from their action, but 'what is the real reason
why the combiners did it?' Or, as Lord Cave puts
it, 'what is the real purpose of the combination?'
The test is not what is the natural result to the
plaintiffs of such combined action, or what is the
resulting damage which the defendants realize or
should realize will follow, but what is in truth
the object in the minds of the combiners when they
acted as they did.. It is not consequence that
matters, but purpose; the relevant conjunction is
not (illegible) so the ...' but (illegible) in order that'.
Next, it is to be borne in mind that there may be
cases where the combination has more than one
'object' or 'purpose'. The combiners may feel
that they are killing two birds with one stone,
and, even though their main purpose may be to
protect their own legitimate interests
notwithstanding that this involves damage to the
plaintiffs, they may also find a further
inducement to do what they are doing by feeling
that it serves the plaintiffs right. The analysis
of human impulses soon leads us into the quagmire
of mixed motives, and even if we avoid the word
'motive', there may be more than a single
'purpose' or 'object'."

It is only when there is this further element, which may fairly be identified as "independent malevolence" or "disinterested malevolence", to use the expressions quoted by Evatt J. in McKernan (supra), that it might properly be said that one of the purposes was to cause substantial loss or damage.

51. In this case in determining "purpose", what the vendors did was done in order that Jewel would desist from dealing in Victorian milk; it was not done in order that substantial loss or damage would be caused to Jewel. In my opinion, the conduct of the milk vendors was not engaged in for the purpose of causing substantial harm or damage to Jewel nor was that a purpose for which the conduct was engaged in.

52. For each of the reasons that the conduct of the milk vendors did not prevent or hinder the acquisition of goods from Jewel, that that conduct did not have the effect or was likely to have the effect of causing substantial damage to Jewel and that that conduct was not engaged in for the purpose of causing substantial loss or damage to Jewel, nor was that one of the milk vendors' purposes, I would dismiss the appeal with costs.