Air Pacific Ltd. v Transport Workers Union of Australia

[1993] FCA 23

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IN THE FEDERAL COURT OF AUSTRALIA )

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GENERAL DIVISION 1

BETWEEN:	AIR PACIFIC LTD Applicant
AND:	TRANSPORT WORKERS UNION OF AUSTRALIA
First Respondent
TRANSPORT WORKERS  '
UNION OF AUSTRATJLA, NEW SOUTH WALES BRANCH
Second Respondent JOHN PRICE Third Respondent and JOHN MCLEAN Fourth Respondent

C O W :	WILCOX J
PLACE :	SYDNEY
DATE :	15 JANUARY 1993

aplication. I told hlm that I thought it would be preferable	come up at about 2.30. I had some other matters in the llst	for the application to be made in Court and suggested that he
I also suggested that it would be advisable for notice to be given, even informally, to the respondents. It appears that this was done. Just as I was coming into Court at 2.15 my secretary took a phone call from the third respondent, M r John Price, asking if the matter could be delayed for an hour. Information was conveyed back to him that he should come to Court as quickly as possible. I gather from what M r Trew has said that there was subsequently a conversation between Mr Price and counsel and/or instructing solicitors in which they indicated that they would proceed with the application. Mr Prlce said that he was endeavouring to get legal advice.
The matter has been dealt with in open court. The period which has elapsed exceeds the one hour that Mr Prlce sought, but there has been no appearance on behalf of any of the respondents. I regret this because I would have liked to have heard their point of view before making any interlocutory order; but I am satisfied that this is a proper case in which
to make an ex parte order.
The evidence indicates that the events giving rise to the application have caused enormous inconvenience, particularly having regard to the fact that Fiji is substantially dependent upon flights to other countries undertaken by the applicant, and also the fact that these events come so shortly after a disastrous cyclone. It is obv~ous that many members of the publlc, both in Australia and in other places, are suffering considerable inconvenience; and it does not require much imagination to understand that the
financial cost to the applicant is likely to be extremely
high.
Accordingly, the considerations relevant to balance of convenience point very strongly to the grant of relief; whereas if an order is made, and it turns out for some reason to have been misconceived or unnecessary, it is extremely difficult to think that any of the respondents will have suffered any economic disadvantage.
In regard to the merits of the matter, it is plain that there are bans in force both at Sydney and Melbourne airports. The respondents have disowned responsibility for the bans but I am not satisfied that this disclaimer is genuine. To put the matter at its lowest - and this is as high as it need be put in the present case - there is certainly a serious question to be tried in favour of the
proposition that the respondents are in breach of s.45D(lA) of the Trade Practices Act 1974.
If the respondents have not imposed any bans, they should have little difficulty in informing their members of that fact in such a way as to ensure that there is no interference wich the applicant's activities. If there are no
bans, then, almost by definition, there can be no detriment to the respondents in ensuring that the members who are responsible for servicing the applicant's planes are apprised of that fact and encouraged to carry out their normal work.
For all of these reasons, I am satisfied this is a case where I ought to grant the relief sought. I note the undertaking as to damages given on behalf of the applicant by
Mr Trew. The orders that I make are as set out in the short
minutes of order initialled by me and dated today. The Application is yet to be filed. That ought to be done iiiediately. I direct that the formal orders, as contained in
paras 6 and 7, may then be taken out and service effected in accordance with the provisions of para 5.
I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of the Honourable Justice Wilcox.
Associate: . S 4 Dazed: 15 January 1993

EXTEMPORE REASONS FOR JUDGMENT F E D E ~ L COURT OF

AUSTRALIA PRINCIPAL

REGISTRY

WILCOX J: I was contacted at lunch time about thls matter by

Mr Trew asking when it would be convenient to make an

APPEARANCES

Counsel for the Applicant:	J L Trew QC and A S Martln
Solicitors for the Applicant:	Freehill Hollingdale and Page
Counsel for the Respondents:	No appearances
Solicitors for the Respondents:	No appearances
Daces of hearing:	15 January 1993