Concrete Constructions (NSW) Pty Ltd v Australian Building Construction Employees

[1988] FCA 293

CATCHWORDS

CONTEMPT OF COURT - alleged disobedience of

interlocutory orders - Trade Practi ces Act - s . 4 5 0 ’ ( 1 )

- purpose of conduct - whether purpose to cause

substantial loss O K damage - proof of purpose - onus

of proof - breaches of interlocutory orders not

established

Trade Practices Act 1974, s.45D(1)

CONCRETE CONSTRUCTIONS (NSW) PTY. LIMITED

V AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND

BUILbERS ’ LABOURERS’ FEDERATION; STEVE BLACK;

WILLIAH P R S SIDDONS

No. G950 of 1988

Sydney

Morling J.
16 June 1988

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) No. G 950 of 1988
)
GENERAL DIVISION	1

BETWEEN:  CONCRETE CONSTRUCTIONS (NSW)

PTY. LIMITED

Applicant

AND :  AUSTRALIAN BUILDING CONSTRUCTION

EMPLOYEES AND BUILDERS'

LABOURERS' FEDERATION

First Respondent

AND :  STEVE BLACK

Second Respondent

AND :  WILLIAM ROSS HEFFERNAN

Third Respondent

AND :  DOUGLAS IDDONS

Fourth Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER : Morling J.

DATE OF ORDER : 16 June 1988

WHERE MADE : Sydney

THE COURT ORDERS AS FOLLOWS:

1. The application that he second, third and

fourth respondents be adjudged to be guilty of

contempt of Court is drsmissed.

2.	The applicant is to pay the third	respondent's
costs.

NOTE:  Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) NO. G 950 Of 1988
)
GENERAL DIVISION	1

BETWEEN:  CONCRETE CONSTRUCTIONS (NSW)

PTY. LIMITED

Applicant

AND :  AUSTRALIAN BUILDING CONSTRUCTION

EMPLOYEES AND BUILDERS’

LABOURERS’ FEDERATION

First Respondent

AND :  STEVE BLACK

Second Respondent

AND :  WILLIAH ROSS HEFFERNAN

Third Respondent

AND :  DOUGLAS SIDDONS

Fourth Respondent

MORLING J. 16 June 1988

REASONS FOR JUDGMENT

These are proceedings in which the applicant seeks

orders that the respondents be adjudged to be guilty of

contempt of Court in respect of their alleged breaches of

order8 made by Foster J on 13 May 1988. On that day the

learned judge made interlocutory orders under	s.45D(1) of the
Trade Practice. Act1974 against each	of the respondents. The

second, third and fourth respondents are members of the first

respondent (“the B.L.F.”).

Although several orders were made against each

respondent it is sufficient for present purposes to refer to
the terms of the first order made against all the respondents.
It was in the following terms:

"(1)	AN ORDER that the First Respondent by itself,
its servants and agents and the Second Third
and Fourth Respondents be restrained until
further Order from engaging directly or
indirectly in concert with another person or persons in conduct that hinders or prevents the supply to the Applicant of building
construction services by any person or
persons at any one or more of the building
construction sites listed in the Schedule hereto where such conduct is engaged in for the purposes and would have or be likely to have the effect of causing substantial loss or damage to the business of the Applicant contrary to the provisions of Section 45D of the Trade Practices Act, 1974 as amended."

The Schedule consisted of a list of eleven building

sites, mostly within the Central Business District of the Ci y

of Sydney. The sites included the Gateway Plaza and Chevron

Hotel sites.

The orders made against the first respondent appear

not to have been served, and no orders are sought against it in

the present application. I am satisfied that the second,

third and fourth rerpondents were served with copies of the

ord8r8 made	by Forter J and with the notices of motion seeking
order.	that they be adjudged to be guilty of contempt and with

copier of the affidavits filed by the applicant.

It appears that the evidence which persuaded Foster J

to make the interlocutory orders consisted for the most part of
evidence that the rerpondents had paid a number of uninvited
visits to the applicant's building sites and refused to leave

when requested. During the course of some of these visits

they had handed out inflammatory pamphlets. The vislts had
caused friction amongst workers on the sites. There was also

evidence before his Honour that the respondent Douglas Siddons,

in company with one David Croden, had gained access to a large

crane at the 135 King Street, Sydney site and immobilized it

with consequent disruption to the building work being carried

out on the site. It must be borne in mind that, in seeking

interlocutory relief, the applicant needed to satisfy Foster	J
only that there was a serious question to	be ried on the issue

whether the respondents were acting in contravention of

6.45D(1) of the Trade Practices Act and that the balance of convenience lay in favour of granting interlocutory relief: see Australian Coarse Grains Pool v The Barley Marketing Board

(1982) 57 A.L.J.R. 425. However, as will appear later in these

rearonn the standard of proof required of the applicant's case

in the present proceedings is quite different and much higher.

It is this higher standard which lies at the root	of what I
perceive to be the	applicant's difficulties in establishing the

contempt8 alleged against the rerpondents.

The statement of the charge in the proceedings brought

againrt the aecond respondent, after referring to the orders made on 13 May and to the fact that on 17 May a copy of the

order8 war rerved on him alleged, inter alia, that he had:

"Continued to engage in conduct that has hindered or prevented

the rupply to the Applicant of building construction services

at the building conrtruction rites known as 'Gateway Plaza' and

'Chevron Hotel' and thereby had the effect of causing

substantial loss or damage to the business of the Applicant." Other allegations were made in the statement of charge but it is unnecessary to refer to them. The Particulars of Charge in the proceedings against the second respondent were in the

following terms:

"PARTICULARS OF CHARGE

The Second Respondent with servants and agents of the First Respondent without lawful excuse: -

Did enter unauthorised upon the

building construction site known as

'Gateway Plaza', Corner of Pitt Street

and Reiby Place, Sydney ('Gateway

Plaza'), (hereinafter called 'the said

premises') on the dates and at the times hereinafter specified: -

At 2.30 p.m. on 17th May, 1988

with Joe Maric.

At 2.30 p.m. on 18th May. 1908

with the Fourth Respondent,

Douglas Siddons.

At 12.45 p.m. on 19th May, 1988

with Joe Maric.

Remained upon the said premises at the

timer and dates referred to above and
refused to leave the 8aid premise8 when

commanded to do so knowing that such

presence would cause disruption.

Caured hindrance to the Applicant in

ita supply of building services by his
presence upon the said sites requiring

intervention by the police for his

removal.

Dirtributed a newsletter calling upon workers engaged upon the said sites to

take industrial action against the

Applicant which has resulted in

industrial unrest, stop work meetings,

dirruption a d hindrance tohe

Applicant in its supply of building
services."

The Particulars of Charge against the third respondent

were in almost identical terms, except that in lieu of the

allegation in para. ( i it was alleged that the third

respondent, with servants and agents of the first respondent,

had entered without authority on the Gateway Plaza site	at
10.40 a.m.	on 18 May with Joe Maric.

The Particulars of Charge against the fourth

respondent were also in almost identical terms, except that in

lieu of the allegation in para. (i) it was alleged that the

fourth respondent with servants and agents of the first

respondent had entered without lawful authority on the Gateway

Plaza site at 2.30 p.m. on 18 May with the second respondent.

It is the applicant's case that each of the

respondents has wilfully disobeyed the orders made by Foster J.

It is submitted that the respondents, by entering upon the

building sites and causing trouble with employees of

sub-contractors, have deliberately breached the terms of the

orders made against then. This being the nature of the

contempt alleged, the consequences for the respondents if the

charge.	aro established would be serious.
The present proceedings should be regarded as quasi

criminal in character: see Australasian Meat Industry

Employeesf Union v Rudginbarri Station Pty Limited (1986) 161

C.L.R. 98 at p.109. I think that in a case such as the

present it is appropriate to apply a high standard of proof

approaching proof beyond reasonable doubt. In Concrete

Constructions Pty. Limited vPlumbers and Gas Fitters

Employees' Union of Australia (No. 2 ) (1987) 72 A.L.R. 415 at

p.436 Wilcox J took the view that, on the facts of that case,
it was proper to apply the criminal standard of proof. In

Glass Containers (Australia) Pty Limited v Hyundai Australia

Pty Limited (1986) 8 A.T.P.R. 47986 (a motion for contempt for

breach of an undertaking) Toohey J said the standard of proof

appeared to be somewhere between a balance of probabilities and

satisfaction beyond reasonable doubt. In a case in which

proof of the alleged contempt would not lead to serious

consequences, a somewhat less onerous standard of proof might

apply:  see New South Wales Egg Corporation v Peek (1987) 10

N.S.W.L.R. 72 at p.81 et seq.

The critical question in the present application is

whether the conduct of any of the respondents referred to	in
the several Particulars of Charge was engaged in	for the
purpose of causing subatantial losa	or damage to the business

of Concrete Conrtructions. To prove a breach of the orders

made by Foster J Concrete Constructions must establish that a

purpoae of the conduct of one or more of the respondents was to

cause much lOS8 or damage. It is sufficient for it to

establirh that this was one of their purposes.	It	is not
necessary for it to prove that	it was their only,	or dominant,
purpose: see	8.45D(2)	of the Trade Practices Act.

when conduct is engaged in by unionists in furtherance

of what they perceive to be their own interests or the

interests of their union, it is sometimes difficult to prove that one of their purposes is to cause substantial loss or damage to a corporation's business. The difficulty is readily

overcome in cases where the immediate purpose of the conduct

engaged in is to bring direct pressure to bear on the

corporation by depriving it of the materials it needs to

conduct its business. Such cases often involve the imposition

of black bans or the setting up	of picket lines. Two such
cases were Barneys Blu-Crete Pty Limited	v Australian Workers'

Union (1979) 43 F.L.R. 463 and Mudginberri Station Pty Limited

v Australasian Meat Industry Employees' Union (1985) 61 A.L.R.

280.	But the present	is not such a case. As will appear
from the facts to which	I shall presently refer, there	is very

little evidence that the respondents, or any of them, engaged

in conduct that can be described as bringing pressure to bear

upon the applicant.

The evidence against Black is as follows:

(a) At about 11.50 a.m. on 17 May 1988 Black and Joe

Maric were observed in a lunch shed on the Gateway

Plaza site. Foster J ' s orders had been served

upon Black earlier the same morning. He and Maric

were asked to leave and said that they would not.

The police were called at about	11.55 a.m.	At
12.10	p.m.	they were again asked to leave the

promisem and they again refused. Black said that

they would leave when they had finished their

businerr. At 12.15 p.m. they were both arrested

and escorted from the site. However, ~t is to be

noted that the Particulars of Charge against Black

make no mention of this incident. This being	so,
while it may shed some light on	Black's subsequent

conduct, it is not evidence of the particular

conduct said to constitute Black's contempt.

(b) At about 2.30 p.m. on 18 May Black and Siddons

entered the Gateway Plaza site. They were both asked to leave and Black refused, saying: "Why

call the Police. You are just like Hitler." The

police	were	called.	Mr	Stinson,	the	project
manager,	told	Black	and	Siddons:	"You	are

seriously disrupting work on this site. I have

called the police because it seems the only way to

get you off the site and to enable work to continue

without disruptions." Black replied: "Your

attempts to go through the Courts to prevent us

representing our members will not	succeed!" Black
and Siddons both walked off the site at	3.15 p.m.

(C) Black and Maric were seen at about 1.15 p.m. on

19 May in a lunch shed on the Gateway Plaza site.

Stinson asked them to leave and they refused. The

police were called at about 1.45 p.m. Black and

Maric again refused to leave. They were arrested

and escorted off the site at about 2 p.m.

(b) On 24 Way Siddons entered the Chevron Hotel site at

about 1.30 p.m. He was spoken to by Mr Rea, who

was the site manager of the project. Rea said to

Siddons: "We are getting a bit tired	of you coming
on to the site" and that "It was causing a lot	of

problems about a job to run". According to Rea,

Siddons said that he had a job to do and was going

to continue to do it. He also said that "They are attacking Concretes, it is about time Concrete got a bit." When asked what he understood by these

remarks of Siddons, Rea said: "Basically he was
trying to attack Concretes, probably because they

were one of the larger builders in Sydney, and that

they were probably slightly better targets, I

imagine, than any other builder around town and

that was their aim at that particular time."

(C) On 26 May, Siddons and one Croden entered the

Chevron Hotel site at about 12.20 p.m.	They were
observed on the ground floor	f the project and the

police were called. Wr Challinor, the project

manager, asked them to leave. He said to them: "I

also remind you that there are Federal Court orders

prohibiting you from causing loss and damage to the

businoss of Concrete Constructions (N.S.W.) Pty

Limited. You are both aware that in coming on

these premises you are causing damage to Concrete's

business. Accordingly, you are breaching the

Court's orders." The police arrived at about

11. ..

12.45 p.m. and Constable Cooper asked Siddons and

Croden to leave. They refused, and were removed

from the site at about 1.10 p.m.

(d) On 27 May Siddons entered the site at about

10.27 a.m. and handed out leaflets. He seems to

have left very soon after arriving. The evidence
of this incident is hearsay, and I do not think I
should regard the incident as having been proved,
quite apart from the fact that it is not mentioned

in the Particulars of Charge.

(e) On 31 May (several days after the contempt

proceedings were commenced) Siddons entered the

Chevron note1 site and remained for about

10 minutes stapling posters on sheds.

There is evidence, which I accept, that the presence

of the respondent6 on the applicant's building sites causes

trouble with worker6 employed by .sub-contractors. They

apparently resent the presence of the B.L.P. men on the site.

They are all members of other unions but	some of them may also
be merbors of the B.L.P.	However, although the presence of

the respondents on the site is resented by the other workers,

they apparently resent even more the actions of the applicant's

site supervisors in calling the police to have the respondents

removed. They have threatened to stop work in future	if	the
police are called.

It may be accepted that two or more members of a union

acting together and having a union purpose for their conduct may nevertheless also have the purpose of causing substantial loss or damage to the business of a corporation: see Tillmanns

Butcheries Pty Limited v Australasian Meat Industry Employees'

Union (1979) 27 A.L.R. 367 at p.374 per Bowen C.J.	But as
Deane J observed in the same case, the "purpose referred to	in

s.45D( 1) is the "operative subjective purpose of those engaging

in the relevant conduct in concert." (p.382). His Honour

also said (at p.383):

"... in my view, 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	LC in Crofter
Hand Woven Harris Tweed CO Ltd v Veitch	[l-

4 3 5 at 444 - 5 , to be answered not b y f e r e n c e to

whether it was appreciated that the relevant

conduct might have the specified effect but by

reference to the real reason r 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."

See also, Transport Workers' Union of Australia (New South

Wales Branch) v Lcon Laidely Pty Limited (1980) 43 F.L.R. 168

at p.171 where Bowen C.J. observed out that the purpose

referred to in s.450(1) is "the subjective purpose of those who

are engaging in the conduct."

It is beyond question that the respondents' conduct

has been illegal and deserving of censure. It is most

important that the Court's orders should be obeyed. However,

after giving the applicant's evidence the most anxious

consideration, I have reached the conclusion that it does not establish, to the standard of proof to which I have referred, that any of the respondents have acted in contempt of the

orders made by Foster	J.	The evidence establishes that the
respondents have committed many acts	of	trespass upon the

applicant's premises, but I do not think	it establishes that in
so trespassing the respondents	had any purpose other than

speaking to members of the B.L.P. and other men working on the

sites. There is no evidence that any of the respondents

distributed pamphlets to workers on the applicant's	building
sites during the periods covered by the charges.

The dislocation which has been caused to Concrete

Constructions' business has been caused by the refusal of some

employees of sub-contractors on the jobs to work while the

respondents have been on site. The evidence does not satisfy

me that it was one of the respondents' purposes that this

should happen. They may well have appreciated that their

presence on the sites might cause friction with other

unionists, but that is not to say that they went on to the

sites for the purpose of causing substantial loss	or damage to
Concrete Constructions1 business.

The only unequivocal evidence that any of the

respondents intended to cause substantial loss or damage to

Concrete Constructions' business was given by Mr Rea.

According to him, on 24 May Siddons said, inter alia: "it is

about time Concretes got a bit". But this statement was made

during the course of an incident which is not relied upon in the Particulars of Charge. Horeover, it does not constitute

evidence against the other respondents.	It should be noted
that Rea did not depose to this statement	in his affidavit. He
gave oral evidence of it in the witness box.	Order 40, rule 7
requires the evidence	in support of a charge of contempt to be
by affidavit, unless the Court otherwise permits. Bearing	in

mind that the incident of 24 May is not relied upon in the

Particulars of Charge against Siddons and that he did not

appear and war not represented at the hearing I do not think I

can properly permit this evidence to be relied upon. In any

event, I do not think	it suffices to prove that Siddons, acting
in concert with any other person, engaged	in conduct of the
requisite kind.

I am not aware of any case in which conduct of the

kind relied upon by the applicant	in his case has been held to
have been engaged in for the purpose	of causing substantial

lore or damage to the business of a corporation. As I have

observed, the cares in which it has been found that conduct has

been engaged in for such purposes have mostly been cases in

which rome form of direct pressure, such as a black ban or a

picket line, har boen impored for the purpose of impeding the
operation of a corporation’s business. Of course, the fact

that conduct is novel does not exempt those who engage in it

from the operation of s.45D(1). But it is likely that an

applicant will havo difficulty in proving the purpose

proscribod by s.45D(1) where the re6pondent does not engage in
the more urual and direct forms of industrial action which cut

off or prejudice the supply of goods or services to the

applicant's business. This is particularly so because what

s.45D(1) requires is proof of engagement in conduct having the

purpose of causing substantial loss or damage. In Tillmanns

Butcheries (supra, at p.348) Deane J said that, in the context

of s.45D(1) substantial loss	or damage includes "loss	or damage
that is, in the circumstances, real	or of	substance and not
insubstantial or nominal".

Although I have not reached a concluded view on this

matter, I am inclined to think that the applicant has proved
that it has suffered substantial loss and damage. But this is

not rufficient. It must also prove that the respondents'

conduct was engaged in	for the purpose of causing such loss and
damage.

It should not be assumed from what I have written that

the rerpondentr' conduct has been lawful. It has not been.

They have been trerparring upon the	applicant's premises. If
they continue to do no,	it will be open to the applicant to

seek order8 enjoining them from committing further trespasses.

The argument, advanced	on behalf of the respondent Heffernan,
that he war entitled to go on to the	applicant's premises in

the exercire of what war said to be his right of free speech is

plainly untenable. The respondents have no right to go upon

any of the building sites upon which the applicant is constructing buildingr and if they continue to do so the law will not be impotent to give the applicant the protection to

which it is entitled.

The application is dismissed with costs.

I certify that this and the fifteen (15)

Morling.

Associate:

Counsel €or applicant:  M.H. Tobias Q.C.
with D.A. Cowdroy

instructed by:  Westgarth Baldick

counsel for third rerpondant:  S . Littlemore

with M.C. Brabazon

instructed by:  Geoffrey Edwards & Co.

There were no appearances for the f i r s t , second and fourth rerpondcntr

Date of Hearing:	8 June 1988
Date of Judgment:	16 June 1988