Concrete Constructions Pty Ltd v The Plumbers & Gasfitter - [1987] FCA 109

Re: CONCRETE CONSTRUCTIONS PTY LIMITED; CONCRETE CONSTRUCTIONS (NSW) PTY
LIMITED; SABEMO PTY LIMITED; LEIGHTON CONTRACTORS PTY LIMITED; CIVIL & CIVIC
PTY LIMITED; WHITE INDUSTRIES LIMITED; JENNINGS CONSTRUCTION LIMITED; BARCLAY
BROS PTY LIMITED and JOHN HOLLAND CONSTRUCTIONS PTY LIMITED
And: THE PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA; GLEN
BATCHELOR; ROLAND ROBSON; ALEXANDER SOMERVILLE; DONALD CAMPBELL and PAUL
WAKEHAM
Nos. NSW G51, G54, G55, G57-G60 and G64 of 1987
Trade Practices - Practice and Procedure
18 IR 68

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.

CATCHWORDS

Trade Practices - Secondary boycotts - Bans imposed upon items of work to be performed by building sub-contractors - Loss occasioned to head contractors - Applications for interlocutory injunctions - Whether purpose of bans was to cause loss to head contractors - Persons involved in the imposition of the bans - Dominant purpose for which conduct is engaged in -- Exercise of discretion - Mandatory order.

Practice and Procedure - Return of subpoenas - Objection to production of documents on ground of self-incrimination - Subpoena addressed to officer of body corporate - Availability of this ground in relation to incrimination of the body corporate - Possibility of prosecution of officer for criminal conspiracy - Whether offence of criminal conspiracy extends to agreements to perform acts not themselves criminal.

Trade Practices Act 1974, ss. 45D, 76, 78, 80.

Conciliation and Arbitration Act 1904, ss.4, 33, 119.

HEARING

SYDNEY

#DATE 13:3:1987

Counsel for the Applicants: Mr A B Shand QC with Mr D Cowdroy

Solicitors for the Applicants: Westgarth Baldick

Counsel for the First Respondent: Mr R Kenzie QC with Mr M Moore and Mr S Marshall

Counsel for the Second Respondent: No appearance

Solicitors for the Respondents: R L Whyburn & Associates

Counsel for the Applicants: Mr J L Trew QC with Mr B Oslington QC and Mr M F Holmes

Solicitors for the Applicants: Allen Allen and Hemsley

Counsel for the Respondents: Mr R Kenzie QC with Mr M Moore and Mr S Marshall

Solicitors for the Respondents: R L Whyburn & Associates

Counsel for the Applicant: Mr J L Trew QC with Mr B Oslington QC and Mr A Ashburner

Solicitors for the Applicant: Freehill, Hollingdale & Page

Counsel for the First, Third and Fourth Respondents: Mr R Kenzie QC with Mr M Moore and Mr S Marshall

Counsel for the Second Respondent: No appearance

Solicitors for the Respondents: R L Whyburn & Associates

Counsel for the Applicant: Mr J L Trew QC with Mr B Olsington QC and Mr A Ashburner

Solicitors for the Applicant: Freehill, Hollingdale & Page

Counsel for the Respondents: Mr R Kenzie QC with Mr M Moore and Mr S Marshall

Solicitors for the Respondent: R L Whyburn & Associates

Counsel for the Applicants: Mr J L Trew QC with Mr B Camilleri

Solicitors for the Applicants: Colin Biggers & Paisley

Counsel for the Respondents: Mr R Kenzie QC with Mr M Moore and Mr S Marshall

Solicitors for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1987] FCA 109
Decision Date: 13 MARCH 1987

CaseChat Overview and Summary

The case involved Concrete Constructions Pty Ltd and others, who were building contractors, suing The Plumbers & Gasfitters Union of Employees (P&G) and others. The contractors were alleging that the union and other parties had imposed bans on sub-contractors working on their sites, leading to financial losses. The Federal Court of Australia was asked to decide if the bans were lawful under trade practices legislation and if they were intended to cause harm to the contractors.

The court had to determine if the bans were secondary boycotts, which are generally illegal, and if the purpose of the bans was to cause financial harm to the contractors. The court also needed to consider the roles of the parties involved in imposing the bans and the dominant purpose behind their actions.

The court found that the bans were indeed secondary boycotts and that their primary purpose was to cause financial harm to the contractors. The court noted that the unions had lifted the bans before the legal proceedings began, but the court still issued mandatory orders to prevent future bans and to ensure the unions communicated to the affected companies that they would not enforce the bans going forward. The court also ordered the unions to pay the contractors' legal costs.

In summary, the court ruled in favour of the contractors, issuing injunctions against the unions to prevent them from imposing future bans and ordering them to notify affected companies that the bans had been lifted. The unions were also required to pay the contractors' legal costs.

Orders

Orders of the court

NSW G51 of 1987

Upon the applicants giving to the Court the usual undertaking as to damages THE COURT ORDERS THAT:

1. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Matthew Hall Pty Limited, Wormald International (Australia) Pty Limited or Nisbet & Durney (Contracting) Pty Limited to or for the building being constructed by the applicant known as Grosvenor Place, at corner George and Grosvenor Streets, Sydney.

2. The first respondent by itself, its servants and agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage in the conduct referred to in order (1);

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in the aforesaid conduct;

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the aforesaid conduct; or

(d) conspiring with any other person or persons to engage in the aforesaid conduct.

3. The first respondent cause to be delivered by 12.00 noon on Tuesday, 17 March, 1987 a letter addressed to each of the companies named in order (1) hereof informing each of those companies that the first respondent has now lifted, and will not in future seek to maintain, give effect to or enforce, any bans imposed before 13 March 1987 on the provision of goods or services by the addressee of that letter to or for the building referred to in order (1).

4. The costs of this application be the applicants' costs in the principal proceeding.

AND THE COURT DIRECTS THAT:

(I) Exhibits CC1, CC2 and CC3 be handed out to the solicitors for the applicants upon their undertaking to return the same to the Court if required.

(II) Exhibits CC4 and O be handed out to the solicitors for the respondents upon their undertaking to return the same to the Court if required.

(III) Exhibit D be returned to the Industrial Registrar of the Conciliation and Arbitration Commission.

(IV) The principal proceedings be listed for directions at 9.30 a.m. on Thursday, 26 March, 1987.

NSW No. G54 of 1987

Upon the applicant giving to the Court the usual undertaking as to damages THE COURT ORDERS THAT:

1. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Matthew Hall Mechanical and Electrical Engineering (Pty) Limited, J.M. Hargreaves & Son Pty limited or Bernard Hastie

(NSW) Pty Limited to or for the building being constructed by the applicant at 473 Victoria Avenue, Chatswood.

2. The first respondent by itself, its servants and agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage in the conduct referred to in order (1);

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in the aforesaid conduct;

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the aforesaid conduct; or

(d) conspiring with any other person or persons to engage in the aforesaid conduct.

4. The costs of this application be the applicants' costs in the principal proceeding.

AND THE COURT DIRECTS THAT:

(I) Exhibits S1 and S2 be handed out to the solicitors for the applicants upon their undertaking to return the same to the Court if required.

(II) The principal proceedings be listed for directions at 9.30 a.m. on Thursday, 26 March, 1987.

NSW No. G55 of 1987

Upon the applicant giving to the Court the usual undertaking as to damages THE COURT ORDERS THAT:

1. The first respondent, its servants and agents, and the second respondent the restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Nisbet & Durney

(Contracting) Pty Limited, Impact Air Pty Limited or Fire Protection Pty Limited to or for the building being constructed by the applicant at 127 Walker Street, North Sydney.

2. The first repondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Crawford and Samuel Pty Limited, Impact Air Pty Limited or Tyao Pty Limited to or for the building being constructed by the applicant at 56-70 Phillip Street, Sydney.

3. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Matthew Hall Mechanical and Electrical Engineering (Pty) Limited, Wormald International (Australia) Pty Limited or J.M. Hargreaves & Sons Pty Limited to or for the building being constructed by the applicant at corner Barrack and York Streets, Sydney.

4. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Bruce & Sowter Pty Limited or O'Donnel Griffin (a division of ANI Corporation) to or for the building being constructed by the applicant known as Telecom Plaza at 314-322 Pitt Street, Sydney.

5. The first respondent by itself, its servants and agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage in any of the conduct referred to in orders (1), (2), (3) or (4);

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in any of the aforesaid conduct;

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out any of the aforesaid conduct; or

(d) conspiring with any other person or persons to engage in any of the aforesaid conduct.

6. The first respondent cause to be delivered by 12.00 noon on Tuesday, 17 March, 1987 a letter addressed to each of the companies named in orders (1), (2), (3) and (4) hereof informing each of those companies that the first respondent has now lifted, and will not in future seek to maintain, give effect to or enforce, any bans imposed before 13 March 1987 on the provision of goods or services by the addressee of that letter to or for the building referred to in the relevant order.

7. The costs of this application be the applicant's costs in the principal proceeding.

AND THE COURT DIRECTS THAT:

(I) Exhibits L1, L2, L3, L4, L5, L6, L7, and L8 be handed out to the solicitors for the applicant upon their undertaking to return the same to the Court if required.

(II) The principal proceedings be listed for directions at 9.30 a.m. on Thursday, 26 March, 1987.

NSW G57 of 1987

Upon the applicant giving to the Court the usual undertaking as to damages THE COURT ORDERS THAT:

1. The first respondent, its servants and agents, and the second, third and fourth respondents and each of them be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Wormald International (Australia) Pty Limited, Brown & Moodie Pty Limited or Randwick Plumbing Pty Limited to or for the building being constructed by the applicant know as AMP Tower 2 at Bondi Junction.

2. The first repondent, its servants and agents, and the second, third and fourth respondents and each of them be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Environ Mechanical Services Pty Limited, Impact Air Pty Limited or Crawford and Samuel Pty Limited to or for the building being constructed by the applicant known as the Zenith building at Chatswood.

3. The first respondent, its servants and agents, and the second, third and fourth respondents and each of them be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Nisbet & Durney (Contracting) Pty Limited, Thos. Clark & Son Pty Limited or Guardian Fire Protection Company to or for the building being constructed by the applicant known as the OTC building at Elizabeth Street, Sydney.

4. The first respondent, its servants and agents, and the second third and fourth respondents and each of them be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by John R Keith Pty Limited or Environ Mechanical Services Pty Limited to or for the building being constructed by the applicant known as the MBF building at Bathurst Street, Sydney.

5. The first respondent by itself, its servants and agents, and the second, third and fourth respondents and each of them be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage in any of the conduct referred to in orders (1), (2), (3) or (4);

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in any of the aforesaid conduct;

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out any of the aforesaid conduct; or

(d) conspiring with any other person or persons to engage in any of the aforesaid conduct.

7. The costs of this application be the applicant's costs in the principal proceeding.

AND THE COURT DIRECTS THAT:

(I) Exhibits C1, C2, C3 and C4 be handed out to the solicitors for the applicant upon their undertaking to return the same to the Court if required.

(II) The principal proceedings be listed for directions at 9.30 a.m. on Thursday, 26 March, 1987.

NSW No. G58 of 1987

Upon the applicants giving to the Court the usual undertaking as to damages THE COURT ORDERS THAT:

1. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by David J Morris Contracting Pty Limited, Matthew Hall Mechanical and Electrical Engineers Pty Limited or Nisbet & Durney Pty Limited to or for the building being constructed by the applicant at Victoria Cross, North Sydney.

2. The first respondent by itself, its servants and agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage in the conduct referred to in order (1);

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in the aforesaid conduct;

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the aforesaid conduct; or

(d) conspiring with any other person or persons to engage in the aforesaid conduct.

4. The costs of this application be the applicants' costs in the principal proceeding.

AND THE COURT DIRECTS THAT:

(I) Exhibits W1 be handed out to the solicitors for the applicants upon their undertaking to return the same to the Court if required.

(II) The principal proceedings be listed for directions at 9.30 a.m. on Thursday, 26 March, 1987.

NSW No. G59 of 1987

Upon the applicant giving to the Court the usual undertaking as to damages THE COURT ORDERS THAT:

1. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by Wormald International (Australia) Pty Limited or Absolir Pty Limited to or for the building being constructed by the applicant at 130 Pitt Street, Sydney.

2. The first respondent by itself, its servants and agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage in the conduct referred to in order (1);

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in the aforesaid conduct;

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the aforesaid conduct; or

(d) conspiring with any other person or persons to engage in the aforesaid conduct.

4. The costs of this application be the applicants' costs in the principal proceeding.

AND THE COURT DIRECTS THAT:

(I) Exhibits J1, J2 and J3 be handed out to the solicitors for the applicants upon their undertaking to return the same to the Court if required.

(II) The principal proceedings be listed for directions at 9.30 a.m. on Thursday, 26 March, 1987.

NSW No. G60 of 1987

Upon the applicant giving to the Court the usual undertaking as to damages THE COURT ORDERS THAT:

1. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by John R Keith Pty Limited or Tyao Pty Limited to or for the building being constructed by the applicant at 1 Pacific Highway, North Sydney.

2. The first respondent by itself, its servants and agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage in the conduct referred to in order (1);

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in the aforesaid conduct;

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the aforesaid conduct; or

(d) conspiring with any other person or persons to engage in the aforesaid conduct.

4. The costs of this application be the applicants' costs in the principal proceeding.

AND THE COURT DIRECTS THAT:

(I) Exhibits BB1, BB2 and BB3 be handed out to the solicitors for the applicants upon their undertaking to return the same to the Court if required.

(II) The principal proceedings be listed for directions at 9.30 a.m. on Thursday, 26 March, 1987.

NSW No. G64 of 1987

Upon the applicant giving to the Court the usual undertaking as to damages THE COURT ORDERS THAT:

1. The first respondent, its servants and agents, and the second respondent be restrained, pending further order of the Court, from maintaining, giving effect to or enforcing any ban hitherto imposed on the provision of goods or services by G.J. Melis Pty Limited, Wormald International (Australia) Pty Limited or Wildridge & Sinclair Pty Limited to or for the building being constructed by the applicant at 33 Railway Crescent, Burwood.

2. The first respondent by itself, its servants and agents, and the second respondent be restrained from:

(a) aiding, abetting, counselling or procuring any person or persons to engage in the conduct referred to in order (1);

(b) inducing or attempting to induce a person or persons, whether by threat, promises or otherwise, to engage in the aforesaid conduct;

(c) being in any way, either directly or indirectly, knowingly concerned or party to an agreement to carry out the aforesaid conduct; or

(d) conspiring with any other person or persons to engage in the aforesaid conduct.

4. The costs of this application be the applicants' costs in the principal proceeding.

AND THE COURT DIRECTS THAT:

(I) Exhibits JH1, JH2 and JH3 be handed out to the solicitors for the applicants upon their undertaking to return the same to the Court if required.

(II) The principal proceedings be listed for directions at 9.30 a.m. on Thursday, 26 March, 1987.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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