Cosmelia Holdings P/L v Transport Workers Union of Australia
[1992] FCA 618
•19 Aug 1992
NOT FOR DISTRIBUTION
b\% I "-2
JUDGMENT No. ........ .m..mnm*oa m- C A T C H W O R D S
TRADE PRACTICES - secondary boycott - oil company supplying distributor -
employees of oil company refusing to load railcar for delivery to distributor - acting upon direction of union organiser - claim for interlocutory relief - cnteria - arguable case of contravention - balance of convenlence favouring grant of relief - relief granted.
Trade Practices Act 1974 s.80, s.45D
Flower Davles Wemco Ptv Ltd v. The Australian Builders Labourers' Federated
Un~on of Workers (WA Branch) (1987) ATPR 40-757 Industrial Enter~rises Ptv Ltd and Others v. Federated Storeman and Packers Union of Australia and Others (1979) ATPR 40-100.
COSMELIA HOLDINGS PTY LTD (ACN 009 065 696). HERIS PTY LTD. fACN 009 404 200) v. THE TRANSPORT WORKERS UNION OF AUSTRALIA. ALEX DALRYMPLE. GLEN ELLEMENT. KARL BRANDENBURG
WA 110 OF 1992
FRENCH J.
19 AUGUST 1992PERTH
IN THE FEDERAL COURT )
| I | OF AUSTRALIA 1 | |||
| ||||
| ||||
|
Applicants
and
THE TRANSPORT WOFPSERS
UNION OF AUSTRALIA
First Respondent
ALEX DALRYMPLE, GLEN E L L E M E N T , K A R L BRANDENBURG
Second Respondents
MJNUIE OF ORDER
JUDGE hh4KTNG ORDER: FRENCH J. DATE OF ORDER: 19 August 1992 WHERE MADE: PERTH THE COURT ORDERS THAT:
Upon the applicants undertahng that they will pay to any party restrained or affected
by the restraints imposed by thls interlocutory injunction or of any interim continuation thereof such compensation as the Court may in as discretion consider h the circumstances to be just such compensation to be assessed by the Court 01 in accordance with such directions as the Court may make and to be paid in such manner as the Court may direct:
1.
The respondent and each of them be restrained until midn~ght on Monday 24 August 1992 from engaging directly or Indirectly in the followmg conduct namely:
(a)
conduct in concert with another person or other persons that hinders or prevents the supply of petroleum products by BP Australia Limlted to either of Cosmelia Holdings Pty Ltd or Hens Pty Ltd in contraver~tion of s.45D of the Trade Practices Act 1974;
(b)
conduct in concert with another person or other persons that hinders or prevents the loading or other preparation for transport and the transport of petroleum products designated for supply by BP Australia Limited to either of Cosmelia Holdings Pty Ltd or
Heris Pty Ltd in contravention of the s a ~ d section; (c) induce any person whatever to withhold, in concert with another aiding, abetting, counselhng, procuring, inducing or attempting to person whatever, his or their labour from BP Australia Limited when and to the extent that such labour is, according to the ordinary course of practice or the particular dlrectlons of BP Austraha L~mited, requ~red to load or otherwise prepare for transport and to transport petroleum products designated for supply by BP Australia Lim~ted to e~ther of Cosrnelia Pty Ltd or Heris Pty Ltd.
A copy of the order and application and the affidavits in support and the
transcript of Mr Lumb's evldence to be served on each of the
Respondents as soon as possible.The partles have liberty to apply at short notice to vary or discharge the order.
The matter be re-11sted for further direct~ons at 9.30am on 24 August 1992. The costs of the motion for interlocutory relief be reserved.
NOTE: Settlement and entry of Orders is dealt with in Order 36 of the
Federal Court Rules.
IN THE FEDERAL COURT )
OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) INDUSTRIAL DMSION
) No. WA 110 of 1992 B E T W E E N :
COSMELIA HOLDINGS PTY LTD (ACN 009 065 696), HERIS PTY LTD, (ACN 009 404 200)
Applicants
and
THE TRANSPORT WORKERS
UNION OF AUSTRALIA
First Respondent
ALEX DALRYMPLE, GLEN
ELLEMENT, KARL
BRANDENBURG
Second Respondent
I
CORAM: FRENCH J.
19 AUGUST 1992EX TEMPORE REASONS FOR JUDGMENT ON CLAIM FOR INTERLOCUTORY RELIEF
An application has been filed today in which Cosmelia Holdings Pty Ltd
fuels, seek orders against the Transport Workers Union of Australia, an officer of the and Heris Pty Ltd, two companies involved in the supply of petroleum and related Union, Karl Brandenburg, and two employees of BP Australia Ltd, Alex Dalrymple and Glen Ellement. The applicants seek urgent interlocutory relief in respect of an alleged secondary boycott and the matter was listed for hearlng at 3pm today for that
| I | purpose. It is alleged by way of affidavits illed with the application that the Union |
| I I | |
| and Brandenburg, In concert with the two BP employees, who are ev~dently responsible for the loading of fuel on railcars to be supplied to Cosmelia and Heris, have engaged in conduct designed to prevent the supply of fuel to them with a view to | |
| inflicting loss or damage on them in order to serve the ultimate purpose of requiring | |
| Cosmelia to employ only members of the Union. The conduct of Union, its officer | |
| and the two BP employees is said to be in contravention of s.45D of the Trade Practices Act 1974. |
The claim for interlocutory relief came on ex parte, in the sense that
neither the Union nor the other named respondents were represented. I was informed by senior counsel for the applicants that attempts were made today to
communicate with the Union by letter and telephone. I have been shown copies of letters, both bearing today's date, warning the Union of impendmg legal action and, in
the case of the second letter, that an appointment had been made at 3pm for the purposes of seeking injunctive relief. Senior counsel has undertaken to have filed an affidavit from his instructmg solicltor confirming the facsimile transmission of these letters to the ofice of the Union and a follow-up telephone call and conversation with
a receptionist at the office of the Union in which it was confirmed that the facsimile
had been received. At the commencement of this afternoons hearing I asked the applicants
to communicate with solicitors normally instructed for the Union, Messrs. Dwyer Durack, and stood the matter down to enable that to be done. In the event, the
Court was informed that Messrs. Dwyer Durack had been in touch with the Union,
that they had no instructions to appear and that the Union was "sorting the matter out itself'. On that basis, although still in effect treating this as an ex parte hearing, I
was prepared to proceed to deal with it.
The clalm is one for interlocutory rehef, and invokes the power
conferred on the Court by sub-s.80(2) of the Trade Practices Act 1974 which provides
that:"Where in the oplnion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under sub-section (l)".
Sub-section 80(1) authorises the grant of injunctive relief to prevent contraventions or attempted contraventions or related conduct in connection with contraventions of the Trade Practices Act 1974. The proceedings at thls stage, being for interlocutory relief,
the Court is not required to decide finally any issue m the case. Views which are expressed in the course of these reasons are for the purpose only of deciding the claim for that relief. At the final hearing the admissibility of evidence will be regulated by different rules. The applicants' evidence may be different and cast in a different light, partlcularlp having regard to the fact that no representative of the respondents is present here today. The criteria for the grant of interlocutory relief require the Court to be sat~sfied that there is a serious question to be tried and that the balance of convenience favours the grant of that rellef. Those crlteria are not Independent. Where there is a strong case made out on the materials before the
Court the balance of convenience in favour of the grant may be less than where the
case is weaker.
Before turning to the provisions of s.45D, it is necessary to refer to the
affidavit material which has been placed before the Court. The affidavit of Gany Patrick Connell, who is a director of both the applicant companies, indicates that
Cosmel~a, which trades as Kalfuel, 1s a distributor for BP products in the Kalgoorlie
area. Heris trades as Westfuel and is a distributor of BP products in the Perth metropolitan area and surrounds. Both companies operate under a dlstributorshlp agreement with BP. In the course of their operations they employ 18 drivers to transport petroleum, diesoline, kerosene, lubricants and associated petroleum products to their clients. Kalfuel's clients include mlning companies in the Kalgoorlie and Leinster area. One of those is Western Mining Corporation, which alone receives
270,000 litres of petroleum products daily. Kalfuel also delivers to State
lnstrumentalities such as the State Energy Commission, the Metropolitan Water
Supply and varlous hospitals m the Kalgoorlie region. Westfuel's cllents include
various BP retailers in the Perth metropolitan area as well as individuals receiving deliveries of kerosene for heating purposes. Westfuel has approximately 22,000
customers in Perth in that category. Both companies are party to the Transport
Workers (Oil Agents/Contractors) Award 1991. That Award provides for preference of employment to members of the Union. Kalfuel obtalns the bulk of its petroleum products from BP'S termlnal at Kewdale. These products are transported by rail from Kewdale to Kalgoorlie. It
receives some 800,000 to 1 mllllon litres per day. There 1s evidence, partly oral, from Adrian Lumb, the operations manager for BP In Western Australia and the Northern
Territory, and partly in the affidavit evidence of Connell, that between ten and twelve
railcars each day are needed to travel from the BP Kewdale terminal to Kalgoorlie to satisfy Kalfuel's daily requuements. Westfuel gets its petroleum products directly from the BP terminal at Kewdale and some of them are delivered to Westfuel's depot
at Canning Vale. For Westfuel to obtain its petroleum products from BP, its drivers
require access to BP'S Kewdale temnal .
On 11 August 1992, Karl Brandenburg, who is an organiser with the
Unlon, advised Connell that he wanted to enlist Kalfuel's drivers as members of the
Union. The conversation with Brandenburg took place at Kalfuel's depot at West
Kalgoorlie Road in Kalgoorlie. Connell told Brandenburg that he could speak to any
of his drivers regarding membership of the Union. H e cannot recall whether any approaches were made following that permission. There was no mention during the conversation of any other difficulties between the Union and Kalfuel. Westfuel's drivers were not discussed. At about 6 o'clock on 17 August, Brandenburg
telephoned Connell and asked for a full list of the names and addresses of Kalfuel's truckdrivers. H e dld not say why he wanted the 1st. Connell refused him access to it.
On Connell's evidence Brandenburg said, "if this is the way you want to play it we will sort it out". Connell took this to mean that the applicants would be lnvolved in industrial trouble with the Unlon.
In an affidavit sworn by Anthony Coutas, who 1s transport manager for
BP in Western Austlalia, he says that at about 6.30 pm on the same day, 17 August,
he was telephoned by Brandenburg who advised h m that a ban had been placed by
the Union on deliveries of BP petroleum products to businesses associated w~th Gary
Connell. Coutas telephoned Lumb to advise him of the ban at about 6.45pm on that
day. What happened next was in set out in an aEdavit by Gary Boland, who is a
director of Heris, the company that operates Westfuel. At about 9.45am on 18
August, Brandenburg telephoned him and advised him that he would like to inspect
the records of Kalfuel that morning. Boland arranged to meet with him and informed Connell of the conversation. In the haste which no doubt attended the preparation of
the papers for this application, Boland's role wth respect to ICalfuel was not made clear. I take it, however, for present purposes, that he was closely associated with Connell in the affairs of both Kalfuel and Westfuel. At about 11.30am on the same
day, Brandenburg and Glen Sterle, another officer of the Union, attended at the
offices of the applicants. Brandenburg gave Boland a card Identifying him as an Organiser for the Transport Workers Union of Australia, Western Australian Branch.
He provided Boland with a letter which stated that the applicants would incur a fine if
the Union was prevented from inspecting the time and wages records of Kalfuel. The
letter was in the following terms:
"Dear Sir Please be advised that we would like to Inspect your T ~ m e and Wages records at a time to be agreed between us but no later than 72 hours from the date of posting of thls letter.
Yours sincerely
J.J. O'Connor"
It bore the following note:
"Pursuant to the Industrial Relat~ons Act (1979) and the Industrial Relations Act 1988 it is an offence to refuse to allow inspection of these documents. Offenders are liable to incur fines not exceeding $1,000.00 for failure to produce."
Brandenburg and Sterle asked Boland for photocopies of the Time and Wages
records of Kalfuel but he refused their request on advice from the Australian Petroleum and Distributors Association. He allowed them to Inspect the records and
took them to a separate room in which the Company paymaster, Kerry Keath, made
all the time and wages records ava~lable for their petusal. The story is then taken up in Adrian Lumb's affidavit. He says that at
12.30pm on 18 August Brandenburg and Sterle, the latter also known to him as a
TWU Organiser, advised Coutas and himself that the bans had been imposed on
Connell's companies for the following reasons:
(a) failure to provide safety boots to driving
personnel; (b) drivers not belng members of the T W , and (c)
non-compliance with award wages and allowances at Kalgoorlie.
These Items refer back to a conversatlon that Brandenburg had ulth Connell
follow~ng the inspection of the pay records which I have referred to earher. In the
course of that conversatlon, according to Connell, Brandenburg sald to him "what are you going to do about the boots?". He believed Brandenburg to be refernng to an
issue raised about 3 years previously by an employee of Westfuel called Wilkinson
who was a shop steward for the TWU. W~lkinson had requested in 1989 that
Westfuel supply each driver with boots. Connell had declined Wilkinson's request on the basis of his belief that he was not legally obliged to supply any boots to Westfuel's drivers. In the event, each of Westfuel's drivers had agreed that boots were not
requited by them. Other than the conversation in 1989 with Wilkinson and the conversation with Brandenburg on 18 August 1992, the Issue of boots had not been raised with the applicants. In relation to the question of Union membership Connell says that he has been ~nformed by Coutas that the Union has complained that Kalfuel's drivers are not members of the U n ~ o n and that Kalfuel has not complied
w~th the Award. Connell says that Westfuel's drivers are all members of the Union
but none of Kalfuel's drivers are. H e had left it to the Kalfuel drivers to decide for themselves whether or not they wlsh to join it. The complaint of non-compliance with Award wages and allowances at Kalgoorlie made in the conversation between
Brandenburg and Lumb is referred to by Connell in his affidavit. H e was aware that
some of his drivers who work for Kalfuel start work at about 6am. They had
arrangement. They had sought to start work at about 6am in order that they could approached him regard~ng their starting times and sought his agreement to that finish work prior to the onset of the hottest part of the day and so they could be with then famllies as soon as then children had finished school. He says that if the early start~ng tlmes are a breach of the Award, he will rectilj the s~tuation and makes an undertaking to the Court to that effect. It has been drawn to hls attention by the Union that he may not be complying with provis~ons of the Award for providing a site
and local~ty allowance and a meals allowance and is currently seelung advlce from the
Australian Petroleum Distnbutors Association in that regard. Again, he says that if there is any breach of the Award by Kalfuel he would Immediately cause that breach to be rectified and offers that promise by way of undertaking. The allegation of non- compliance with the Award, he says, has been so vague and lacking in particularity that he is unable to inform the Association and his legal adwsors of the exact nature of the complaint. Further, he has never recelved a complaint from any Kalhel driver that Kalfuel has not complied with the Award, nor any notice from the Union regarding any alleged complaints, nor any notice relating to the ban ~mposed by the Union.
When Brandenburg raised these matters of failure to provlde boots,
non-membership of the Union and non-compliance with Award wages and allowances at Kalgoorlie, Lumb told him that none of those issues involved BP and that it would be continuing business as normal. He also advised Brandenburg that BP would not
be observ~ng the ban and would not participate m preventing Westfuel or Kalfuel from going about their ordinary business.
At 1.30pm on 18 Auyst, Coutas and Lumb d~rected a BP employee,
Glen Ellement, who 1s a member of the Union, to use his tractor to load railcars for
Kalgoorlie. The railcars were to carry petroleum products for Kalfuel. Ellement
refused to act on the Instructions and advised that he had been told not to perform
those duties by Brandenburg. He used words to the following effect:
"I cannot because of those guys over there".
Lumb beheves that Ellement was referring to Brandenburg and Sterle who were
present at the time. H e advised Ellement that he was in breach of his employment
contract with BP and repeated the instruction, but he still refused to comply.
At 4.20 pm on the same day, Lumb says he instructed Alex Dalrymple, also a member of the TWU and an employee of BP, to load and deliver fuel for delivery to Westfuel at Canning Vale. Dalrymple refused to comply with the instruction. The
instruction was repeated, but he again refused to comply. Dalrymple did not proffer a
reason why he could not comply, other than to say words to the effect of "cannot load the fuel". As a result of the refusal of BP'S employees to comply wlth the instructions, Westfuel and Kalfuel have received no supplies of petroleum products from BP since
the evening of 17 August 1992.
Lumb gave supplementary oral evidence in whch he referred to a
conversation with Brandenburg and Sterle following Ellement's refusal to load the
railcars. Brandenburg said he would stop all railcars because he could not d~st~nguish
those loaded for Kalgoorlie and other destinations. Lumb then pointed out to Brandenburg that a distinction could be drawn between railcars bound for Kalgoorlie and Merredin on the one hand and other destinations because the former use standard gauge rail whereas the latter travelled on narrow gauge rail. Brandenburg said he would check with the Union on the position. H e made a telephone call from his car and advlsed Lumb that O'Connor, the Union secretary, had confirmed that no
railcar should be loaded
BP loads railcars wlth fuel for both itself and Ampol. It supplies
Merred~n and Kalgoorlie on standard gauge rail and supplies Katanning, Northam, Moora and Carnamah on narrow gauge. The Great Southern Region is seniced from the Katanning railyard. Connell says that the applicants' supply of their product will be totally exhausted by close of trading today or at the very latest by tomorrow if the
bans continue in effect. The consequences of their inability to supply their customers
would be as follows:
1. they wlll be in breach of franchise agreements wth BP;
2. Kalfuel will be unable to supply a number of major mining companies in Kalgoorlie and that may lead in particular to Western Wning Corporation, being unable to continue its operations in Kalgoorlie, Kalfuel being the only supply that has the capacity to supply Western Mining;
3. Kalfuel would be unable to supply a number of public instrumentalities, including the Metropolitan Water Supply, hospitals and the State Energy Commission;
4. Kalfuel's goodwill is and will be irreparably damaged by the ban;
5. Kalfuel 1s by far the major contributor of petroleum products in Kalgoorlie. Connell estimates that it supplies 60% to 70% of Kalgoorlie's petroleum products. The ban, if maintauled, would have serious ramifications for the Kalgoorlle community.
6. Westfuel would lose goodwill with many of the 22,000 customers to whom it supplies kerosene, a great number of whom are elderly people. Its ability to obtain supplies of petroleum products 1s affected. It supplies in bulk to customers such as Montrose Hospltal m Claremont, vanous manufacturing plants and government lnstrumentalities including the Department of Corrections, the Water Authority and Fremantle Port Authority.
7. Connell contends that if the appl~cants' customers cannot obtain their petroleum products from the apphcants, alternative sources of supply w~ll be sought by them, seriously damaging the profitability and viability of the applicants' operations in t h ~ s
State. The cost of each days operations to the applicants is about $22,000 and they stand, he says, to lose tens of thousands of dollars each day as long as the ban contmues.
8. A number of essential community s e ~ c e s in Kalgoorl~e, Leinster and the Perth Region wlll be affected by the ban. The Leinster townsite would be without power as Kalfuel supplies the Leinster power house. Kalfuel also supplies a number of other remote mining sites which rely on petroleum for their power supplies. Those power supplies are used for personnel camps and mining operations.
9. Nearly all Nullarbor sheep stations are supplied by Kalfuel and Forrest Airfield located m the mlddle of the Nullarbor Plain is also supplied by Kalfuel. Most airfield aviation s e ~ c e s would be affected by the ban.
Connell points out also, and thls is confirmed by Lumb's evidence, that railcars which
are loaded durlng the daylight hours ordinarily leave between 4pm and 7pm and get
into Kalgoorlie in the early hours of the morning - about 7am.
The conduct of the Union, its officer, Brandenburg, and the two
employees, Glen Ellement and Alex Dalrymple, is said to contravene s.45D of the Trade Practices Act 1974 and also to constitute various common law torts. It is not
necessary for present purposes to go beyond the provisions of s.45D. The applicants
rely, a t this stage, spec~fically upon sub-~.45D(l)(b)(i). The relevant parts of the sub- section (1) provide:
"45D(1) Subject to t h ~ s section, a person shall not, in concert wlth a second person, engage m 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), ... where-
(b) the fourth person 1s a corporation and the conduct is engaged in for the purpose, and
would have or be likely to have the effect, of
causing-
(0
substantial loss or damage to the business of the fourth person or of a body corporate that is related to that person;"
Reference must also be made to sub-s.45D(2) which provides that:
"(2) Paragraph 4F(b) does not apply in relation to sub- section (1) or (1A) of thls section but a person shall be deemed to engage in conduct for a purpose mentioned m that sub-section if he engages in that conduct for purposes that include that purpose!'
That sub-section has the effect of excluding the limitation that where purpose is
mentioned in the Act it relates to a substantial purpose. Sub-section 45D(5) is also
relevant for present purposes in relation to the role of the Union. It provides that: "If two or more persons (in this sub-section referred to as
the "participants") each of whom is a member or officer of
the same organization of employees (being an organization that exists or 1s carried on for the purpose, or for purposes that include the purpose, of furthering the interests of its members in relation to their employment) engage in conduct in concert with one another, whether or not the conduct is also engaged in in concert with other persons, the organization shall be deemed for the purposes of this Act to engage in that conduct in concert with the participants, and so to engage m that conduct for the purpose or purposes for whlch that conduct is engaged in by the partic~pants, unless the organization establishes that it took all reasonable steps to prevent the participants from engaging in that conduct!'
In this case it is put that s.45D applies to Brandenburg and Ellement as the first and second person acting in concert preventing the supply of goods or services by BP, the third person, to Cosmelia the fourth person and that that conduct is engaged in for the purpose and would be likely to have the effect of causlng
substantial loss or damage to the business of Cosmelia. In relation to ISeris it is said to be the case that Brandenburg 1s engaglng in conduct with Dalrymple which is to like effect. By virtue of sub-s.45D(5) in each of those cases, having regard to role of
the Union itself there is plainly an arguable case that the Union is deemed to be
engaging in conduct in concert with its officer.
The nature of the purpose that must be established to show a
contravention of the section has been addressed in a number of cases and I reviewed some of those in Flower Davies Wemco Ptv Ltd v. The Australian Builders Labourers' Federated Union of Workers (WA Branch) (1987) ATPR 40-757 at 48,206:
"The purpose which attracts the application of sub- sec.45D(l)(b) has been descr~bed as the "operative
subjective purpose of those engaging in the relevant conduct in concert". It is to be identified "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!' Tillmanns Butcheries Pty Ltd v. Aus.tralasian Meat Industry Employees' Union (supra ATPR at p.18,500; AL.R. at pp 382-383 pr Deane J.; Leon Laidely Pty Ltd v. Transport Workers Union of Australia (1980) ATPR 40-147 at pp. 42,129,130; (1980) 28 A.L.R. 129 at p.141 per Lockhart J.; Chevron Transport Corporation v. Seamens Union of Australia 6r Ors (1983) ATPR 40-383 at p.44,522; (1983) 49 A.L.R. 180 at p.184 per Beaumont J.
It has been said that the relevant purpose under subsec. 45D(l)(b) may not be the ultimate purpose for which the participants acted m concert."
I am satisfied on the evidence presently before the Court that there is an arguable
case that there has been a contravention of s.45D on the basis of the applicat~on of that section to the conduct of Messrs. Brandenburg, Dalrymple and Ellement and to the deemed conduct of the Union. On the material before the Court the balance of convenience plainly favours the grant of interlocutory relief. This 1s not, on the face of it, a case which involves a dispute as to terms of employment of employees of BP and in that respect the defence of legitimate industrial action available under s.45D(3) would not appear to be open. I emphasise that in all I have said by way of recounting the evidence and my conclus~ons about the applicat~on of s.45D to the conduct complained of, that none of the findings of fact or observations about the applicat~on
of the section are to be taken as anything other than provisional. Th~s is an interlocutory applicat~on, the respondents are not represented in Court and the
evidence at a final hearing may well turn out differently. Other evidence may be
trial. adduced or evidence rel~ed upon here may be excluded if and when the matter gets to An undertaking has been offered by' both companies and 1s placed before the Court in the usual terms. A minute of proposed orders has also been
handed up. That mlnute is nlodelled upon the form of order made by Lockhart J. in
Industr~al Enterprises Pht Ltd and Others v. Federated Storeman and Packers Union
of Australia and Others (1979) ATPR 40-100 as set out at pp.17,997 and 17,998. I
am satisfied that the form of order proposed is appropriate, subject of course to the usual limitations of hberty to apply. I would vary the form of the minute to the extent that I will impose a time l~mit after which the Court will have to be persuaded to extend the order.
I certify that this and the preceding
fifteen (15) pages are a true copy of
the Ex tempore Reasons for Judgment ofhis Honour Justlce French.
Date: I q ~~t 1992. Supplementarv Reasons for Judment Given 27 Aumt 1992
Since the dellvery of the above ex tempore reasons for judgment it has
come to my notice that I overlooked the effect of the decislon of the High Court in Actors and Announcers Equitv Assoclation of Austral~a v. Fontana Films Ptv Ltd
(1982) 150 CLR 169 in which it was held that sub-s.45D(5) of the Trade Practices Act
1974 1s not valid. To the extent that the applicants' case against the Union relied
upon that provision it could not be supported. There was nevertheless evidence of conduct on the part of the Union Secretary whlch was capable of attribution to the Union for the purposes of the Act. Whether that conduct would have been so
attributed and if so, whether it would have amounted to conduct of the Un~on in concert with its officer Brandenburg and Messrs. Ellement and Dalrymple is not now necessary to conader. The injunction has lapsed and the case to all intents and purposes is settled.
Counsel for the Applicants: Mr C. Zelestis Q.C.
Solicitors for the Applicants: Kott Gunning
Date of Hearing: 19 August 1992
Date of Judgment: 19 August 1992
0