CSR Ltd v Chuwar Transport Pty Ltd

[1996] FCA 786

CATCHWORDS

TRADE PRACTICES - interlocutory injunction sought to restrain alleged infringement of s 45(2)(a)(i) of the Queensland Competition Code constituted by intermittent action by owner/drivers in an ongoing industrial dispute with the applicant pre-mixed concrete manufacturer - whether the owner/drivers are mutually competitive in relation to the supply of concrete cartage services to the applicant - necessity for a section of the public or at least the person to whom the services are supplied to have some economic benefit to gain from the activities of the service providers before they will be mutually competitive if s 4D(1)(a) the Trade Practices Act (incorporated into the Queensland Competition Code) is to be satisfied.

INTERLOCUTORY INJUNCTION - discretion - relevance of the special character of proceedings under the Trade Practices Act and the Queensland Competition Code, being statutes directed to the protection or enhancement of the public interest in the maintenance and enhancement of competition in trade and commerce, as a consideration to be taken into account when assessing the strength of the applicant’s case and also weighing the balance of convenience.

Competition Policy Reform (Queensland) Act 1996 - ss 4, 5, 8, 18 and 21
Competition Policy Reform Act 1995 (Cth) - s 26
Queensland Competition Code - ss 45
Trade Practices Act 1974 (Cth) - ss 4D, 45, 80 and 150D

Cases Considered

Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Livestock Corporation (1980) 44 FLR 455
Ricegrowers’ Co-operative Ltd v Howling Success Australia Pty Ltd (1987) ATPR 40-778
Tytel Pty Ltd v Australian Telecommunications Commission (1986) 67 ALR 433
World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181

Case Distinguished

Gallagher v Pioneer Concrete (NSW) Pty Limited (1993) ATPR 41-216

CSR LIMITED v CHUWAR TRANSPORT PTY LTD & ORS
QG 148 OF 1996

DRUMMOND J
BRISBANE
29 AUGUST 1996

FEDERAL COURT OF AUSTRALIA          No. QG 148 of 1996
QUEENSLAND DISTRICT REGISTRY         
GENERAL DIVISION  

BETWEEN:CSR LIMITED

(ACN 000 001 276)

Applicant

AND:CHUWAR TRANSPORT PTY LTD

(ACN 066 074 804)

First Respondent

AND:PETER ROBERT TOWNSLEY

Second Respondent

AND:G & S SPELLEKEN PTY LTD

(ACN 070 124 113)

Third Respondent

AND:MEADOWFORD PTY LTD

(ACN 010 921 767)

Fourth Respondent  

AND:D J  RYAN (QLD) PTY LTD

(ACN 924 491 21)

Fifth Respondent   

AND:WADE CONCRETE PTY LTD

(ACN 064 498 595)

Sixth Respondent   

AND:RIDGEHAM PTY LTD

(ACN 069 416 471)

Seventh Respondent 

AND:ERIC BEZWERCHNY

Eighth Respondent  

AND:WAWSTON PTY LTD

(ACN 068 387 477)

Ninth Respondent

AND:DEPTFIELD PTY LTD

(ACN 010 341 045)

Tenth Respondent   

AND:REALYNX PTY LTD

(ACN 053 837 095)

Eleventh Respondent

AND:SAMLYN NOMINEES PTY LTD

(ACN 006 448 531)

Twelfth Respondent 

AND:JULLARRY PTY LTD

(ACN 067 936 838)

Thirteenth Respondent   

AND:BENARCO PTY LTD

(ACN 070 120 484)

Fourteenth Respondent   

AND:R TERRY MILLS

Fifteenth Respondent

AND:HENTMERE PTY LTD

(ACN 010 642 074)

Sixteenth Respondent

AND:MYCREST PTY LTD

(ACN 010 967 049)

Seventeenth Respondent

AND:DJ & DA GAUNT PTY LTD

(ACN 069 856 613)

Eighteenth Respondent   

AND:GEMGLEN PTY LTD

(ACN 525 511 452)

Nineteenth Respondent   

AND:SEVERSON PTY LTD

(ACN 069 498 086)

Twentieth Respondent

AND:JEDDARA PTY LTD

(ACN 068 851 669)

Twenty-First Respondent 

AND:DALES HAULAGE PTY LTD

(ACN 065 922 321)

Twenty-Second Respondent

AND:RAIJUN PTY LTD

(ACN 088 985 900)

Twenty-Third Respondent 

AND:MJ & JOANNE KULCZYCKI PTY LTD

(ACN 069 977 873)

Twenty-Fourth Respondent

AND:M & K ON SITE REPAIRS PTY LTD

(ACN 067 972 365)

Twenty-Fifth Respondent

AND:KEVIN COLBURN

Twenty-Sixth Respondent 

AND:STUART MICHAEL BRADY

Twenty-Seventh Respondent

AND:J & B CLIMPSON PTY LTD

(ACN 068 212 215)

Twenty-Eighth Respondent

AND:RODNEY GALLAWAY COLBURN

Twenty-Ninth Respondent 

AND:MCNICOL CONTRACTORS PTY LTD

(ACN 070 057 411)

Thirtieth Respondent

AND:MAJAY PTY LTD

(ACN 083 035 763)

Thirty-First Respondent 

AND:PETER CARR

Thirty-Second Respondent

AND:MICHAEL JOHN WITCHARD

Thirty-Third Respondent 

AND:MAINRICE PTY LTD

(ACN 060 085 812)

Thirty-Fourth Respondent

AND:DAWNBERRY PTY LTD

(ACN 060 530 412)

Thirty-Fifth Respondent 

AND:JAYSBOROUGH PTY LTD

(ACN 010 783 907)

Thirty-Sixth Respondent 

AND:BEEAN PTY LTD

(ACN 069 426 208)

Thirty-Seventh Respondent

AND:MANORINA (QLD) PTY LTD

(ACN 058 863 095)

Thirty-Eighth Respondent

AND:EAN JOHN MACKIE

Thirty-Ninth Respondent 

AND:D W S  INDUSTRIES PTY LTD

Fortieth Respondent

AND:PREPCOOP PTY LTD

(ACN 069 552 129)

Forty- First Respondent

AND:RIDGARI PTY LTD

(ACN 054 199 352)

Forty-Second Respondent 

AND:STANVIEW PASTORAL CO PTY LTD

(ACN 010 454 958)

Forty-Third Respondent  

AND:C & M BEAR PTY LTD

(ACN 011 041 768)

Forty-Fourth Respondent 

AND:LA & RL HARRIS PTY LTD

(ACN 009 975 991)

Forty-Fifth Respondent  

AND:FLETCHER CORP PTY LTD

(ACN 067 979 088)

Forty-Sixth Respondent  

AND:ALPHA WALL PTY LTD

(ACN 071 260 798)

Forty-Seventh Respondent

AND:ROBBAN INVESTMENTS PTY LTD

(ACN 069 437 761)

Forty-Eighth Respondent 

AND:BR & CM DAVISON PTY LTD

(ACN 009 848 879)

Forty-Ninth Respondent  

AND:CONTROY PTY LTD

(ACN 068 037 525)

Fiftieth Respondent

AND:FERRADALE PTY LTD

(ACN 067 481 654)

Fifty-First Respondent  

AND:ALFWAY PTY LTD

(ACN 067 481 618)

Fifty-Second Respondent 

AND:OARLEY PTY LTD

(ACN 071 819 013)

Fifty-Third Respondent  

MINUTES OF ORDERS

JUDGE MAKING ORDER:         Drummond J
DATE OF ORDER:              29 August 1996

WHERE MADE:                 Brisbane

THE COURT ORDERS THAT:

1.       The application for interlocutory relief is dismissed.

2.       The applicant pay the respondent’s costs of and incidental to the application.

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

FEDERAL COURT OF AUSTRALIA          No. QG 148 of 1996
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION

BETWEEN:CSR LIMITED

(ACN 000 001 276)

Applicant

AND:CHUWAR TRANSPORT PTY LTD

(ACN 066 074 804)

First Respondent

AND:PETER ROBERT TOWNSLEY

Second Respondent

AND:G & S SPELLEKEN PTY LTD

(ACN 070 124 113)

Third Respondent

AND:MEADOWFORD PTY LTD

(ACN 010 921 767)

Fourth Respondent  

AND:D J  RYAN (QLD) PTY LTD

(ACN 924 491 21)

Fifth Respondent   

AND:WADE CONCRETE PTY LTD

(ACN 064 498 595)

Sixth Respondent   

AND:RIDGEHAM PTY LTD

(ACN 069 416 471)

Seventh Respondent 

AND:ERIC BEZWERCHNY

Eighth Respondent  

AND:WAWSTON PTY LTD

(ACN 068 387 477)

Ninth Respondent

AND:DEPTFIELD PTY LTD

(ACN 010 341 045)

Tenth Respondent   

AND:REALYNX PTY LTD

(ACN 053 837 095)

Eleventh Respondent

AND:SAMLYN NOMINEES PTY LTD

(ACN 006 448 531)

Twelfth Respondent 

AND:JULLARRY PTY LTD

(ACN 067 936 838)

Thirteenth Respondent   

AND:BENARCO PTY LTD

(ACN 070 120 484)

Fourteenth Respondent   

AND:R TERRY MILLS

Fifteenth Respondent

AND:HENTMERE PTY LTD

(ACN 010 642 074)

Sixteenth Respondent

AND:MYCREST PTY LTD

(ACN 010 967 049)

Seventeenth Respondent

AND:DJ & DA GAUNT PTY LTD

(ACN 069 856 613)

Eighteenth Respondent   

AND:GEMGLEN PTY LTD

(ACN 525 511 452)

Nineteenth Respondent   

AND:SEVERSON PTY LTD

(ACN 069 498 086)

Twentieth Respondent

AND:JEDDARA PTY LTD

(ACN 068 851 669)

Twenty-First Respondent 

AND:DALES HAULAGE PTY LTD

(ACN 065 922 321)

Twenty-Second Respondent

AND:RAIJUN PTY LTD

(ACN 088 985 900)

Twenty-Third Respondent 

AND:MJ & JOANNE KULCZYCKI PTY LTD

(ACN 069 977 873)

Twenty-Fourth Respondent

AND:M & K ON SITE REPAIRS PTY LTD

(ACN 067 972 365)

Twenty-Fifth Respondent

AND:KEVIN COLBURN

Twenty-Sixth Respondent 

AND:STUART MICHAEL BRADY

Twenty-Seventh Respondent

AND:J & B CLIMPSON PTY LTD

(ACN 068 212 215)

Twenty-Eighth Respondent

AND:RODNEY GALLAWAY COLBURN

Twenty-Ninth Respondent 

AND:MCNICOL CONTRACTORS PTY LTD

(ACN 070 057 411)

Thirtieth Respondent

AND:MAJAY PTY LTD

(ACN 083 035 763)

Thirty-First Respondent 

AND:PETER CARR

Thirty-Second Respondent

AND:MICHAEL JOHN WITCHARD

Thirty-Third Respondent 

AND:MAINRICE PTY LTD

(ACN 060 085 812)

Thirty-Fourth Respondent

AND:DAWNBERRY PTY LTD

(ACN 060 530 412)

Thirty-Fifth Respondent 

AND:JAYSBOROUGH PTY LTD

(ACN 010 783 907)

Thirty-Sixth Respondent 

AND:BEEAN PTY LTD

(ACN 069 426 208)

Thirty-Seventh Respondent

AND:MANORINA (QLD) PTY LTD

(ACN 058 863 095)

Thirty-Eighth Respondent

AND:EAN JOHN MACKIE

Thirty-Ninth Respondent 

AND:D W S  INDUSTRIES PTY LTD

Fortieth Respondent

AND:PREPCOOP PTY LTD

(ACN 069 552 129)

Forty- First Respondent

AND:RIDGARI PTY LTD

(ACN 054 199 352)

Forty-Second Respondent 

AND:STANVIEW PASTORAL CO PTY LTD

(ACN 010 454 958)

Forty-Third Respondent  

AND:C & M BEAR PTY LTD

(ACN 011 041 768)

Forty-Fourth Respondent 

AND:LA & RL HARRIS PTY LTD

(ACN 009 975 991)

Forty-Fifth Respondent  

AND:FLETCHER CORP PTY LTD

(ACN 067 979 088)

Forty-Sixth Respondent  

AND:ALPHA WALL PTY LTD

(ACN 071 260 798)

Forty-Seventh Respondent

AND:ROBBAN INVESTMENTS PTY LTD

(ACN 069 437 761)

Forty-Eighth Respondent 

AND:BR & CM DAVISON PTY LTD

(ACN 009 848 879)

Forty-Ninth Respondent  

AND:CONTROY PTY LTD

(ACN 068 037 525)

Fiftieth Respondent

AND:FERRADALE PTY LTD

(ACN 067 481 654)

Fifty-First Respondent  

AND:ALFWAY PTY LTD

(ACN 067 481 618)

Fifty-Second Respondent 

AND:OARLEY PTY LTD

(ACN 071 819 013)

Fifty-Third Respondent  

CORAM:Drummond J

DATE:29 August 1996

PLACE:Brisbane

REASONS FOR JUDGMENT

This is an application for an interlocutory injunction against a large number of respondents.  Each operates at least one truck, which it owns and which is fitted with a mixer owned by CSR Limited, to deliver ready mixed concrete produced by CSR to builders and others who have purchased the concrete from CSR.  The carrying service is provided by each respondent under a contract it or he has entered into with CSR and which has been in place for some years.  None is an employee of CSR but rather an independent contractor to it.

The respondents are only some of the carriers who provide this service to CSR at various places throughout Queensland.  Over the past week or so large numbers of carriers contracted to CSR, or their representatives, have attended a total of three stop-work meetings.  Each was held early in the morning, a time of heavy demand by consumers for deliveries of concrete from CSR.  Disruption has thereby been caused to the company's business operations. Each meeting was convened by officials of the Queensland Branch of the Transport Workers Union. 

The applicant contends that the stop-work meetings and the strike action constitute a contravention of s 45 of the Queensland Competition Code. The relief sought is by way of an injunction restraining the holding of meetings of owner/drivers during working hours, which of necessity involve a work stoppage, and restraining what is called a collective boycott by the owner/drivers which involves an arrangement among them to prevent the supply of cartage services to CSR. 

In response to submissions from counsel who appeared yesterday for a small number of the respondents who had then been served, but who now appears today for all 53 respondents, CSR proposed interlocutory relief in terms more limited than that claimed in the amended application to deal with the disruption and loss that it will suffer if further such stoppages occur.

The applicant seeks relief, as I have said, under the Queensland Competition Code. Some of the respondents are natural persons and the Trade Practices Act 1974 (Cth) does not apply to them. 

By s 5 of the Competition Policy Reform (Queensland) Act 1996 of the Queensland Parliament, which came into operation on 21 July 1996, the Competition Code referred to in s 4 of that Act applies as a law of Queensland. Section 4 identifies the Code as comprising, among other things, the schedule version of Part IV of the Trade Practices Act, which is called an attachment to the Queensland Act, and the remaining provisions of the Trade Practices Act, with a few exceptions, so far as they would relate to the schedule version if the schedule version were substituted for Part IV of the Trade Practices Act.  Section 4(1)(b) of the Queensland Act thus incorporates in the Queensland Competition Code, among other things, the provisions of the Trade Practices Act that deal with the remedies available for breaches of Part IV of that Act, provisions repeated in the schedule version of Part IV of the Trade Practices Act.

The notice of motion seeks relief under s 80 of the Competition Code
of Queensland, ie, under s 80 of the Trade Practices Act, as incorporated in that Code by s 4(1)(b) of the Queensland Act. By s 4(2) and s 8(1) of the Queensland Act, the schedule version of Part IV of the Trade Practices Act that forms part of the Code covers both corporations and natural persons.

By s 18 of Part 5 of the Queensland Act, it is declared that:

“The object of this part is to help ensure that the Competition Codes of the participating jurisdictions are administered on a uniform basis, in the same way as if those codes constituted a single law of the Commonwealth.”

By s 21 of Part 5 of the Queensland Act, exclusive jurisdiction with respect to all civil and criminal matters arising under the Queensland Competition Code is conferred on the Federal Court, subject only to the power of the Federal Court to transfer such an action to a Queensland court under the cross-vesting legislation. A new “Part XIA - The Competition Code” was inserted into the Trade Practices Act by s 26 of the Competition Policy Reform Act 1995 (Cth). By s 150D of Part XIA, the Commonwealth Parliament has authorised the Federal Court to exercise jurisdiction conferred under provisions of State laws such as s 21 of the Queensland Act.

I will refer in these reasons to the provisions of the Trade Practices Act rather than to the provisions of the Queensland Competition Code which replicate or incorporate those provisions and which Code governs this case.

CSR’s case is based upon the proposition that the respondents have contravened s 45(2)(a)(i) of the Trade Practices Act. It does not rely on s 45(2)(a)(ii), which requires proof that a provision has or is likely to have the effect of substantially lessening competition. Section 45(2)(a)(i) prohibits a person from making an arrangement or arriving at an understanding which contains an exclusionary provision. By s 4D(1) an arrangement or understanding is taken to contain an exclusionary provision if it was made or arrived at between persons, any two or more of whom are competitive with each other, and further provided that the provision has the purpose of preventing, restricting or limiting the supply of services to another person by all or any of the parties to the arrangement or understanding. Section 4D(2) provides that a person shall be deemed to be competitive with another person for the purposes of sub-section (1) if, and only if, the first mentioned person is in competition with the other person in relation to the supply of any of the services to which the relevant provision of the arrangement or understanding relates.

It is said that the respondents, as owner/drivers, are persons who are competitive with each other within s 4D(1) and that they made an arrangement or arrived at an understanding, evidenced by their attendance at the stop-work meetings I have referred to, which arrangement or understanding can be inferred, from the effect on CSR’s business of those meetings, to have the purpose of preventing, restricting or limiting the supply of their concrete cartage services to CSR under their various contracts with CSR. It is said that the meetings and stoppages are part of a concerted campaign of collective boycott activity engaged in by CSR’s owner/drivers, including the respondents, which is very likely to continue until, as Mr
Beattie, a senior CSR official says, “the dispute over the cartage rate contracts is resolved.”

I have difficulty with the proposition that, on the evidence before me, the owner/drivers are competitive with each other in relation to the supply of cartage services to CSR, an essential condition that must be satisfied before it can be said that the respondents have infringed s 45(2)(a)(i) of the Trade Practices Act.

It is submitted that each respondent is in competition with other CSR owner/drivers, because each can earn more than his fellows by working longer hours, by working more quickly and efficiently, and by investing in trucks with greater carrying capacity.

The cartage services in question are currently provided pursuant to contracts which, although it appears are not identical for every respondent, contain a core of standard provisions.  There is no price competition between the respondents in respect of the services they supply to CSR.  All are paid under a schedule of cartage rates agreed some time ago between an industry association of which CSR was a member and a road transport association which represented, among others, CSR’s owner/drivers.  This arrangement is the subject of an authorisation granted by the Trade Practices Commission that goes back to 1979.

Given that the owner/drivers are all paid standard rates per cubic metre carried, it is not immediately apparent that the fact that one owner/driver can
earn a greater income from CSR than another, in the ways mentioned, shows that they are competitive with each other in relation to the supply of their cartage services to CSR.  CSR’s own commercial interest does not appear to be advanced by any of its owner/drivers adopting intensive work practices and earning more than that which other owner/drivers earn.  So far as the evidence before me indicates, CSR will still be able to have delivered all the concrete it can sell, when it wants those deliveries to be made, at a cost to it which is unaffected by whether it is delivered by a high earning owner/driver or a low earning owner/driver.  It was not suggested that the consumers of concrete or any other section of the public benefit from the opportunity for CSR owner/drivers to earn more than their fellows.  There is no evidence in the material before me to suggest that either now, or at any time presently relevant, the pool of cartage work available to CSR owner/drivers was limited.  If there is sufficient work available to satisfy all the owner/drivers, it seems to me that there is likely to be an absence of that rivalrous behaviour designed to capture for each contending participant business which, but for that behaviour, would go to other participants.

While the owner/drivers may in a sense be said to be competitive with each other in that there is the opportunity, if they choose to take advantage of it, to increase their incomes, I am doubtful whether it can be said that under the arrangements now in force owner/drivers are in competition with each other in relation to the supply of their cartage services.  For that to be the case, it seems to me necessary to show that the public, a section of the public, or at least the person to whom those services are supplied either actually or potentially have some economic benefit to gain from the activities of the service providers that are said to
constitute competition among them.  There is no such evidence.

CSR relies upon Gallagher v Pioneer Concrete (NSW) Pty Limited (1993) ATPR 41-216 in support of the proposition that the owner/drivers are mutually competitive. In Gallagher, the owner/drivers working for Pioneer were able to establish, by industrial action, a structure of restraints on Pioneer which operated over many years:  the owner/drivers were able to impose restrictions on the number of trucks to be made available by them to Pioneer on any one day and also to prevent Pioneer from engaging third-party truck operators or from using its own employees to drive its own trucks.  The owner/drivers were also able to impose on Pioneer a system for the equalisation of earnings by the owner/drivers working for Pioneer (see p 40,969).  These restraints impaired the capacity of others to compete with those particular owner/drivers in the concrete cartage market by offering their cartage services to Pioneer.  They also impaired the capacity of Pioneer to compete in the concrete supply market by restricting its capacity to meet from time‑to‑time the demand for the supply of concrete to consumers that it would have been able to satisfy, but for this structure of restraints.

Lockhart J observed, at p 41,006, that the respondents' case based on s 45(2)(a)(ii) was stronger than its case based on the arrangements involving exclusionary provisions contrary to s 45(2)(a)(i). In concluding, however, that the arrangements in question did involve a prohibited exclusionary provision, his Honour said:

“The [lorry owner/drivers] would otherwise be in competition with each other and the purpose of the arrangement is to restrict or limit the supply of concrete cartage services to the respondent and its customers.  It has also prevented, restricted or limited the supply of ready mixed concrete to the customers of the respondent.”

His Honour made this comment after already having found that the equalisation of earning system enforced on Pioneer impeded its capacity to compete for market share in the concrete supply market by, eg, limiting the number of trucks it could call on to meet customers’ demands (p 40,976);  by inflating Pioneer's costs of supply and thus its prices to consumers as a result of Pioneer having to abide by a procedure enforced by its lorry owner/drivers for transferring trucks between plants that involved penalty payments to transferred owner/drivers (pp 40,976-40,977);  and by preventing Pioneer from developing efficiencies in its cartage operations (p 40,978).

In the absence of the exclusionary provisions, Pioneer's owner/drivers, in order to maximise their own incomes, would had to have been prepared to meet Pioneer's operational requirements intended to maximise Pioneer's market share.  There would thus have been room for Pioneer's owner/drivers to vie with each other in making their services attractive to Pioneer and that rivalry for Pioneer's cartage work may also have produced economic benefits for Pioneer and for consumers of concrete in the market to which Pioneer was a supplier.

Apart from the assertion that CSR’s owner/drivers are in competition with each other for the limited reasons advanced and to which I have referred, no
attempt was made by CSR to show how, under the existing system, its owner/drivers were in competitive rivalry with each other in a way that had an economic impact in relation to the supply of cartage services to CSR, on CSR itself, on purchasers of concrete from CSR, or on any other section of the public.  The factual context of the present case is very different from that which gave rise to the litigation in Gallagher.  There, the Court was concerned with restrictions in the nature of permanent restrictions imposed by the company's owner/drivers on the way the company operated.  All these restrictions impaired, to a significant degree, the company's capacity to compete in both the market for the supply to concrete producers of cartage services, and the market for the sale of ready mixed concrete.  Many of the restraints on Pioneer do not exist as between CSR and its owner/drivers.

In contrast with the situation in Gallagher, CSR complains of actions by the owner/drivers undertaken in the course of a dispute that has arisen out of CSR’s decision to put in place with its owner/drivers new standard form contracts requiring them to work under different conditions from those provided for by the present arrangements.  The actions of the owner/drivers that have provoked this litigation appear to comprise steps taken by them to improve their bargaining position with respect to the form the new arrangements will take in a dispute in which CSR itself has engaged in different manoeuvres to enhance its own bargaining position, and its ability to achieve its objective of procuring entry by the owner/drivers into the new arrangements.

While the actions of the owner/drivers complained of are capable of
being disruptive and costly to CSR’s business, they take the form of transitory industrial action which CSR itself says it expects to end when the dispute is resolved.  The action complained of is a long way from conduct having a long-term impact on CSR’s operation.  It is conduct of a kind which any large commercial or industrial organisation can expect to encounter in the ordinary course of its business operations, particularly when negotiations are under way between the organisation and those supplying it with goods or services for changes to the established terms on which such supply has been provided in the past.

Given the significantly different factual circumstances between Gallagher and the present case, I do not regard that decision as establishing that CSR’s owner/drivers are competitive with each other for the purposes of s 45(2), under the longstanding existing arrangements which are now being disrupted by the conduct of which CSR complains. I do not accept, on the evidence before me, that CSR has made out a case sufficient for present purposes that the respondents are mutually competitive in the sense required by s 45(2)(a)(i).

Gallagher shows that industrial action is not outside the reach of s 45 of the Trade Practices Act. But, in giving s 45 the purposive interpretation that I think it should have, it is necessary to have regard to the fact that the object of Part IV of the Trade Practices Act is to procure and maintain competition in trade and commerce by proscribing arrangements inimical to that objective.  See Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Livestock Corporation (1980) 44 FLR 455 at 460. Reading s 45(2)(a)(i) as enabling it to be used by one
party to an industrial dispute as a tactic in the dispute to suppress tactics adopted by the other party that have only a transitory and minimal impact on competitive activities in a market or markets does not, I think, advance the objects which s 45, as an element of Part IV of the Trade Practices Act, is designed to advance. Yet it seems to me that that is how CSR is seeking to use s 45 here. Even if, contrary to my view, the actions of the owner/drivers complained of do come within the reach of s 45(2)(a)(i), CSR concedes that it is unusual to find the provision being invoked in circumstances like the present.

These considerations are, in my opinion, all relevant to whether the Court, in the exercise of its discretion, should grant the injunctive relief sought.  Proceedings under the Trade Practices Act and the Queensland Competition Code, including proceedings for interlocutory relief, have a special character in that the Act and the Code are directed to the protection of the public interest.  It is only in the course of protecting the public interest that a party is enabled by the Act to seek relief from injury to his own interests.  Whether the purpose of a statute to protect or enhance the relevant public interest is likely to be advanced by the grant of the relief sought is a consideration to be taken into account when assessing, in the context of an application for interlocutory relief under the Act, the strength of the applicant's case and also weighing the balance of convenience:  see World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 at 186, 187 and at 199-200; Tytel Pty Ltd v Australian Telecommunications Commission (1986) 67 ALR 433 at 441; Ricegrowers' Co-operative Ltd v Howling Success Australia Pty Ltd (1987) ATPR 40-778 at 48,492.

I have said that I think, on the evidence before me, CSR appears to be using s 45 in a way that does not advance the purpose of Part IV of the Trade Practices Act of advancing and protecting competition in trade and commerce.  The background to the actions of the owner/drivers in question is to be found in CSR’s  decision, taken in 1995, to establish new arrangements with its owner/drivers containing provisions which were different from the existing arrangements with its owners/drivers and which were designed to yield CSR benefits (although the proposed arrangements are also said by CSR to provide advantages for the owner/drivers, too).

In August 1995, CSR applied to the then Trade Practices Commission for the appropriate authorisation for the proposed new arrangements.  It appears that the existing arrangements between CSR and its owner/drivers are essentially those which have been in force under the Trade Practices Commission authorisation that I mentioned, which goes back to 1979.  Whereas the existing provisions were negotiated by organisations representing producers, including CSR, and organisations representing owner/drivers, including those working for CSR, in seeking authorisation in respect of the proposed new arrangements, CSR informed the Trade Practices Commission that it intended to enter into direct negotiations with its carriers "in order to improve efficiency and competitiveness on an enterprise by enterprise basis", ie, it did not propose to adopt the hitherto followed procedure of negotiating at an industry level between representative producer and carrier organisations.  It also made clear to the Trade Practices Commission that, while it dealt with its 224 carriers as independent contractors, it regarded it as both
"impractical and inequitable for CSR to enter separate negotiations and contracts, arrangements or understandings with each individual independent contractor".  CSR said it envisaged negotiating for the new arrangements with a representative or representatives of these carriers on a collective basis with a view to arriving at a common form or standard arrangements with each of its carriers. 

Uncertainty appears to have been generated on the part of the owner/drivers by the making of this application coupled with the lengthy period of delay on the part of the Trade Practices Commission, now the Australian Competition and Consumer Commission, in responding to the company's application for authorisation.  It was not until late March of this year that the Commission gave an interim authorisation to the company.  In October 1995, after CSR informed it of its intentions, the TWU claimed from CSR, on behalf of the owner/drivers, a 6 per cent interim increase in the payment provisions of the existing contracts, a claim not acceded to by CSR.

The lodging of this claim occurred about the time CSR nominated to the Trade Practices Commission, in order to assist the Commission in considering CSR’s authorisation application, a small group of TWU officials and owner/drivers to constitute what it called a negotiation committee with whom the Commission could have contact in evaluating CSR’s authorisation application.  The new arrangements proposed by CSR, like the existing ones, provide for a standard scale of cartage rates at which the owner/drivers will be paid.  It appears that it is in CSR’s interest to have a standard scale of rates rather than individual rates with each of its
owner/drivers.  The latter would be administratively burdensome to CSR and would present it with great difficulties in properly costing individual jobs.

When it advised the Trade Practices Commission of these considerations, CSR commented "differing rates and conditions would lead to some drivers getting work over others which would lead to industrial unrest" and that industrial harmony would be enhanced under the new arrangements.  It appears that until CSR proposed the new arrangements in making its application for authorisation to the Trade Practices Commission and notifying the owner/drivers and the TWU of that, there had never been industrial action over rates of pay involving CSR’s owner/drivers.  In the wake of lodgment of CSR's authorisation application, the claim for an interim increase in existing rates was, as I have said, made on CSR and one stop-work meeting took place in October 1995.

In January 1996, the solicitor for CSR wrote to the Australian Competition and Consumer Commission once again to complain about the failure of the Commission to respond to the authorisation application.  In pressing the Commission for a decision, the solicitor advised:

“The owner/drivers with whom CSR Readymix is seeking to enter the agreements which are the subject of the authorisation application, have not had a rate increase since April 1993.

The Transport Workers Union (which represents the owner/drivers) was advised by CSR Readymix of the need to make an application for authorisation before agreeing any new rates with the owner/drivers.  The TWU was also advised when the authorisation application was lodged in June 1995.

Despite this, the TWU has maintained that CSR Readymix is only seeking to stall rate increase negotiations and for some time, argued that an application for authorisation was unnecessary.

In September 1995, the TWU called a stop-work meeting of all owner/drivers engaged by CSR Readymix and lodged an unsupported across-the-board pay claim for a 6% increase.  The stop-work meeting was called on the basis that CSR Readymix was simply stalling any pay increase by claiming the need for authorisation.  Incidentally, the stop-work meeting was the first strike of owner/drivers engaged by CSR Readymix in Queensland.

Following the stop-work meeting, CSR Readymix representatives discussed the issue further with the TWU and convinced the Union to withdraw its 6% claim pending further discussions.  The TWU’s latest advice is that they will await the Commission's decision for the time being but the TWU expressly reserved to itself the right to call further strikes if the matter was not dealt with promptly.

The Commission's decision to delay the granting or a rejection of the authorisation application exposes CSR Readymix to further industrial action, over which CSR Readymix has no control.”

Having decided to procure new terms of engagement governing its relations with its owner/drivers, which necessitated authorisation for those new arrangements by the Commission, CSR also decided to engage in a process of negotiating with union officials, who had represented the owner/drivers, to further its commercial objectives.  CSR’s decision disrupted a hitherto placid industrial environment.  It must have anticipated the possibility of industrial discord.  CSR’s decision also set in train a process of collective bargaining between it and its owner/drivers to achieve ends which CSR considers necessary or desirable in its own interest.

Industrial unrest of the kind I have already mentioned has continued.  On 27 March 1996, when the TWU had called the 24-hour stoppage for the next day
of CSR owner/drivers who were TWU members, by way of protest at the delay in finalising an agreement with CSR for the interim increase in contract rates, the Australian Competition and Consumer Commission notified CSR of its decision to grant an interim authorisation of the application for six months, pending the Commission's final decision on the application.  It appears that this interim authorisation was granted by the Commission in ignorance of the threatened stoppage of owner/drivers.  The 28 March stoppage went ahead.  Negotiations between the TWU, on behalf of the owner/drivers, and CSR continued, with the TWU pressing for the interim six per cent increase to existing cartage rates, backdated to August 1995.

Although CSR now has the interim authorisation, no agreement has yet been reached with the owner/drivers.  Although it appears CSR had been previously negotiating on a collective basis with TWU and owner/driver representatives with a view to agreeing on the proposed new arrangements, on 1 July last, it took the step of sending to all its owner/drivers a new standard form of contract which it described as an individual contract, “not a group contract requiring group approval."  It said the documentation forwarded to each owner/driver should be returned, signed and witnessed, by no later than 2 August 1996.  The letter, though, dated 1 July 1996, contains the confusing statement that the form of contract is "the document that was presented to the Carriers Negotiating Team on 11th July 1996."  So far as the evidence before me reveals, the next step was for CSR, on 14 August last, to send a further letter to each owner/driver, calling on the owner/driver to sign the contract documentation providing for new cartage rates, as
from 1 September 1996, which appeared to have been the subject of contentious discussion with the Carriers Negotiating Committee shortly before that.  CSR's letter includes the statement:

“The Contract in its entirety will not be subject to any further negotiation, and you will be signed to the Contract upon completion of the Memorandum of Understanding.”

The response to this ultimatum was swift.  By 19 August, CSR had in its hands a TWU notice calling on CSR's owner/drivers to attend what was called a "Report back meeting on negotiated contracts" to be held at 7.30 am on 21 August.  The three stoppages I have mentioned followed. 

CSR got notice of the meeting of 21 August on 19 August as a result of an owner/driver giving to one of its officers a copy of a notice convening the meeting.  Although the notice called the meeting for a critical time of day, the evidence does not suggest that CSR took any action to minimise the disruption which ensued.  CSR also got notice of the meeting ultimately held on the morning of 23 August in the form of a letter delivered by the TWU to an officer of CSR on 21 August.  CSR reacted by bringing an application for urgent interlocutory relief before this Court on 22 August.  In the course of the hearing, CSR asked that its interlocutory application be dismissed, its solicitors having received, in response to their demand for undertakings that the TWU would not organise or be involved in any stop-work meeting concerning CSR's owner/drivers during working hours, a facsimile from the Queensland Branch Secretary confirming that the TWU did not
propose to organise or be involved in any such stop-work meeting.  Despite this, the stop-work meeting went ahead at the time originally planned.  The TWU appears to have been involved. Mr Beattie, of CSR, received a facsimile from the Queensland Branch Secretary of the TWU later on 23 August, advising of resolutions passed at that meeting.

Mr Beattie says of the stoppages on 23 and 27 August:

“These work stoppages known as "lightning stoppages" are designed and have the effect of causing maximum damage to the Applicant because the Applicant is not in a position to service customers’ needs by either deploying its own company fleet of concrete carters or organising customers’ requirements to be met by the Applicant's competitors who have their own commitments which cannot be re-scheduled by the time that the lightning stoppage comes to the attention of the Applicant.”

Mr Beattie expressed concern at the likelihood of the respondents continuing to engage in unannounced work stoppages "until the dispute over the cartage rate contracts is resolved."

Even if, contrary to my view, CSR has an arguable case that the recent unannounced stoppages by the owner/drivers contravene s 45(2)(a)(i) of the Trade Practices Act, I would not, in the exercise of my discretionary jurisdiction to grant interlocutory injunctive relief, grant CSR any such relief, having regard to the circumstances revealed by the evidence before me. 

The conduct of the owner/drivers complained of may be unlawful, as
involving breaches by each participating owner/driver of his contractual obligations under his cartage contract with CSR.  It may be that CSR has common law rights against the owner/drivers for damages.  I express no opinion on whether this is the position.  I only draw attention to the possibility that it may be the case, to emphasise that in refusing CSR injunctive relief, based, as it is, solely on a claim of infringement of the Trade Practices Act, I am not to be taken as expressing any opinion to the effect that the actions of the owner/drivers are generally lawful or justifiable or proper. 

However, I am asked to grant injunctive relief based on an infringement of s 45, constituted by intermittent industrial action in an ongoing dispute.  It is, moreover, action that can fairly be said to have been taken in response to the issue of an ultimatum by CSR to the individual owner/drivers, rather than to the negotiating team of TWU officials and a committee of owner/drivers with which it had hitherto been dealing.  Although it is disruptive of CSR's business activities, according to the evidence, the action complained of has not had anything other than a transitory impact on those activities to date.  It is noteworthy that, although Mr Beattie identifies the vice of what he calls "lightning stoppages" as depriving the applicant of the opportunity to deploy its own company fleet and make other arrangements to minimise the impact of a stoppage on its freighting activities, the company had considerable prior warning of the stoppages of 28 March and 21 August but appears, so far as the evidence shows, to have taken no steps to attempt to minimise the impact of the allegedly seriously disruptive consequences.  That suggests that the impact of the stoppages, that have occurred and may recur,

may not be as catastrophic as indicated.

I consider that the evidence shows that CSR is invoking s 45 as a tactic in an industrial dispute that has resulted from its decision to press for new arrangements with its owner/drivers and that the grant of the relief now sought will not advance any public interest that it is the object of s 45 to vindicate.  I accept that, if this were litigation brought to enforce purely private rights, the balance of convenience would strongly favour the grant of interlocutory injunctive relief.  However, for the reasons given, I decline on discretionary grounds to grant the application.

In refusing relief, I also take into account that this industrial dispute has now been brought before an industrial tribunal which has available to it procedures designed to facilitate the resolution of such disputes. The dispute involving CSR and the respondents and its other owner/drivers has very recently been notified to the Queensland Industrial Relations Commission pursuant to s 319 of the Industrial Relations Act 1990 (Qld) by the TWU on behalf of the owner/drivers employed by CSR.  The TWU has been recognised by CSR as representing those drivers in the current dealings with it.  Although the formal notification identifies the parties to the dispute as the Queensland Branch of the TWU and CSR, in identifying the subject matter of the dispute, it refers to the parties being in dispute over the terms and conditions of employment and/or engagement of owner/drivers in the CSR Readymix Concrete business and the job security of those direct employees of CSR Limited who are not owner/drivers.  The Industrial Relations Commission has
convened a conference in respect of this dispute for 3.30 this afternoon.  On the face of the notification of dispute, the Commission thus appears to be seized of the whole dispute, an element of which has given rise to the stoppages the subject of CSR's proceedings in this Court.  I should record CSR's oral submission that it does not accept that the Industrial Relations Commission has jurisdiction over the parties.  Nevertheless, I take into account the fact that a dispute has now been notified to that Industrial Tribunal.

Counsel for the respondents submitted that it was arguable that this Court had no jurisdiction to grant CSR the relief sought since the action complained of amounted to boycott conduct within the meaning of that expression in Division 7 of the Industrial Relations Act 1988 (Cth).  The Industrial Relations Court is, by s 163P(1) of that Act, invested with jurisdiction with respect to such a matter, which is exclusive of the jurisdiction of any other Court.  The submission was not developed in any detail and I do not propose to express any opinion on it.

I conclude by observing that whether CSR should have the interlocutory relief it seeks must be governed by the circumstances revealed by the evidence before the Court.  The Court at the moment is not dealing with a situation in which there has been an extensive period of prima facie unlawful disruption of CSR's business activities.  It is not dealing with work stoppages, any one of which has been productive of disruption of what could be said to be of a catastrophic kind.

However, the relief unsuccessfully sought by CSR being interlocutory
only, if there is a sufficient change of relevant circumstances in the future in matters that go to the Court's discretion to grant relief, it may well be open to CSR to make further application to this Court notwithstanding the failure of its present application (if it can also produce evidence of the kind I have said I think is necessary to show that it has a case for saying s 45(2)(a)(i) is infringed).

The application for interlocutory relief is dismissed and I will order that the applicant pay the respondent's costs of and incidental to that application.

[DW1] 

I certify that this and the preceding 27
pages are a true copy of the reasons
for judgment of the Honourable
Justice Drummond.

Associate:

Date:  29 August 1996

Counsel for the applicant:  Mr D J S  Jackson QC

Solicitor for the applicant:  Corrs Chambers Westgarth

Counsel for the respondents:                   Mr P D T  Applegarth

Solicitor for the respondents:  Reidy & Tonkin

Date of Hearing:  28 August 1996

[DW1]CHECK THAT THE REASONS ARE IN DOUBLE LINE SPACING.