Flower Davies Wemco Pty Ltd v Australian Builders Labourers Federated Union of Workers & Ors (W.A. Branch)

[1988] FCA 44

I N THE F DERAL COURT )

A U S T R A L I A O F )

WESTERN AIJST ALIA )

D I S T R I C T R E G I S R Y )

G E N E R A L	D I V I S I O N	)	NO.	WAG	118 O f 1 9 8 6
B E T W E E N :	FLOWER	D A V I E S	WEMCO	PTY	L I M I T E D

A p p l l c a n t

a n d

THE	AUSTRALIAN	BUILDERS	LABOURERS
FEDERATED	UNION	OF	WORKERS

- WA BRANCH

F i r s t R e s p o n d e n t

THE PLUMBERS AND

G A S F I T T E R S '	E M P L O Y E E S	U N I O N	O F
AUSTRALIA

Second R e s p o n d e n t

THE FEDERATED ENGINE DRIVERS ' AND

FIREMEN'S UNION

MINUTE

JUDGE	MAKING	ORDER:	FRENCH J.
DATE	OF	ORDER:	3 FEBRUARY

WHERE MADE :  PERTH

THE COURT ORDERS THAT:

1. T h e r e sponden t s are t o pay t h e costs of t h e c l a i m for

i n t e r l o c u t o r y re l ie f s a v e for t h e appearances o n 21

N o v e m b e r 1986 and t h e mornlng of 28 November 1986.

2. The costs are to be taxed forthwith and paid

independently of the	resolution of the	substantlve
appllcation.

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 )

GENERAL DIVISION 1 No. WAG 118 of 1986

B E T W E E N :  FLOWER DAVIES WEMCO PTY LIMITED

Applicant

and

THE AUSTRALIAN BUILDERS LABOURERS

FEDERATED UNION OF WORKERS

- WA BRANCH

First Respondent

THE PLUMBERS AND
GASFITTERS' EMPLOYEES UNION OF

AUSTRALIA

Second Respondent

THE FEDERATED ENGINE DRIVERS' AND

FIREMEN'S UNION

Third Respondent

CORAM; FRENCH J .

3 FEBRUARY 1988

EX TEMPORE REASONS FOR JUDGMENT

On 3 December 1986 I made an order in these proceedings granting an interlocutory lnjunctlon restraining the first and

second respondents from giving effect to certain bans affecting

the prov5sion of goods or services to the applicant at the

premises -of . - I the Australian Instltute of Management on the corner

- - - , ,

of Underwqod 'and Birkdale Streets in Floreat Park.

. . ..

-' .?> .

.. . , v:-, r 1

The nature of the dispute between the parties was such

of that interlocutory injunction effectively

' I I

2 .

determined the substance of the ap3llcatlon. The conduct which was restrained woulfi have Interfercd wlth the l l f t of two items of cqulprnent on to the roof of thc @remlses ~n flu~stlon. Thc

ln~unction having been grnntet-J and compllcd with, the l i f t of those two items of equlpmcnt took place. 4palrt frop the question of damages ancl costs, the matter appears to b e resolvcd. 4s appears Erom the affidavit of 5:llzabeth Jane ilolllngworth, a solicltor actlng for the a>plicant, the damages that it contend.; that i t suffered amount to approximately $3,300, and it is said that due to the small amount of the damages claimed, the applicant has not pursued matters at rial; Indeed, there has been substantially little o r no movement on the file slnce that tune.

_.

O n 7 December last year, the matter came up for mention

and I then directed that the questlon of the costs of the

lnterlocutory injunction be heard today. The applicant seeks the costs of the interlocutory proceedings but thls is opposed by the respondent. The respondent rightly points out that the decislon taken was based on evidence whlch mlght not necessarily be that

led at trial and, ~ndeed, I made that point myself in the reasons

n 1

1. for ~udgment. The findlngs oE fact are, to the extent that they are based on hearsay evidence or evidence whlch may not have been tested in cross-examlnation, provisional, and do not determine issues finally for the purpose of the substantive application. There were criticisms that were made at the time, by counsel for the respondent, of the evl@ence adduced for the applicant. In the event, however, I applied established criteria to determine that

i t was appropriate to grant an interlocutory in~unctlon: the

cstabllshed cr~teria being t h e exiqtence oE a serious question to be tried and a balance of convenicnce favouring the grant o € the relic? sought. r;'hilst 1 t is L I S U ~ ~ to reserve the costs of interlocutory applications ?ending the outcome of the substantive hearinq, there I T no reason i n :~rlnciple why the costs of the interlocutory proceedings cannot bc determined separately: and In this case there are compelling practical reasons for so doing.

The principal reason is that the interlocutory application has effectively determined the outcome of the proccedings insofar as the restraint imposed upon the respondents' conduct is concerned and it would be ludicrous to allow the matter to go to a trial to determine how costs on the interlocutory proceedings should be resolved. The interlocutory

in~unction was granted on established principles; those principles are neither caprrclous nor arbitrary; they are predictable.

One can say, without engaging, of course, in any

crltlclsm of the respondents or their advisors, that it 1s

possible €or a party who is respondent to a claim for

interlocutory relief to assess its prospects of success In accordance with those well established criteria; notwithstanding that the evldence upon which the decision may be made may include

evidence which would not be admissible at a trial of the actlon.

In my opinion, the Interlocutory proceedings which were vigorously opposcd by t h e rcspondant and resolvcd aqainst l t have no attribute which w ~ u l d zequLr(? a departure in this case from the 1usua1 cule, that the costs should follcw the event, and ~n the

circumstances I proposp to on:cr that the respondents sboul3 pay

thc costs o f the claLrn C o r lnterlccbtory relief.

I would exclude, however, from the ambit of that order

the first appearance by the applicant on 27 November 1986 when it attem2ted to clalm its interlocutory r e l l e f on an ex parte basis; that was, as I then said, an unlustified attempt and it is not a cost that ought to be borne by the respondents. Nor should the respondents be liable to pay the costs oE the appearance on the morning of Friday, 28 November 1986, at which time the applicant sought simply to amend its statement of claim; that again was a matter which should not impose any addltional burden upon the

respondents. But suh~ect to those two qualifications, I propose

to order that the respondents	pay the costs	of	the claim for
lnterlocutory relief.

The formal order on the claim for costs is that the

respondents are to pay the costs of the claim for interlocutory

relief save for the appearances on	2 7	November 1986 and the
morning of 28 November 1986.

I wlll make a further Qrder and that is that the costs are to be taxed forthwith and paid independently of the resolution

of the substantlve application.

I	c e r t i f y	t h a t	t h e preceding
f o u r	( 4 ) par;es	a r e a	t r u e

copy of t h e Peasons f o r

JuAqment 9 f b i s :Ionour

Jus t l c? F r c n c h .

C o u n s e l	f o r	t h e	A p p l l c a n t :	Ms.	E .	H o l l i n g w o r t h
S o l l c i t o r s	fo r	t h e	A p p l i c a n t :	Y a l l e s o n s	S t e p h e n	J a q u e s
C o u n s e l	€or	t h e	R e s p o n d e n t s :	Mr	D.	C h a n t l e r

S o l l c i t o r s f o r the Responden t s : Harman Drake -Brockman

Date of Hearing: 3 F e b r u a r y 1988

Date of J u d g m e n t : 3 F e b r u a r y 1988