Gardner, D.M. v Transport Workers Union of Australia

C A T C H W O R D S

TRADE F'RACTICEE - secondary boycott - interlocutory injunction - adequacy of proof that union representative had authority - acting in concert - discretion - whether union "body corporate".

Trade Practices Act ss.45D, 8 4 ( Z )

DUKE: McDONALD GARDNER. FAMELA ELLEN GARDNER and JAMES McDONALD GAFENER

PINCUS J.

SYDNEY

2 OCTOBER 1985

IN THE FEDERAL COURT OF AUSTRALIA

)

NEW SOUTH WALES DISTRICT REGISTRY

)

NSW

G280

1985

GENERAL DIVISION

)

BETWEEN:

DUKE McDONALD GARDNER, PAMELA ELLEN GARDNER

and JAMES McDONALD

GARDNER

Applicants

AND:

TRANSPORT WORKERS' UNION OF AUSTRALIA

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J .
DATE OF ORDER:	2 OCTOBER 1985
b m R E MADE:	SYDNEY
THE COURT ORDERS THAT:

1. The respondent be

r strained

until

further order from engaqlnq directly

indirectly in concert

with another person

or persons in conduct that hinders

prevents the supply

sand, stone or

gravel to customers of the applicants in the Australian Capital Territory or hlnders or prevents the ordering of such sand, stone or gravel from the applicants

where such conduct would

have,

or be

likely to have,

the effect of preventlnq

or substantially hindering the applicants

from

engaging

trade

or commerce

between a State and a Territory.

2 . The respondent

r strained

until

further

order

from

imposing,

giving

effect to or enforcing any ban on the ordering from, receipt from or delivery by, the applicants of sand, stone or

gravel in

the

Australian

C pital

Territory, where such conduct would have

likely

have

the

effect

preventing or substantially

hindering

the

applicants

from engaging

trade

commerce between a State and a Territory.

NOTE:

Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

)

NE3I SOUTH WALES DISTRICT REGISTRY

)	NSW G288 of 1985

GENERAL DIVISION

)

BETWEEN:

DUKE McDONALD GARDNER. PAMELA ELLEN GARDNER

-\L	and JAMES McDONALD GARDNER

Applicants

AND:

TRANSPORT WORKERS’ UNION OF AUSTRALIA

Respondent

PINCUS J.

2 OCTOBER 1985

REASONS FOR JUDGMENT

This is an application under s.45D(lA)

of the Trade

Practices Act 1974 for

an interlocutory injunctlon.

The polnts

on which the matter ultimately turns are fairly short and

I h ve,

therefore, determlned to give

my decision this evening, havlng

formed a clear vlew on them. Another reason

1s that it wlll,

presumably,

convenient

the

parties

have the

decision given in Sydney.

2 .

The applicants are in the transport business, and in May

1984 they expanded the scope of their business; they did

so in

response to a request from Citra Construction Ltd to supply sand

and gravel to a site within the Australian Capital Territory; the

applicants' base being at Cooma.

The new

business proved to be

successful and it grew; more drivers were ngaged. The applicants in May 1985 ordered equipment of considerable value,

including

two

trucks

worth

$175,000

each.

In that

month,

however, they encountered difficulty with one Ray Holderman, who

approached one of the applicants' drivers and enqulred whether he

was a member of the respondent union; the drlver said he was not

and was

told not to tip his load in the place designated.

acceded to that demand made by Mr Holderman and tipped it	on the
road.

The nest day Mr Gardner, one of the applicants, asked

Holderman what the trouble was and was told by him that the drivers could not deliver materials unless they were members of the respondent unlon. That was resolved by the applicants paylnq

the driver's union fees shortly afterwards.

3 .

is, of

course, material to notice that these

fees

were paid

to the respondent, as does not seem to be

in issue,

because counsel

for the respondent has suggested that

I should

regard it as unproven that

Mr Holderman has been acting with the

authority of the respondent.

There is, however, no suggestion

I-

that the respondent declined to accept the

fees thus garnered.

The cheque for the fees, which was

sent a little late,

was not honoured and

a second cheque had to be sent. Counsel for

the

respondent suggested in argument that

I should take into

account against the applicants the circumstance

I have

just

mentioned, in the exercise of my discretion.

The submlssion 1s

not one which I find easy to comprehend. Mr

Holderman, as wlll

appear, ultimately

closed down the appllcants’ business of

cartinq into the Australian Capltal Territory to whlch

I have

referred, and

I flnd It hard to understand why the shortage

cash which

was suffered by the applicants in May.

whlch caused

the cheque to be dishonoured, should be vlsited	with such a
severe punishment.

4 .

The next significant incident involving the applicants

and

Mr Holderman took place in July

1985,

when the latter

complained that the cartage prices which were being charged were

not right. Mr Holderman said in a conversation at the office of

the respondent, “I will not have anyone carrying into Canberra t

cut rate

prices. If

you

do not abide by the prices set by the

TWJ you

will not deliver any more materlal to the ACT.”

There

was a discussion between the applicants, represented by

Gardner, and Mr Holderman and

a rate of cartage was agreed on.

Then Mr Holderman asked

how much Mr Gardner was charging

f o r his

material; he was told he was selling too cheap but apparently the

conversation which then ensued satisfled

Mr Holderman that that

was

not so.

I mention these matters because they

are clear

evidence, if accepted, that Mr Holderman regarded it as his function to Intrude Into any aspect of the applicants’ buslness

which he thought was relevant to

unlm interests.

Then the

conversatlon,

which

took

place

as I have

mentioned at the office

of the respondent

union, touched upon the

sub~ect of

the wages belng pald to the drivers.

is not

necessary to

set

out

the

detalls

that dlscussion;

culminated in

Mr Gardner’s offerlng to put the drlvers, who are

earnlng

than

the

award, on

award

wages,

engaging

additional

truck

and

river

to compensate.

That

was

not

satisfactory to

Holderman, because he

said the drivers

are

5 .

"going backwards and I will not

have my men doing that".

The	upshot was that Mr Holderman demanded the wages

sheets; MY Gardner said

he would produce them;

he phoned his

accountant in Sydney

to.

have them produced. According to the

,%-L

.a,-

evidence, that has never occurred.

The reason given initially

was that the accountant, who was driving

down

to Canberra with

the wages sheets, had some difficulty with his motor car.

The

reason for the subsequent delay is not quite

so clear.

Again, it is suggested by counsel

for the respondent

union that the non-production of

the wages sheet

is a reason for

refusing an injunction, if I am otherwise of the view that the applicants should have one. It was not suggested on behalf of

the respondent that there was any obligation

to produce the wage

sheets under the Conclliatlon and Arbltratlon Act

any other

statute.

But counsel for the respondent suggested that a promise

had been broken and that

It was up to MY Gardner now physically

to proffer the wages sheets, to see if that satisfies Mr Holderman. That contention is one, as I said to counsel, which I flnd entirely without substance, particularly as Mr Gardner made it clear to MY Holderman earller this month in a conversation

with him and, indeed, in

his evidence today, that

he is perfectly

willing to produce the sheets.

However, the non-production of

the sheets turned out to be

very important and has led to this

litigation - at least, the obstensible reason

for

subsequent

action by Mr Holderman is the non-production

f the sheets.

Mr Holderman informed

Mr Gardner, after telling

him that

the sheets

had not arrived,

"You

will never cart another load

7,.

into the A.C.T.; the best thing you can do 1 s go

and put your

flat tops back on and

back where you belong interstate." The

reference to putting flat tops back

on is, no doubt, to the fact

that the applicants' trucks were tip-trucks.

The evidence

was that Mr Holderman

put the threat into

effect. There is evldence from

N.H.

Dunn, the branch

manager for the A.C.T. for Cltra Construction Ltd, who was told by Mr Holderman early last month "We are going to close Mac down.

I do

not want you to receive any materials from

him."

And the

reason

glven

was

non-production

of wage

sheets.

Mr Dunn

protested against that, saylng

that

he dld not intend to

do Mr

Holderman's dirty work for him. However, Mr Holderman had his way, because, accordlng to the evidence, he spoke to a Mr Jenner, Citra project manager at a certain sub-divlslon and told him that the applicants were not o deliver any more material to Cltra in

the A.C.T., as they had been declared black. That was reinforced

by a threat to cut off Citra's concrete and

fuel supplies if the

delivery were accepted. There is also evidence from a Mr G.L. Da Deppo, the construction manager of Wollongong Constructions Pty

Limited, another	of the customers of	the applicants, to similar
effect.

In view of a point taken by

Mr North, in his able

argument on behalf of the respondent, it is deslrable to set out

in a little detail what

Mr Da Deppo says. In July 1985, Mr

Holderman, who is described by Mr Da Deppo as being "Mr Holderman of the Transport Workers Unlon", made reference to Gardners in a

conversation with Mr Da Deppo and said

he had been having trouble

with them because they were not charging proper haulage rates.

In August there was a similar conversation and	Mr Holderman said
"We are golng to cut them off." Subsequently,	Mr Holderman told

MY Da Deppo that, "Gardner is coming to the party; he has fixed up membershlp and rates and it looks like

it would be okay." The

next Incldent was on

9 September 1985 when Mr Holderman rang and

said, "Gardners are off the road, they will have to go back to

cartage

InterstaEe,

the

TWU 1 s

finished

trylng

satisfaction from him. someone rang my

offlce from Gardners and

sald we

ought to be shot.

I was out at the time,

I wish I was

there, I

have been trying to contact Mac since, but

I have had

enough. They are off the road.

I am finished with them."

Mr Da Deppo told Mr Holderman he would comply.

Mr Da

Deppo gives

a reason for that, whlch

is, not surprisingly, that

he did not want

to act contrary to the wishes

of the respondent,

for fear that action might be taken

against his company,

Wollongong

Constructions

Pty Llmited.

However,

there

suggestion in his

evidence that any express or, indeed, implicit

threat or inducement

brought

about

his

compliance

with the

request made by Mr Holderman. That is	of some significance, for
a reason I will mention shortly.

Mr	Oldham, a driver employed by the applicants, was

apparently put off when the respondent banned the appllcants and he protested to Mr Holderman saylng, "I have been a truck driver

with Mac Garaner, and I want to find out why

I have been put

off:

I have lust returned

from holldays, and I have no job." Mr

Holderman sald, "Oh, I suggest you ask Mac about that." Mr ,@ldham sald, "No. I want to find out from you." Mr Holderman

said, "Well

I have told Mac Gardner to get his tarps and flat

tops back on the highway where he belongs." Mr Oldham protested vigorously about the loss of his job and swore at Mr Holderman.

complalnlng of his being	out	of	work,	but	obtamed no
satisfaction.

The

conversation had

with Mr

Oldham appears to me to

assist

applicants,

as showing

that,

contrary

the

suggestion made by counsel for the respondent, the statement to

Mr Gardner by Mr Holderman, argued to be "in the heat of the

moment", was a deliberate one. He quite-deliberately carried out

-6

his threat; that

is, there is a prima facie case that the

statement by Mr Holderman that

the applicants would be put off

the road was put into effect by

hls approaching the customers and

induclnq them not to order any more material.

It	was suggested by counsel for the respondent that

there was

not shown to

a serious question to be tried

on,

among

other things, the questlon of agency. That

15,

I was

invited to hold that the appllcants had not sufficlently shown a

connection between Mr Holderman and the respondent unlon.

It was

urged upon me on behalf of the appllcants that it is extremely unlikely that the series of confrontations in whlch Mr Holderman

purported to speak

wlth

the authority

of the union took place

without Its knowledge. I agree wlth that.

It also appears to me

that the circumstance that when

Gardner went to see

Holderman he went to the union office and found two people, one

female secretary

and

one

Mr Holderman, the

former of whom

dlrected him

to the latter, is some evidence that

Mr Holderman

has not acted throughout merely

as an interloper.

10.

It is, I suppose, theoretically

possible

that

the

people such as

Citra management and the management

of Wollongonq

Constructions Pty Limited, who dealt with Mr Holderman as the

representative

the

union

the

area, did so under a

misapprehension in that he did not, in fact,

have authority to

act in matters of this sort. However, one would be reluctant to

adopt that hypothesis, in the absence

of any evidence on the part

of the

respondent

that

Mr Holderman

had

acted

such

extraordinary way.

Mr Holderman purported to have the authority

of the respondent and occupied

office

its branch in

Canberra.

It seems to me that I

do not now have to consider

rather fanciful possibilities,

but I am obllged

to hold that

there is a prima facie case on the question of agency.

I do not

have to go as far as that, as was conceded on behalf of the

respondent; it is enough to show that there is

a serious questlon

to be

tried, but

I am satlsfled that the applicants

have gone

further than that test requlres.

It would have been simple enough for the respondent to show that what purported to have been done

its behalf was done

wlthout authority and, this being a civil case, I am entltled to

be bold In drawing inferences against the respondent, which could

easily have assisted on the point by evidence, Instead

of callmg

none whatever. At this

stage, without discovery, the applicants

cannot be expected to come forward with direct evidence of

resolution of the relevant committee

of the respondent

- I do not

know if there is such

a resolution - and the absence

of a

document of that kind, heavily relied upon

by counsel

for the

respondent, does not seem to me significantly to weaken the case

for the applicants.	.
-9,

The other point taken on behalf of the respondent by Mr North was that I should not hold, if

I were otherwise satisfled

that there was shown to be

a good case for

an interlocutory

in~unctlon, that Mr

Holderman and the union acted in concert.

The point arises,

of course, because

s.45D(lA), upon which the

appllcants rely, requires that there be shown

to be

a person

acting in concert with

another, and Mr North submits that merely

to show a

prima facie case that

Mr Holderman acted as agent for

the respondent is not enough to prove that each acted in concert

wlth the other.

One provlslon of the statute whlch may be thought to

agalnst that contention

1s s.84

2 ) which reads as follows:-

"Any

conduct engaged

in on behalf of a body

corporate by a dlrec t or, asent or servant of the bod; corpokate or by any- other person ar; the dlrectlon or with the consent or agreement

(whether express or

implled) of a dlrector, agent

or servant of

the body corporate shall be

deemed,

for the purposes

of this Act, to have been engaged

in also by the body corporate."

A s was pointed out by Mr Cowdroy

for the applicants, the decision

of the

Full Court in Transport Workers Unlon

Australia and

Others v. Leon Laidelev Pty Limited (1980) 28 A.L.R.

589, is some

authority that a union may be treated as a body corporate for the

purposes of s.45D.

The precise point in issue in

the

L?. -

Laideley case was whether a State-registered union could be so treated. It seems to me however, that It is at least seriously arguable that the respondent is in the same position. That does not, however, necessarily meet the point advanced by Mr North

because, on the face

of it, there is something to be said for the

view that Mr Holderman

cannot, in one capacity,

be one

of the

persons spoken

of s.45D(lA)

and,

in another capacity, make the

respondent by the prlnciple

of the vicarious liability another

person wlth whom he has acted in concert.

However, I

have not found

it necessary to pursue that

. matter further in vlew

of the evldence given, to which I referred

earller, by Mr Da Deppo. There 1 s nothing in hls evldence, whlch 1s qulte uncontradlcted, to suggest that he was subjected to

pressure of a klnd whlch, accordmg to the submission

of M r

North, would have prevented hlm from being regarded as acting In concert. That is so , desplte the force of the contentlon that m

some circumstances,

a person whose will is overborne by threats

made by another, in such

a way as to cause him

to engage in

conduct of the kind described in s.45D(lA), may

not be thought to

13.

be in concert

with anyone.

Wollongong Constructions

Pty Limited is

not, on the

evidence, in that category. It is participating In the matter at

the instance of the union's

representative, and that seems

to me

A 1

to solve, sufficiently for present purposes, the conundrum raised

by Mr North.

Therefore, my views on the substantial questions argued are as follows. On the matter of Mr Holderman's authorlty,

hold that there is ample prima facle evidence that he was not, as

was suggested as a possibility, merely an interloper but probably

had sufficlent authority from the respondent to

act,

over this

period of monchs, as

he did. On the question

of acting I n

concert, It

seems to me there are serlous questions to be tried

on two aspects. One is whether

or not

Mr Holderman could be

caken to be acting In concert

with the respondent being, on the

vlew I take at this scage, Its agent. Secondly, there 1s the question whether Wollongong Constructions Pty Limlted is acting in concert wlth the respondent. My present view is that the

applicants, on those points, have a prima facie case, although

does not seem necessary to

g so far.

14.

I should add that the Leon Laidelev case

- upon which

considerable emphasis was placed by counsel for the applicants - must be treated with some caution, so far as the relationship between a union and its officers is concerned, because of the

reliance there placed upon s.45D(5) of

the Trade Practices Act,

as appears from the report

of the judgment of Lockhart

J. at

p.138 of 28 A.L.R.

The provision just mentioned has subsequently

been held to

be invalid by the

High Court, in Actors and

Announcers Equlty Association of Australia v.

Fontana Films Pty

(1982) 40 A.L.R. 609.

However, it is not necessary to rely,

and Mr Cowdroy for the applicants did not rely, upon

s.45D(5) to

resolve the matter presently before

me.

The last submlssion

I should mention which was made by

Mr North was that I should refrain from granting an injunction in deference to an assumed state of indignation which, it was said, Mr Holderman might harbour because of the difflculty he had in

obtaining the wage records

- that I should so refrain hoping that

the matter

wlll

sort itself out wlthout judicial Interference.

It seemed to be suggested

that,

because the statement to

Gardner about putting him off the road was merely made In the heat of the moment, Mr Holderman might now relent. If there is, as I hold, a prima facie case of conduct rendered unlawful under

s.45D(lA), it seems to me

little demeaning for the Court

timorously to refraln from saying

s o ,

in case Mr Holderman

1 s

15.

again provoked. Apart from all that, he has, of course, made to others, including Mr Dunn, Mr Oldham and Mr Da Deppo statements similar to the one It is suggested he made in the heat of the moment.

I therefore in

,tend to grant an interlocutory injunction

and would

wish to discuss its precise form

with counsel.

***A**

I order that the respondent be restrained until further order from engaging directly or indirectly in concert

with

another person or persons in conduct that hinders or prevents the

supply of sand, stone or gravel to customers

of the applicants in

the Australian Capital Territory

hinders

or prevents the

ordering of such sand,

stone or gravel from the applicants where

such conduct would

have, or be likely to

have, the effect of

preventing

substantially

hlndering

the

applicants

from

engaglng in trade

or commerce between a State and a Territory.

I	also order that the respondent be restralned until

further order from Imposing, glving effect to or enforcing any

ban on the ordering from, receipt from or delivery by, the

applicants

of sand, stone

or gravel in the Australian Capital

Territory, where such conduct would have

or be likely to have the

. .

16.

effect

of preventing or

substantially hindering the applicants

from

engaging

trade

or commerce

between a State

and a

Territory.

: certlfy that thls and the 'S-

precedmg

pages are a true copy of the reasons

for

judgment herein of His Honour

Mr. Justlce Pincus

Associate

Date

[1985] FCA 516

2 Oct 1985