GTS Freight Management Pty Ltd v Transport Workers Union of Australia

Re: G.T.S. FREIGHT MANAGEMENT PTY LTD
And: TRANSPORT WORKERS UNION OF AUSTRALIA; TRANSPORT WORKERS UNION,
VICTORIAN BRANCH; KEN McGRATH; KEITH WISE; KEVIN CONNORS; IAN JOHN
ROBERTSON and ERIC WILLIAM MARTIN
No. S G13 of 1990
FED No. 138
Contempt of Court - Trade Practices
(1990) ATPR 41-025
35 IR 228

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Von Doussa J.(1)

CATCHWORDS

Contempt of Court - alleged breaches of interlocutory order - meaning and scope of the interlocutory order - whether parts of order restraining activities in explicit terms excluded conduct which could be justified under s.45D(3) of the Trade Practices Act - whether ambiguity in order - whether wilful disobedience of order.

Trade Practices - Section 45D - whether interlocutory injunction should exempt conduct justified by sub.s.45D(3) - whether dominant purpose for which impugned conduct was engaged in was substantially related to remuneration and conditions of employment - whether conduct engaged in in concert - whether persons whose employment has allegedly been terminated in the course of a strike are "employees who are employed by the one employer" within the meaning of para.45D(3)(b)(ii).

Trade Practices Act 1974, s.45D

Briginshaw v. Briginshaw and Anor (1938) 60 CLR 336

Re Plumbers and Gasfitters Employees' Union of Australia and Anor (No. 2) (1987) 72 ALR 415

Australasian Meat Industry Employees' Union and Ors v. Mudginberri Station Pty Ltd (1986) 161 CLR 98

Re Plumbers and Gasfitters Employees' Union of Australia and Anor (No. 2) (1987) 72 ALR 415

Epitoma Pty Ltd v. Australasian Meat Industry Employees' Union and Ors (No. 2) (1984) 54 ALR 730

Tillmanns Butcheries Pty Ltd v. Australasian Meat Industry Employees' Union and Ors (1979) 27 ALR 367

Trade Practices Commission v. Guests' Garage Pty Ltd and Ors (1976) 26 FLR 433

Australasian Meat Industry Employees' Union and Ors v. Mudginberri Station Pty Ltd (1985) 9 FCR 425

Wribass Pty Ltd v. Swallow (1979) 38 FLR 92

Barneys Blu-Crete Pty Ltd v. Australian Workers' Union and Ors (1979) 43 FLR 463

HEARING

ADELAIDE

#DATE 3:4:1990

Counsel for the applicant : Mr J.R. Mansfield QC

with Mr A.D. Short

Solicitors for the applicant : Baker O'Loughlin

Counsel for the 4th, 5th and 6th : Mr R. Kenzie QC with
respondents Mr P.A. Heywood-Smith

Solicitors for the 4th, 5th and : Johnston Withers
6th respondents

ORDER

The Court orders that the notice of motion dated 15 March 1990 by G.T.S. Freight Management Pty Ltd be dismissed.

The costs of this notice of motion be reserved.

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

JUDGE1

By notice of motion dated 15 March 1990 G.T.S. Freight Management Pty Ltd ("the applicant") moved for orders that the fourth respondent Kevin Connors, the fifth respondent Ian John Robertson and the sixth respondent Eric William Martin (who together I shall refer to as "the respondents") appear before the Court at a time to be fixed to show cause why they should not be dealt with for contempt for disobeying orders made by me on 27 February 1990. The notice of motion, after service, was heard on 19 March 1990 when the Court fixed 21 March 1990 as the time to show cause. The hearing commenced on that day and continued on 22 and 26 March 1990. Evidence on behalf of the applicant was received by affidavit with the deponents, other than a deponent as to service of various proceedings, were cross-examined. The respondents adduced no evidence.

The notice of motion was in the following terms, which set out the orders of the Court made on 27 February 1990, and the statements of charge with particulars thereof (given in compliance with Federal Court Rules O.40, r.6):

"1. That Kevin Connors, Ian John Robertson and Eric William Martin appear before this Court at a time to be fixed to show cause why they should not be dealt with for contempt for breaching the Orders made by the Honourable Justice von Doussa herein on the 27th day of February 1990 whereby it was ordered:

1. That until further order an injunction be granted restraining the first respondent the fourth respondent Kevin Connors, the fifth respondent Ian John Robertson and the sixth respondent Eric William Martin and each of them whether by themselves or their servants or agents or in the case of the first respondent by their officers or members either by themselves or in combination from contravening or attempting to contravene the provisions of the Trade Practices Act 1974 namely Section 45D and in particular such respondents are restrained from doing the following acts or any of them namely:- 1.1 Directly or indirectly whether by counselling, inciting, directing, encouraging or otherwise interfering or attempting to interfere with the contractual relations between the applicant and Lindemans Pty Ltd and from being or continuing to be a party to the doing or continuing of any act that directly or indirectly causes or procures any breach by the applicant or Lindemans Pty Ltd or any other person or body of any contract (made now or hereafter) between the applicant and Lindemans Pty Ltd or the applicant and any other persons or companies for the receipt or supply of goods or materials in the course of the business of the applicant.

1.2 Directly or indirerctly interfering or attempting to interfere with the receipt or delivery by the applicant of merchandise or goods supplied by or delivered to Lindemans Pty Ltd or any other persons or companies pursuant to contractual arrangements between the applicant and Lindemans Pty Ltd.

1.3 Directly or indirectly placing any bans or limitations on the applicant taking or making delivery of merchandise or goods from or to Lindemans Pty Ltd.

1.4 In any way howsoever interfering with

hindering or obstructing the distribution and/or release of goods from the premises of the applicant or of Lindemans Pty Ltd.

2. That Kevin Connors, Ian John Robertson and Eric William Martin do show cause why fines or imprisonment or other penalties should not be imposed upon each or all of them as a punishment for contempt and as a deterrent of future conduct.

3. For an order that the respondents Kevin Connors, Ian John Robertson and Eric William Martin do pay the costs of the applicant in respect of this motion.

4. For such further or other orders as the Court deems appropriate.

STATEMENT OF CHARGES AGAINST KEVIN CONNORS Following service of the sealed order of the Honourable Justice von Doussa herein dated the 27th day of February 1990 ("the Order") upon the respondent Kevin Connors ("Connors") at about 10 am on the 28th day of February 1990, Connors:-

1. Contrary to paragraph 1.1 of the Order counselled, incited, directed, encouraged, interfered and attempted to interfere with contractual relations between the applicant and Lindemans Pty Ltd.

2. Contrary to paragraph 1.1 of the Order has been a party to acts directly or indirectly causing or procuring or attempting to cause, procure, encourage or incite breaches of contracts by the applicant with other persons or companies for the receipt or supply of goods or materials in the course of the business of the applicant.

3. Contrary to paragraph 1.2 of the Order, directly or indirectly interfered or attempted to interfere with the receipt or delivery by the applicant of merchandise or goods supplied by or delivered to Lindemans Pty Ltd or any other persons or companies pursuant to contractual arrangements between the applicant and Lindemans Pty Ltd.

4. Contrary to paragraph 1.3 of the Order placed or attempted to place bans and limitations on the applicant taking or making delivery of merchandise or goods from or to Lindemans Pty Ltd.

5. Contrary to paragraph 1.4 of the Order interfered with and obstructed the distribution and/or release of goods from the premises of the applicant. PARTICULARS OF CHARGES

Of Charges 1, 2, 3, 4 and 5

1. Connors has continued to participate in and actively maintain and cause to be maintained a picket line at the applicant's premises at Mildura, and interfered with the applicant's business there.

(a) The applicant's premises are at The Crescent, Mildura.

(b) The picket has been maintained between the time of the service of the Order on Connors at 10 am on 28th February 1990 and the filing of the applicant's Notice of Motion save that on 6th March 1990 at about 10.30 am at Mildura the picket was temporarily lifted. At about 1.45 pm on 6th March Connors caused the picket to be re-instated. No picket was in place on 12th or 13th March. A picket was in place on 14th March and is continuing.

2. On 10th March Connors followed Donald

Frederick Mathews a director of the applicant from the applicant's premises to Merbein and to Mathews home. Connors in the company of Peter Gray, Mark Gibson and Eric Martin abused and participated in abuse of Mathews and a driver Mr Carter.

Of Charges 1, 2, 3 and 5

3. Connors attempted on 28th February 1990 at Mildura to induce or threaten John Vorlicek not to load or remove goods from the applicant's premises at Mildura. STATEMENT OF CHARGES AGAINST IAN JOHN ROBERTSON Following service of the sealed order of the Honourable Justice von Doussa herein dated the 27th day of February 1990 ("the Order") upon the respondent Ian John Robertson ("Robertson") at about 10 am on the 1st day of March 1990, Robertson:-

1. Contrary to paragraph 1.1 of the Order counselled, incited, directed, encouraged, interfered and attempted to interfere with contractual relations between the applicant and Lindemans Pty Ltd.

2. Contrary to paragraph 1.1 of the Order has been a party to acts directly or indirectly causing or procuring or attempting to cause, procure, encourage or incite breaches of contracts by the applicant with other persons or companies for the receipt or supply of goods or materials in the course of the business of the applicant.

3. Contrary to paragraph 1.2 of the Order, directly or indirectly interfered or attempted to interfere with the receipt or delivery by the applicant of merchandise or goods supplied by or delivered to Lindemans Pty Ltd or any other persons or companies pursuant to contractual arrangements between the applicant and Lindemans Pty Ltd.

4. Contrary to paragraph 1.3 of the Order placed or attempted to place bans and limitations on the applicant taking or making delivery of merchandise or goods from or to Lindemans Pty Ltd.

5. Contrary to paragraph 1.4 of the Order interfered with and obstructed the distribution and/or release of goods from the premises of the applicant. PARTICULARS OF CHARGES

Of Charges 1, 2, 3, 4 and 5

1. Robertson has continued to participate in and actively maintain and cause to be maintained a picket line at the applicant's premises at Mildura, and interfered with the applicant's business there.

(a) The applicant's premises are at The Crescent, Mildura.

(b) The picket was maintained between the time of the service of the Order on Robertson at 10 am on 1st March 1990 and the filing of the applicant's Notice of Motion save that on 6th March 1990 at about 10.30 am at Mildura the picket was temporarily lifted. At about 1.45 pm on 6th March the picket was re-instated. No picket was in place on 12th or 13th March. A picket was in place on 14th March and is continuing.

STATEMENT OF CHARGES AGAINST ERIC WILLIAM MARTIN

Following service of the sealed order of the Honourable Justice von Doussa herein dated the 27th day of February 1990 ("the Order") upon the respondent Eric William Martin ("Martin") at about 10 am on the 1st day of March 1990, Martin:-

1. Contrary to paragraph 1.1 of the Order counselled, incited, directed, encouraged, interfered and attempted to interfere with contractual relations between the applicant and Lindemans Pty Ltd.

2. Contrary to paragraph 1.1 of the Order has been a party to acts directly or indirectly causing or procuring or attempting to cause, procure, encourage or incite breaches of contracts by the applicant with other persons or companies for the receipt or supply of goods or materials in the course of the business of the applicant.

3. Contrary to paragraph 1.2 of the Order, directly or indirectly interfered or attempted to interfere with the receipt or delivery by the applicant of merchandise or goods supplied by or delivered to Lindemans Pty Ltd or any other persons or companies pursuant to contractual arrangements between the applicant and Lindemans Pty Ltd.

4. Contrary to paragraph 1.3 of the Order placed or attempted to place bans and limitations on the applicant taking or making delivery of merchandise or goods from or to Lindemans Pty Ltd.

5. Contrary to paragraph 1.4 of the Order interfered with and obstructed the distribution and/or release of goods from the premises of the applicant. PARTICULARS OF CHARGES

Of Charges 1, 2, 3, 4 and 5

1. Martin has continued to participate in and actively maintain and cause to be maintained a picket line at the applicant's premises at Mildura, and interfered with the applicant's business there.

(a) The applicant's premises are at The Crescent, Mildura.

(b) The picket was maintained between the time of the service of the Order on Martin at 10 am on 28th February 1990 and the filing of the applicant's Notice of Motion save that on 6th March 1990 at about 10.30 am at Mildura the picket was temporarily lifted. At about 1.45 pm on 6th March Connors caused the picket to be re-instated. No picket was in place on 12th or 13th March. A picket was in place on 14th March and is continuing.

2. On 10th March Martin followed Donald Frederick Mathews a director of the applicant from the applicant's premises to Merbein and to Mathews' home. Martin in the company of Kevin Connors, Peter Gray and Mark Gibson abused and participated in abuse of Mathews and a driver Mr Carter."

The injunctions granted by paragraph 1 of the order were made against the Transport Workers Union of Australia ("the TWU") as well as against Messrs Connors, Robertson and Martin. By notice of motion dated 1 March 1990 the applicant moved for the punishment of the TWU for contempt for allegedly breaking the order made on 27 February 1990. That notice of motion was heard shortly thereafter by Keely J. His Honour dismissed the notice of motion on 21 March 1990. The applicant had sought to prove that the TWU had contravened the order by the conduct of the respondent Mr Connors and another person. His Honour held that it was not proved that at relevant times the two men had been acting for, or with the authority of, the TWU. The issues agitated before Keely J. were different from those which have arisen on the notice of motion now before the Court. Whilst some of the evidence heard in support of each notice of motion is similar, the parties to the notices of motion are different. Insofar as Keely J. has found facts which also arise for decision on the present notice of motion, his findings of fact are not binding on the respondents to the present notice of motion.
Similar arguments have been advanced before me as were advanced before Keely J. regarding the standard of proof which an applicant must discharge in civil contempt proceedings. The applicant contends that the civil standard of proof should be applied in the manner set out in Briginshaw v. Briginshaw and Anor (1938) 60 CLR 336 at 361-362 per Dixon J., and the respondents contend that the standard should be the criminal standard of proof. The criminal standard was applied by Wilcox J. in Re Plumbers and Gasfitters Employees' Union of Australia and Anor (No. 2) (1987) 72 ALR 415 at 436. However Keely J., in the circumstances of the proceedings before him, decided to apply the civil standard of proof. This was the standard of proof most favourable to the applicant, and as the application of that standard led to the dismissal of the proceedings, it was not strictly necessary for Keely J. to decide between the conflicting contentions of the parties, each of which has a measure of support in the authorities. Similarly, in this case, the conclusions which I have reached make it unnecessary to decide the point.

The objective facts concerning the events on which the applicant relies in support of the notice of motion are unchallenged, but the parties are not in agreement as to the inferences which should be drawn from those facts. Even if the appropriate standard of proof requires the applicant to establish facts beyond reasonable doubt, I would find the following facts so established.
At all relevant times the applicant has conducted the business of freight transporting which involves contracting to supply and deliver goods and products to all parts of Australia. It operates a fleet of 32 semi-trailers involved in interstate deliveries, and a further 9 tray-bodied trucks to make deliveries in capital cities. The applicant has depots in Brisbane, Sydney, Melbourne, Adelaide, Mildura and Euston. It has approximately 100 employees throughout Australia. Its vehicles are driven by its employees, some only of whom are members of the TWU, as membership is a matter left to employees. The applicant also uses the services of about 40 contractors.
The applicant has a contract with Lindemans Pty Ltd whereby it is agreed that the applicant shall be the exclusive carrier of wine and associated products for the company. Pursuant to the agreement, the applicant collects goods from the warehouse of Lindemans Pty Ltd at Karadoc, near Mildura in Victoria, and transports those goods by road to various destinations throughout Australia. The contract with Lindemans Pty Ltd is the applicant's major contract, and Mildura is the applicant's most important depot. Normally 26 of the applicant's 32 semi-trailers are based at Mildura so as to service Lindemans Pty Ltd. About 80% of the applicant's business through Mildura is in connection with Lindemans Pty Ltd.
The applicant was not named as a respondent to the (Federal) Interstate Drivers Award, and no State award applies to the applicant's drivers.
On 15 February 1990 a group of drivers employed by the applicant at its Mildura depot ("the applicant's drivers"), went on strike and formed a picket outside the depot. The applicant's depot faces on to a curved roadway understandably named "The Crescent". About midway along the road frontage of the depot is an office block and warehouse building. To the west, in times of normal operation, there is a gate for inward traffic, and to the east a gate for outward traffic. On the opposite side of The Crescent from the office block is a cul-de-sac named Byrne Court. When the picket commenced those people who were forming it set up camp on the junction of Byrne Court and The Crescent, that is across the road from the office block. The distance from the picket camp to the entrance gate was about 25 to 35 metres, and the distance from the picket camp to the exit gate was in the order of 150 to 200 metres. Shortly after the picket commenced, the entrance gate to the applicant's depot became locked, and for all relevant purposes has remained locked since then.
Mr Robertson and Mr Martin, prior to the commencement of the strike, were interstate drivers employed by the applicant. Mr Connors at all material times has been a representative of the Victorian Branch of the TWU.
From 15 February 1990 the picket remained in place until 6 March 1990. On that day it was removed for a short time, but replaced at about 1.45 pm. The picket was again removed on 12 and 13 March 1990 but was replaced on 14 March 1990 and remains in place. Throughout this time the number of people present at the picket camp has varied from as few as two to more than a dozen. The camp has incorporated a caravan, a portable toilet, tents and camping equipment.
At times when the picket camp has been in place, signs have been positioned in the vicinity of the exit gate from the depot. Since the injunction was made on 27 February 1990, those signs have read, variously, "G.T.S. picket line", "No scabs", and "Drivers' pay rights".
Whilst the picket camp has been in place, someone, apparently associated with the picket camp, has been stationed near the exit gate, either in a motor vehicle, or sitting on the opposite side of the road under an umbrella. Whenever a truck has approached the exit gate a message has been conveyed, to the picket camp, and people from the picket camp have moved to the vicinity of the exit gate. By means of oral abuse and physical signs the people near the exit gate have harassed the driver of the truck. The actions of these people have hindered the movement of vehicles in and out of the depot.
Between 16 February and 27 February 1990 the three respondents were present, for substantial periods of time, at the picket camp. The orders made on 27 February 1990 were served on Mr Connors at the picket camp at 10 am on 28 February 1990, and on Mr Robertson and Mr Martin at 10 am on 1 March 1990 at the picket camp.
During substantial periods since the service of the order, each of the three respondents has been present at the picket site and on occasions has moved along and across The Crescent to the exit gate to take part in conduct of the kind described when a truck has approached the exit gate.
The incident referred to in the particulars of charges against Mr Connors concerning John Vorlicek on 28 February 1990 occurred at about 2 to 2.30 pm that day. Mr Vorlicek drove his empty semi-trailer into The Crescent and parked in the roadway outside the applicant's premises. He was there spoken to by Mr Connors. Mr Vorlicek made it plain to Mr Connors that he was not there to load or unload goods at the applicant's depot, but intended only to deliver paper work from a previous load.
On 23 February 1990, when the respondents were first served with documents in these proceedings, one of the documents was an affidavit of Ross Allan Pollard, the general manager of the applicant. If the three respondents were not aware before that document was served on them, they must have been made aware by it, that the presence of the picket camp, and the conduct of persons associated with the camp, had already substantially hindered the applicant in the performance of its contractual obligations to transport the product of Lindemans Pty Ltd, and that the continuation of similar conduct would be likely to continue to hinder the applicant in the provision of those services. The affidavit of Mr Pollard disclosed that at the time of service the applicant was suffering a substantial loss of revenue. The cross-examination of the applicant's witnesses during the present hearing has disclosed that the applicant has to some extent mitigated its ongoing loss by making alternative arrangements to move goods for some of its customers, but the ongoing loss of business with Lindemans Pty Ltd is still substantial.
It is common ground that on 6 March 1990 at about 8.30 am Mr Connors and 14 of the applicant's drivers assembled in the applicant's depot yard. A conversation took place with Mr Matthews, a director of the applicant. Reference was made to an order which had been made by the Industrial Relations Commission of Victoria in Melbourne by Commissioner Neylon the preceding day. Mr Matthews said to the effect "We all know what the order was. All pickets are to be removed, including the caravan, tent and toilet. You had better get them removed. Do that and then come back and we will talk." Mr Connors and the other men left and the picket camp was removed. They reassembled in the depot yard at 10.30 am. Mr Matthews said to Mr Robertson "You can all re-apply for jobs and can come into the office two at a time". Mr Connors said "The order was they all return to work". Mr Matthews replied "No, they can re-apply to work here". That exchange led to heated argument which resulted in Mr Connors and the men leaving the depot and reinstating the picket camp. Apparently each side to the dispute had a different understanding of the order made by Commissioner Neylon. The terms of that order have not formally been proved but a note of the proceedings prepared by a solicitor engaged by the applicant was placed before the Court. The accuracy of that note has not been disputed; it records that following notification of a dispute on 23 February 1990, a summons requiring the parties to attend a compulsory conference was issued on 1 March 1990. At the conference, the Commissioner unsuccessfully endeavoured to settle the dispute by conciliation. He then announced that it was necessary to arbitrate the matter. He made an order, recorded in the solicitor's note, as follows "It is ordered that the Union and its members lift all bans and limitations and report for work at the normal shift start time tomorrow 6 March 1990".
The incident referred to in the particulars of charge against Mr Connors and Mr Martin concerning Mr Matthews occurred late in the afternoon of Saturday 10 March 1990. Mr Matthews drove a truck from the applicant's depot to the Irymple Packing Company at Merbein. As he did so, Mr Connors followed the truck in another vehicle with Mr Martin, Peter Gray, Mark Gibson, and another from the picket, as passengers. After Mr Matthews had loaded the truck at Merbein he drove it to the depot of another transport operator at Merbein where it was left. Mr Matthews then drove, with a Mr Carter (a truck driver) as his passenger, via the main street of Merbein where he stopped, to his home at Gol Gol. Mr Connors and his passengers continued to follow Mr Matthews throughout the journey from the Irymple Packing Company. At Mr Matthews' home the picketers yelled abuse including: "Scab Matthews", "Scab Carter".
On three occasions whilst the picket camp was in place people other than Mr Connors and the applicant's drivers were observed at the camp site. Mr Helms, the applicant's manager of the Mildura depot, says that on 1 March 1990 there were persons present at the camp whom he did not recognise. On Sunday 11 March 1990 he observed Mr Kon Murtikos and his son at 9.10 am at the camp. Mr Murtikos had once been employed by the applicant, but had ceased employment some months earlier. On 14 March 1990 Mr Helms again saw Mr Murtikos, this time sitting with Mr Connors and nine of the applicant's drivers around an umbrella on a lawn on the opposite side of The Crescent from the exit gate. On none of these occasions did acts of harassment take place at or near the exit gate. There is no evidence that at any time persons other than Mr Connors and the applicant's drivers were involved in activity at or near the exit gate, or in relation to a truck approaching that gate.
Upon these facts the applicant contends that the respondents have broken the prohibitions in the order made on 27 February 1990 as they have acted in contravention of the particular requirements specified in sub.paras.1.1 to 1.4 of the order. It is said that the respondents must have realised that their activities, and those of others in the picket camp, were interfering with the contractual relations of the applicant and Lindemans Pty Ltd, or with the contractual relations of the applicant with other persons; and on the facts the respondents' conduct could not be characterised as "casual, accidental or unintentional". The conduct of the respondents therefore amounted to a wilful disobedience of the order: cf Australasian Meat Industry Employees' Union and Others v. Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 113.
The respondents, on the other hand, contend that on the true meaning and scope of paragraph 1 of the order it is clear that the particular kinds of conduct enjoined by sub.paras.1.1 to 1.4 must be understood as subject to the qualification imposed by the earlier words of paragraph 1, namely that the order restrains the respondents "from contravening or attempting to contravene the provisions of the Trade Practices Act 1974 namely Section 45D." On this construction of the order, it is contended that the applicant has failed to prove that the respondents broke it. It is contended that the applicant has not proved that the conduct of the respondents was engaged in for a purpose prohibited by sub.s.45D(1), and has failed to exclude the application of the defence available under sub.s.45D(3). The primary submission of the respondents in relation to sub.s.45D(3) is that upon a consideration of the true meaning and scope of the order made on 27 February 1990, and the rolled up way in which the statements of charges are formulated, the applicant carries the onus of proving, to the requisite standard of proof, that the respondents' conduct is not within sub.s.45D(3). If this submission be wrong, and the onus is on the respondents to bring themselves within the provisions of sub.s.45D(3), it is submitted that evidence elicited from the applicant's witnesses in cross-examination, which I am yet to recount, discharges that onus.
Alternatively it is contended that if the true meaning and scope of the order does not clearly prohibit only conduct which amounts to a contravention or an attempt to contravene the provisions of s.45D, at the least the order is uncertain in this respect and the conduct of the respondents ought not in such circumstances to be punished as contempt: see Re Plumbers and Gasfitters Employees' Union of Australia and Anor (No. 2) (1987) 72 ALR 415 at 424 per Wilcox J.
Further, in the event that these contentions are rejected, the respondents argue that the charges are not made out. It is submitted that under each of sub.paras.1.1 to 1.4 of the order, even on the applicant's interpretation of the order, the prohibited conduct contemplates activity involving an interference with the contractual relations between the applicant and Lindemans Pty Ltd, evidence of which is missing in the case of charges 1, 2, 3 and 5 as Mr Matthews concedes that before 27 February 1990 Lindemans Pty Ltd had taken a unilateral decision not to perform its contractual relations with the applicant. In the case of charge 4 it is contended that the evidence fails to establish that the respondents placed or attempted to place bans and limitations on the applicant as there is no evidence of their authority over the other people involved, and the evidence disclosed that the picket camp and associated activities continued even whilst the three respondents were in Adelaide for the purposes of this trial. In the case of charge 5 it is also said that the charge is defective for failing to charge conduct interfering with the contractual relationship between the applicant and Lindemans Pty Ltd.
The construction of the order made on 27 February 1990 is of critical importance. It is submitted on behalf of the applicant that the order should not be construed in the manner contended for by the respondents, and that the conduct enjoined by the order should be ascertained from a consideration just of the language of each of sub.paras.1.1 to 1.4 of the order. It is argued that unless the order is so understood, it is not possible to determine whether the order has been broken without determining the ultimate issue in the case, namely whether or not there has been a contravention of s.45D. The order would fail to achieve the purpose and effect of an interlocutory order, the making of which is predicated only upon there being established a serious question to be tried. Rather, a construction should be adopted which gives the order a clear and certain meaning which can be enforced in civil contempt proceedings without the need to resolve difficult questions of fact and law which may arise on the trial of the substantive issues in the proceedings.
These considerations are forceful reasons why an interlocutory injunction should be granted in terms which prohibit conduct which is precisely defined, rather than described generally in terms which follow the language of a statute. But where an interlocutory injunction is made in general terms which follow the language of, or which incorporate by reference the notions of, a statute such considerations provide no ground for construing the terms of the injunction so as to give it a different meaning from that which the language of the order would ordinarily convey. If an injunction is made in general terms, complicated questions of fact and law may arise where the applicant chooses to press charges of civil contempt alleging wilful disobedience of the injunction in advance of the trial of the substantive issues. An alternative course available to the applicant would be to move the court to reconsider the terms of the interlocutory injunction and to vary them to provide greater certainty in light of events which have occurred since the making of the order if those events are not clearly within, or outside, the enjoined conduct.
In the present case, the evidence before the Court when the order was made on 27 February 1990 satisfied me that there was a serious question to be tried as to whether the conduct of the respondents was conduct proscribed by sub.s.45D(1). At that stage however the affidavits failed to disclose whether there were facts which could render the conduct of the respondents within sub.s.45D(3). The applicant's affidavits deposed to there being a strike by the applicant's drivers, and to the presence of the picket outside the Mildura depot. But the affidavits failed to reveal a reason for this conduct. On the hearing of the motion for the interlocutory injunction a letter was tendered on the applicant's behalf as evidence that Mr Connors was an officer of the Victorian Branch of the TWU. The contents of that letter raised the possibility that the strike and picket were being engaged in for a purpose substantially related to the remuneration or conditions of employment of the applicant's drivers.
In my opinion, where an interlocutory injunction is sought to restrain conduct proscribed by sub.s.45D(1), care should be taken to frame an order that does not prohibit conduct protected by sub.s.45D(3). Where the facts as disclosed in the evidence before the Court show that for one reason or another sub.s.45D(3) could not apply, this consideration does not arise. On the other hand, where the application of sub.s.45D(3) is an open possibility, an injunctive order should be framed having regard to that possibility. It may be appropriate, in all the circumstances, to accommodate that possibility in the definition of the conduct to be restrained by the injunction, and by ordering an early trial. This was the course followed by the Full Court in Epitoma Pty Ltd v. Australasian Meat Industry Employees' Union and Ors (No. 2) (1984) 54 ALR 730 at 741-742. In other cases the circumstances may lead the court to qualify the injunction by exempting conduct which is within sub.s.45D(3). An injunction so expressed was made in Tillmanns Butcheries Pty Ltd v. Australasian Meat Industry Employees' Union and Ors (1979) 27 ALR 367. Although the injunction in that case was a permanent one, the possibility of a similarly framed order in an interlocutory injunction was acknowledged by the Full Court in Epitoma at p 741.
In the present case the uncertainty as to the reason for the conduct of the respondents in my opinion required that the interlocutory injunction be qualified so as not to prohibit conduct rendered lawful by sub.s.45D(3). I agree with the submission of the respondents that the order made on 27 February 1990 should be construed against the background of the material before the Court, and the submissions put to the Court, on obtaining the order. That material and those submissions explain why an order would be made which by its terms incorporated, by reference to s.45D, a qualification that exempted from the enjoined conduct, conduct within sub.s.45D(3).
Conduct by the respondents which is within sub.s.45D(3) is not conduct in breach of the order made on 27 February 1990. And if I am wrong in this conclusion, I would uphold the respondents' alternative submission that, at the least, the inclusion of the reference to s.45D in the preamble which precedes sub.paras.1.1 to 1.4 makes the order uncertain to the extent that conduct which is within sub.s.45D(3) ought not be punished as a contempt.

The construction which I place on the order leads logically to the further question posed by the respondents' submissions as to whether the applicant was required, as an element of the charge, to exclude the application of sub.s.45D(3). Ordinarily the onus of proof under sub.s.45D(3) would lie on the persons engaging in conduct proscribed by sub.ss.45D(1) or (1A) to establish the circumstances set out in the sub-section: Trade Practices Commission v. Guests' Garage Pty Ltd and Ors (1976) 26 FLR 433 at 437; Australasian Meat Industry Employees' Union and Ors v. Mudginberri Station Pty Ltd (1985) 9 FCR 425 at 431. The respondents' submission in this case does not dispute that. The submission rests on the particular terms in which the injunction was framed and the way in which the statements of charges have been drafted. I find it unnecessary to decide whether this submission is correct. If it is not, the respondents would carry the onus of proving on the balance of probability the facts which attract the protection of sub.s.45D(3). I am of the clear view that the evidence which the respondents have elicited from the applicant's witnesses in cross-examination does so. On the balance of probabilities the following further facts are established.
In 1989 a letter of demands by or on behalf of the applicant's drivers at its Mildura depot was served on the applicant. Thereafter a delegation of three of the applicant's drivers conferred with representatives of the applicant. Early in 1990 Mr Connors sought a meeting with the applicant at the Mildura depot. This led to correspondence in February between the applicant and the Victorian Branch of the TWU concerning Mr Connors' request for a meeting. The proposed topic of the meeting was remuneration and conditions of employment for the applicant's drivers at the Mildura depot. The drivers desired to "rope in" the applicant as a respondent to the Federal Award. The applicant failed or refused to hold a meeting with Mr Connors. This led to the strike by the drivers on 15 February 1990. The strike and the picket were organised that day by Mr Robertson. Mr Connors arrived at the picket camp the following day.
On 16 February 1990 the applicant sent to each of the striking drivers, who numbered about 22, letters to the effect that if they did not return to work by 5.30 pm that day they would be regarded as having terminated their employment. The drivers did not return, and thereafter the applicant contended that they had ceased to be employees. This led to proceedings in the Industrial Relations Commission of Victoria by each of the drivers concerning their alleged dismissal. On 23 February 1990 the existence of a dispute was notified to the Industrial Relations Commission of Victoria which led in due course to the compulsory conference and order on 5 March 1990. The interpretation placed on that order by the applicant on 6 March 1990 led to the continuance of the strike. On 19 March 1990 the applicant was made a respondent to the (Federal) Interstate Drivers' Award, and immediately appealed against that decision. At some time between the commencement of the strike and that date a log of claims had been served on the applicant. All the evidence that is before the Court points to the conclusion that the dispute between the applicant and its drivers related at first to remuneration and conditions of employment, exemplified by their desire to achieve Federal Award conditions, and that from 16 February 1990 an additional purpose of their conduct related to the action taken by the applicant to terminate the drivers' employment. I find that these were the reasons which motivated the conduct of the drivers including Mr Robertson and Mr Martin. It is common ground that Mr Connors was an officer of the Victorian Branch of the TWU, and that the Transport Workers Union is an organisation of employees registered under the Industrial Relations Act 1988 (Cth). Mr Connors' communications with the applicant were in his capacity as an officer of the organisation, and on the evidence his conduct has had a common purpose with that of the drivers.
There is no suggestion made anywhere in the evidence that the applicant's drivers or Mr Connors had any motive for their conduct other than to have the applicant submit to the applicant's drivers' claims in relation to remuneration, conditions of employment and the purported termination of their employment. There is no suggestion in the evidence that the dispute at the applicant's Mildura depot is or might be part of a wider industrial campaign by the TWU.
The relevant provisions of sub.s.45D(3) read:

"(3) A person shall not be taken to contravene, or to be involved in a contravention of, sub-section

(1) or (1A) by engaging in conduct where - ...

(b) in the case of conduct engaged in by the following persons in concert with each other (and not in concert with any other person), that is to say -

(i) an organization or organizations of employees, or an officer or officers of such an organization, or both such an organization or organizations and such an officer or officers; and

(ii) an employee, or two or more employees who are employed by the one employer, the dominant purpose for which the conduct is engaged in is substantially related to -

(iii) the remuneration, conditions of employment, hours of work or working conditions of the employee, or of any of the employees, referred to in sub-paragraph (ii); or

(iv) the employer of the employee, or of the employees, referred to in sub-paragraph

(ii) having terminated, or taken action to terminate, the employment of any of his employees."

A number of matters of fact must be established for para.(b) to apply. As a starting point there must be identified a person or persons falling within the description of sub.para.(ii): "an employee, or two or more employees who are employed by the one employer". Prior to 16 February 1990 Mr Robertson and Mr Martin, and other drivers who were observed from time to time at the picket, were beyond dispute employees of the applicant. The applicant however contends that the employees abandoned their employment on that day. As Gray J. at first instance in Epitoma (1984) 54 ALR 713 at 727 said:

"It would be strange indeed if an applicant for relief under s.45D could improve its position in relation to such relief by terminating the contracts of employment of its employees."

In sub-paragraph (iv) the word "employee" appears to be used as having reference to a former employee whose employment has been terminated, and to an employee in respect of whom action has been taken to terminate the employment by the employer. In my opinion, notwithstanding the assertion of the applicant, the drivers, including Mr Robertson and Mr Martin, are "employees who are employed by the one employer", namely the applicant. See Mudginberri (1985) 9 FCR 425 at 434. Next, there must be an acting in concert between such employees and an officer of an organisation. I have already held that Mr Connors was such an officer. The conduct engaged in by the respondents must be conduct "in concert with each other". In Tillmann's case Bowen C.J. at 373 said:

"Acting in concert involves knowing conduct, the result of communication between the parties and not simply simultaneous actions occurring spontaneously."

The community of purpose suggested by the notion of acting in concert has this consensual element which I am satisfied was present in this case.

Further, the respondents must be engaged in concert with each other, "and not in concert with any other person". This raises the question whether the presence of unidentified people who were not the applicant's drivers at the picket camp on 1 March 1990, the presence of Mr Murtikos and his son at the picket camp on 11 March 1990, and the presence of Mr Murtikos near the umbrella on 14 March 1990, deprive the respondents of their protection of para.(b). In my opinion it does not. There is no evidence that these people engaged in conduct that is proscribed by sub.s.45D(1), or that they were acting in concert with the respondents. There is no evidence that any one of these people moved from the site of the picket camp (or in the case of Mr Murtikos on 14 March 1990, from the area of the umbrella) towards the exit gate to participate in acts of harassment. It does not follow from the mere casual presence of a person at the site that the person was overtly participating in the picket. The person might be there for a purpose unrelated to that of the picket, for example a police officer present at the site to keep the peace. Mere presence at the picket for social conversation does not constitute maintaining a picket: cf the presence of Mr Liddy at the picket in Mudginberri, (1985) 9 FCR 425 at 431.
Finally it must be established that the "dominant purpose for which the conduct is engaged in is substantially related to" one or more of the subjects in sub.paras.(iii) and (iv). In these proceedings the relevant conduct is that of the respondents between 28 February 1990 and 15 March 1990. During that time the purpose of the conduct of Mr Robertson, Mr Martin and the drivers substantially related to remuneration, conditions of employment, and the purported termination of their employment. Mr Connors had the same purpose as the drivers. The applicant argues however that this was the general or ultimate purpose, and that the "dominant purpose" of the picket and the harassment was to achieve the more immediate end of shutting down the Mildura depot, albeit as a lever towards achieving the ultimate purpose. The applicant sought support for this argument from the judgment of Smithers J. in Wribass Pty Ltd v. Swallow (1979) 38 FLR 92 at 102-105, especially the following passage at 103:

"It appears to me that in the context of s.45D the concept of the purpose for which the actual conduct was engaged in does not extend beyond the achievement of the goal which that conduct was capable of achieving. In relation to the conduct which prevented supplies of meat reaching the plaintiff that particular conduct could achieve nothing more than the cessation of Saturday morning trading in fresh meat by the plaintiff. That was the dominant purpose of the actual conduct. The wider and ultimate purpose of maintaining the work-free Saturday morning was the goal which it was hoped and intended would be promoted by achieving the purpose for which the actual conduct was engaged in."

In Epitoma, at first instance, Gray J. at 725-726 considered a similar argument. In reference to Wribrass Pty Ltd v. Swallow his Honour said (at 726):

"With the greatest respect, I feel compelled to differ from the reasoning of Smithers J. in that case. The application of that reasoning would be such as to render sub.s.(3) of 45D nugatory in most, if not all, cases. In any case falling within sub.s.(1) or sub.s.(1A) of s.45D, there must be a purpose of a kind described in those sub-sections. If this purpose, because of its proximate relationship to the conduct prescribed, is always to be regarded as the dominant purpose, there is no room for the operation of the defence set up by sub.s.(3)(b). In my view, the legislature has intended to exclude from the operation of s.45D conduct which is genuinely engaged in in pursuit of improvements in the terms and conditions of employment. In a case such as this, where the employees engage in what amounts to a strike, at the instigation of their own union and its officers, who are pursuing specific concessions from the employer as to the terms and conditions of employment of the employees, the section is not intended to apply. The Parliament did not intend to create a provision which could be relied upon to support 'anti-strike injunctions'. The use of the words 'substantially related to' supports this construction."

In the present case the strike, it seems, was initiated by the employees themselves which makes the argument all the stronger.

On the appeal in Epitoma, the Full Court (54 ALR 730 at 738-739) declined to express a preference for one or other of these approaches, the appeal being against an interlocutory order.
When considering whether conduct is of the kind proscribed by sub.ss.45D(1) or (1A), it will be appropriate to enquire what was the immediate purpose of the conduct: see Barneys Blu-Crete Pty Ltd v. Australian Workers' Union and Ors (1979) 43 FLR 463 at 473. This is so because for the purposes of sub.ss.45D(1) and (1A), sub.s.45D(2) provides that a person shall be deemed to engage in conduct for a purpose mentioned if he engages in that conduct for purposes that include that purpose. The immediate purpose which brings the conduct within sub.s.45D(1) or (1A) may be only one of the purposes of the respondent, and not necessarily the dominant one: Tillmann's Butcheries (1979) 27 ALR 367 at 374 per Bowen C.J. (with whom Evatt J. agreed) and at 384 per Deane J.; see also Mudginberri (1985) FCR 425 at 429. I agree with the criticism of Wribass Pty Ltd v. Swallow made by Gray J. In my opinion the dominant purpose is not necessarily to be treated as the immediate purpose which the relevant conduct is intended to achieve by those engaging in it. In the present case the evidence establishes that the dominant or governing purpose for the respondents' conduct was the defeat of the employer's opposition to the demands of the employees. It is unrealistic to suggest that the dominant purpose for which the conduct was engaged in was not substantially related to the topics of remuneration, conditions of employment, and the alleged termination of the drivers' employment.
In my opinion, as the conduct of the respondents is not conduct in contravention of s.45D, the notice of motion must be dismissed. This conclusion makes it unnecessary to consider the other submissions of the respondents.
In light of the dismissal by Keely J. of the applicant's motion charging the TWU with civil contempt of the order made on 27 February 1990, and in light of the conclusion which I have reached on the present motion, the question arises whether the order made on 27 February 1990 should be discharged. The respondents have already moved to have the order discharged, and that notice of motion may be listed for hearing at short notice.

[1990] FCA 138

03 APRIL 1990