Industrial Enterprises Ltd v Federated Storemen & Packers Union of Australia - [1979] FCA 1

CATCHVrORDS

JUDCMFh! Mo

Trade Practices - Secondary boycott - whether black ban

on goods for purpose of 'causlng substantial loss or damege

to buslness of corporation or for purpose of preventing or

substantially hindering person from engaging in trade or

commerce between Australia and places outslde Australia -

whether dominant purpose of black ban substantially related

tu conditions of employment of employees - interlocutory

injunction - balance of convenience.

IN THE MATTER of the Trade Practices Act 1974 as amended

(SS. 45 D (l), (IA), (2) and (3) and E0).

INDUSTRIAL ENTERPRISES LIMITZD & ORS. v. THE FEDEXTET)

STORENEN AND PACKERS UNION OF AUSTRALIA & ORS.

Q No. 8 of 1978

Coram: Lcckhart J.

dney

5 January, 1979

I N THE MATTER OF THE TRADE E'RACTICZS ACT 1974

I N THE FEDXRAL COURT OF .AUSTRALIA

QUEENSLAhi DISTRICT REGISTRY	Q. NO. 8 OF 1978
GENERAL DIVISION
BETWEEN:

INDUSTRIAL ENYEF.FR:SES

FTY . LTD. , ?C'V:;OOM2A

FOUNDRY FYI. LTD. , ZSUTE;XR.I L'f:'jSS ::,21!Ii.!ZF;Y (BR1SBAi.j.Z) STY. LT>. asc SO!IIi.:Zrlli C X S S DEVELOF1Ei;T FTY . L'1'3.

AND :

JUDGE MAKING ORDER:	LOCKHART J.
DATE OF ORDER:	5 JANUARY, 1979
WHERE NADE:	SYDhZY

T I E COURT OF?CXIIS ATE EDCLARES THAT:

THAT

the

r e s p o n d e n t s ,

The

F e d e r a t e d S t o r e m e n and

P a c k e r s

U n l o n

o f

E m p l o y e e s

o f

Australia

( Q u e e n s l a n d

B r a ~ c h ) 4-

J a m e s

E d w a r d

Graharr.

Bonding

a n d E r n e s t Edward

A d s e t z

u e

r e s t r a l - n e ?

u n + l l

'..e

d e t c r m l n a t l o n

o f

the

p r ? c e e d i n g s

o r

f u r t h e r 3?&r l':-,:m

Ei-:gL;;--!1S

111 tll? f0113./ilng c o n d u c t , T.251 -1 : :

(a)	supply of servlccs by R. Jackson Pty. Ltd. (~acksons), Browns Transport

conduct that hlnders or prevents the Transport), Underwood Storage Company

(1971 ) Pty. Ltd. (Underwood Storage),

Finney Brothers Transport Pty. Ltd.,

(Finney Brothers), McMlllans Customs

Services Pty. Limited (McMlllans), to the applicants or any of them in contravention of sectlon 45D of the Trade Practices Act, 1974;

(b)

conduct that hinders or prevents the consignment of goods to or by the applicants or any of them in contraven~ion

of the said sectlon;

( c )

conduct that hlnders or prevents the col1ecti:n applicants or any of them in contravention of the said section;

(d)	conduct that prevents or substantially hinders the applicants or any of thea fronl engaglng…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Industrial Enterprises Ltd v Federated Storemen & Packers Union of Australia [1979] FCA 1
Case: [1979] FCA 1
Decision Date: 5 Jan 1979

CaseChat Overview and Summary

The applicants, Industrial Enterprises Ltd, Toowoomba Foundry Pty Ltd, Southern Cross Machinery (Brisbane) Pty Ltd, and Southern Cross Development Pty Ltd, sought an interlocutory injunction against the respondents, The Federated Storemen and Packers Union of Employees of Australia (Queensland Branch), E. Zaphir, J. Forrester, and E. Adsett, to restrain them from engaging in conduct that allegedly contravened sections 45D(1), (1A), (2) and (3) of the Trade Practices Act 1974. The respondents had imposed a "black ban" on the movement of goods imported or exported by the applicants, causing substantial loss and damage to their business. The legal issues before the court were whether the respondents had engaged in conduct that hindered or prevented the supply, consignment, collection, or transportation of goods, and whether this conduct had the purpose or effect of causing substantial loss or damage to the applicants' business, as prohibited by sections 45D(1) and (1A) of the Act.

Justice Lockhart held that the applicants had established a prima facie case for an interlocutory injunction, as the respondents' dominant purpose for imposing the ban was not substantially related to the conditions of employment of employees. The ban was imposed to assist another union, A.A.E.S.D.A., in achieving its objective of increasing its membership, which was unrelated to the terms of engagement between the applicants and their employees. The court also considered the balance of convenience, finding that the applicants would suffer substantial damage if the injunctions were not granted, while the respondents had not shown any detriment that would result from the granting of the injunctions. The court rejected the respondents' contentions that the application should be refused due to the existence of a dispute pending before another tribunal or that the orders would be ineffective as other unions were also imposing bans. The court concluded that the applicants were entitled to the benefit of interlocutory injunctions to restrain the respondents from engaging in conduct that constituted or would constitute a contravention of the Trade Practices Act.

The court granted the applicants' application for interlocutory injunctions, restraining the respondents from engaging in the specified conduct until the determination of the proceedings or further order. The costs of all parties were reserved, and liberty was reserved to any party to apply on two days' notice. The respondents were restrained from preventing the supply, consignment, collection, or transportation of goods by the applicants, as well as from aiding, abetting, counselling, procuring, inducing, or attempting to induce any person to withhold labour from certain companies when and to the extent that such labour is required for the purpose of collecting, loading, or unloading goods consigned to or by the applicants. The injunctions were to apply except where the conduct fell within the description in paragraphs 45D(3)(a) or (b) of the Act.

Orders