Jencar, D. v Richard Crookes & Associates Pty Ltd

[1987] FCA 14

IN THE FEDERAL COURT OF AUSTRALIA	)
m SOUTH WALES DISTRICT REGISTRY	1 No. G226 of 1986
GENERAL DIVISION	)

IN THE MATTER of the Trade Practices

Act 1974

BETKEEN: DOUNSKA JENCAR

Applicant

m:	ASSOCIATES PTY LIMITED AND
RICHARD CROOXES AND
OTHERS

Respondents

CORAM: Evatt J

-	DATE : 22 January 1987
PLACE : Sydney

MINUTES OF ORDER

On 12 August 1986 the Court ordered that the application by way

of interlocutory relief referred to in the application herein

dated 6 June 1986 be dismissed and reserved costs.

THE COURT ORDERS THAT: ’

the applicant pay each of the respondent’s costs	of and
incidental to the application for interim relief.

Note: Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

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! IN THE FEDERAL COURT OF AUSTRALIA ) No. G225 of 1986

NEW SOUTH WALES DISTRICT REGISTRY 1 No. G226 of 1986

I	GENERAL DIVISION	)	No. G227 of 1986
1	No. G229 of 1986

IN THE MAm of the Trade Practices

Act 1974, Section 45E(1)

BETPEEN: ALLAN VICTOR MaLLARxEY AM)

ANOTHER

First Applicants

m: CONSTRUCTION ENGINEERING

AUSTRALIA FTY LIMITED	AND
OTHERS

BETWEEN: DOUNSKA JENCAR

Second Applicant

m: RICHARD CROOKES AND

ASSOCIATES PTY LIMITED	AND
OTHERS

B€ZIXEFX: EDWARD JOSEPH McNAMARA

Third Applicant

m: LEIGHTON CONTRACTORS PTY

LIMITED AND OTHERS

BFXWEEN: RODNEY CAMPBELL

Fourth Applicant

-	AND:	WHITE INDUSTRIES PTY
LIMITED AND OTHERS

_ _

CORAM: Evatt J

- DATE : 22 January 1987 .

PLACE : Sydney

2.

REASONS FOR JUEMENT

On 5 May 1986 the Court, as presently constituted, in matter

G164l86, Roberts v Murlar Ptv Limited & Others (Roberts' case),

made certain interlocutory orders against he applicant's

employer, the first named respondent including the following:

That the first named respondent continue to employ the

applicant without imposing conditions	on such employment,
that the applicant,

(a) resign from the Australian Building Construction

Employees' and Builders Labourers' Federation;

(b) become a member of the Building Workers' Industrial

Union of Australia;

(c)	surrender his membership with the Australian Builders
Construction Employees' and Builders Labourers'

Federation.

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The Building Korkers' Industrial Union of Australia, (the BWIU or

the organization) an organization of employees registered under

the Conciliation and Arbitration Act 1904 was named as the second

respondent in that matter. the third respondent being an official

within the organization being its job steward at Mr Robert's then place of work, whilst the fourth named respondent was the person

whom it was alleged gave directions on behalf of the employer to

the applicant as to the work he was required to do at that place

of- work. In that matter; as appears from the statement- of claim

filed therein, the applicant, following his dismissal from work

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by the first named respondent, alleged a contravention by the

first named respondent and the second named respondent, the

organization, of paragraph 45E(l) of the Trade Practices Act 1974

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3.

(the Act) and made application for interim orders as set out

therein.

Section 45E(1) reads:

45E.(1) Subject to this section, a person who has been

accustomed, or is under an obligation, to supply goods or

services to, or to acquire goods or services from, a second

person shall not make a contract or arrangement, or arrive at

an understanding, with a third person (being an organization

of employees, an officer of such an organization, or another

person acting for or on behalf of such an organization or

office?) the if proposed contract, arrangement or

understanding contains a provision that -

(a)e has the purpose of preventing or hindering the

‘ : first-mentioned person from supplying or continuing to

supply any such goods or services to the second person

or, as the case may be, from acquiring or continuing to

acquire any such goods or services from the second

I person;

(b) has the purpose of preventing or hindering the

first-mentioned person from supplying or continuing to

supply any such goods or services to the second person

except subject to a condition (not being a condition to

which the supply of such goods or services by the

first-mentioned person to the second person has

previously been subject by reason of a provision of a

contract existing between those persons) as to the

persons to whom, as to the manner in which, or as to the

terms on which, the second person may supply any goods

or services; or

(c) has the purpose of preventing or hindering the

first-mentioned person from acquiring or continuing to

acquire any such goods or services from the second

h person except subject to a condition (not being a

condition to which the acquisition of such goods or

.	services by the first-mentioned person from the second
person has previously been subject by reason of a
contract existing between those persons) as to the
persons to whom,. as to the manner in which, or as to the
terms on which, the second person may supply any goods

or services.

“Services” are defined in the Act as:

"Services" includes any rights lincludinq rights in relation

to, and interests in, real or personal property), benefits,

privileges or facilities that are, or are to be, provided,

granted or conferred in trade or commerce, and without

limiting the generality of the foregoing, includes the

rights, benefits, privileges or facilities that are, or are

to be, provided, granted or conferred under -

(a) a contract for or in relation to -

(i)the performance of work (including work of a professional nature), whether with or without the supply of goods;

(ii)the provision of, or of the use or enjoyment

of facilities for, amusement, entertainment,

recreation or instruction; or

(iii) the conferring of rights, benefits or

privileges for which renumeration is payable

in the form of a royalty, tribute, levy or

similar exaction;

(b) a contract of insurance;

(c) a contract between a banker and a customer of the

banker entered into in the course of the carrying on

by the banker of the business of banking; or

(d) any contract for or in relation to the lending of moneys,

but does not include rights or benefits being the supply of

goods or the performance of work under a contract of service;

When the matter was called on for the hearing of the application for interim orders there was no appearance by the first named

respondent employer. Even though the hearing of the interim

application extended beyond one day, at no stage was the first

-

named respondent represented before the Court.

The alleged facts leading up to the applicant's dismissal from work in that case were that at all relevant times the applicant

had been a member of the Australian Building Construction

Employees and Builders Labourers' Federation (the BLF); that he

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i was not a member of the BWIU nor did he wish to become a member

of that organization; that on 28 April 1986 he was directed to

attend at the first respondent's office at Rydalmere and there

spoke with the fourth named respondent and asked by him to sign

an application form to become a member of the BWIU. After

signing the said form, the applicant was asked to surrender his BLF ticket and was told that if he did not hand that ticket over,

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he would not have his job with the first named respondent. This

he refused to do and was then dismissed. Other details of the

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circumstances surrounding that applicant's dismissal are fully

set out in the ex tempore reasons for judgment given on 5 May

1986 (not yet reported).

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At the conclusion of the evidence, Mr Rothman of Counsel, who

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I	appeared for the BWIU, submitted that accepting for the purposes
of argument the facts as disclosed in the affidavits and the
particulars set out in the statement of claim, any "services"
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which the first named respondent, the employer, had been
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accustomed to acquire from the applicant, were but he
performance of work under a contract of service and that that
being so, were by definition (see 5.4 of the Act) excluded from
the meaning of "services" in s.45E(l). Mr Oslington QC, who with
Mr Haylen appeared . .for .Mr ---Roberts, argued - that - --the--word - - - - - -
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"services" is given a very wide and inclusive meaning and after
lengthy submissions persuaded the Court that there was, on those
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I	facts, an arguable case to be presented to the Court by the
applicant at the hearing of the matter, particularly as regards

paragraph (c) of s.45E(1). that the "services" alleged to have

been acquired by the employer respondent from the applicant and

the acquisition of which had been prevented by the alleged

arrangement between the employer and the BWIU went beyond the mere performance of work under a contract of service. It is stressed that the Court on that interlocutory application did not

have the advantage of hearing evidence from or submissions

generally from the respondent employer.

Accordingly, in all the circumstances the Court, being satisfied that the balance of convenience was clearly in the applicant's

favour, made the above interim orders on 5 May 1986. Perhaps it

should be presently noted that the BWIU in that case had not led

any evidence to support a submission made by Mr Rothman that the

granting of the said interim orders could well lead to industrial

problems at the particular building site at which the applicant

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was employed or at any such site to which the applicant might be

sent to work pursuant to any order f the Court.

Roberts' case came on for hearing before Pincus J, commencing 12

August 1986. Judgment, dismissing the application was given on

22 August 1986 (not yet reported).

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Further, it was notorious that some few weeks before 5 May 1986,

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the BLF had been deregistered pursuant Commonwealth o

legislation (Acts No. 6 and 7 of 1986 (Cwlth)) and, as a

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consequence of the said legislation, was unable to represent its

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members on building sites throughout various parts of Australia

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i	including New South Wales and Victoria or be	a party to any
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federal award, or represent those members before the Federal

Arbitration Commission. Legislation having similar consequences

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within New South Wales and Victoria was enacted by both the New

South Wales and Victorian Parliament.

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<It was also notorious that at that time several members of the

i	, BLF remained, as they claimed, loyal to the	BLF and refused not
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i	only to resign from the then unregistered association but also
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refused to join the BWIU. Further, it was notorious that the
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policy of “no ticket-no start“ was strictly adhered to by all
I	unions in the building industry in those States and that
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employers generally in the building industry in those States
followed such a policy. A further consequence of the enacting of
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l	the said legislation and regulations made thereunder was that
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thereafter the work which was formerly covered by the BLF was
allocated to (inter alia) the BWIU leading to a new Award
covering work formerly covered by the Building Construction
Employees and Builders Labourers (Consolidated) Award 1982, which
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earlier Award had been binding on the BLF,being handed down by
the Federal Arbitration Commission on 25 June 1986, effective on
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and from 16 May 1986 (see Print G 3455).

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I It is clear in my view that the expressed reasons for granting

the said interim orders in Robert’s case had been either

misunderstood of deliberately misrepresented by the BLF and its

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8.

officials. it being immediately claimed by the BLF and those

officials that the Court had ordered reinstatement of a BLF

member who had been dismissed by his employer for refusing to

join the BWIU and that all members who had been so dismissed

should as a result of	that decision be reinstated by their
respective employers.

This then was history immediately before the filing in this

Court of five applications, including the four particular matters

shown in the heading hereof, on 6 June 1986.

In each of the above-listed four matters the applicants in their original statement of claim alleged a contravention of s.45E(1)

of the Act by their respective employer, each being	a corporation
within the meaning of the Act and the BWIU and the Master each respective applicant.

The additional fifth application filed on 6 June 1986 was matter

No. G228/86, Siddons v Kern Konstructions Pty Limited and Others,

wherein Mr Siddons alleged a similar breach of s.45E of the Act

by his employer, Kern Konstructions Pty Limited, the BWIU and the

Master Builders' Association of New South Wales.

The five matters were listed on 16 June 1986 for the hearing of

the applicants' application for interim orders. Mr Oslington QC

with Mr Wheelhouse. appeared for all applicants and Mr Tobin QC

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with Mr Rothman and Mr G. Harris, appeared for the BWIU. Mr

Callaghan of counsel appeared for the Master Builders Association of New South Wales, a named respondent in all matters other than

G225186. Additionally, in G225f86, Mullarkev and Another v

Steven Crabb and Others (Mullarkey's case), Mr Wren QC with Mr

Lawrence appeared for the State of Victoria and for Mr Crabb, the

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then Minister for Industrial Relations in the Victorian

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l	Government; whilst Mr Trew QC with Mr Vickery appeared for the applicants' employer, Constructions Engineering Australia Pty Limited; Mr Dejula, the employer's representative who terminated the applicants' employment and for the sixth respondent, the
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Master Builders Association of Victoria; In matter G226f86,
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!	Jencar v Richard Crookes and Associates Ptv Limited and Others
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1	(Jencar's case). Mr McDevitt of counsel appeared for the first
named respondent, the applicant's employer, and for Mr Barry
Murphy and Mr Jack Campbell, respectively the employer's Regional
Manager and foreman; In matter G227186, McNamara v Leiqhton
Contractors Ptv Limited (McNamara's case), Mr Holmes of counsel appeared for the first named respondent, the applicant's employer
and its project manager, Mr Simon Oliver; In matter G228186,
Siddons v Kern Konstructions Pty Limited and Others (Siddons'
case), Mr Ashburner of counsel appeared for the first respondent
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!	employer; in matter G229186, Campbell v White Industries Ptv
i	Limited and Others (Campbell's case), Mr McCarthy and Mr Lamprati appeared for the first named respondent employer and Mr Phi1
i	Mouton and Mr Ron Moses respectively the employer's project
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manager and foreman.
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Appearances having been taken in all matters. the Court suggested that the application for interim orders in the then five matters could be heard together. This was objected to by the respective respondents but each indicated that they were quite happy to have

such applications for interim orders heard each following the

other with all parties’ counsel in attendance, but on the clear

understanding that the evidence in one case was not to be used as

evidence in any other unless consented to. On the belief that

this would have an overall effect of shortening each matter, that

procedure was adopted.

It is convenient at this stage to point out that early during the

I	hearing	of	the	applications	Mr	Siddons	in	matter	No. G228/86,
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I	through his counsel, withdrew his application for interim orders for reasons which need not be stated. Accordingly, that matter was then stood over for further directions.
At an early stage Mr Oslington indicated that the applicants were
not seeking interim orders against he Master Builders
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Association of New South Wales. Mr Callaghan then sought leave,
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I	which was granted, that he be excused at will, indicating that he .
wished to put final submissions to the Court as to the proper
construction of s.45E(1) .of the Act. This he did on 12 August
I	1986.

11.

When the first matter was called- on for hearing on 16 June 1986,

I	Mr Uren immediately submitted that the Court had no jurisdiction
to hear the application against his clients as the Act did not
!	apply to the Crown in right of any of the States or any
instrumentality or any agent of the State of Victoria (see s.2A
of the Act and Bradken Consolidated Ltd v Broken Hill Proprietary
CO Limited (1979) 145 CLR 107). Mr Oslington then withdrew the
claim against Mr Crabb and the State of Victoria indicating that
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formal notice of discontinuance in that regard would be filed.
i	This in fact was done on 16 June 1986. Despite such withdrawal
I	Mr Uren sought leave to appear with Mr Lawrence as amicus curiae.
After hearing submissions in this regard the Court, being
i	satisfied that any orders against the employer respondent in that
case may well affect the rights of the State of Victoria and Mr
Crabb, granted such leave (see Sharkev & CO Ptv Limited v Fisher
(1980) 50 FLR 130).
Affidavit and oral evidence was led in each of the four matters. In all, the hearing of the evidence in all four matters occupied
some nine days up until the morning of 4 July 1986. On the
afternoon of 3 July 1986 Mr Oslington had indicated that
overnight he applicants intended to prepare an amended
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i	application-lnieach of the four matters. At the conclusion of
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the evidence on 4 July, discussion took place between Counsel and
the Court as to future programming for the hearing of
submissions, the parties having been made aware sometime before that owing to its commitments, the Court would not be able to

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12.

further sit in the matter until early in August. Mr Oslinqton

then indicated that he had reduced the applicant’s submissions on

!	the matter of principle	to writing which were then handed up. He
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i	then commenced to speak	to his written submissions. At that
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stage Mr Uren reminded the Court that there had been some

discussion on 3 July of amending the application in each of the

matters and that he did not wish to prepare further written

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submissions during the adjournment in July if the application as

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I	filed was to be amended. Amended applications apparently had at
I	that stage not been completely engrossed so the Court permitted
Mr Oslington to address. Mr Oslington finished his oral
I	submissions shortly before 1.00pm when the Court adjourned for
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lunch. On resuming at 2.15pm Mr Oslington sought leave to file
I	an amended statement of claim in each of the four matters which
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were accepted after it was indicated that the respective
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respondents had no objection.
Paragraph 6 and 12 of the mended statement of claim in
Mullarkev‘s case reads:

i The first respondent (employer) has been accustomed to

I	acquire services from the applicant.
I	PARTICULARS :
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I	The applicant was employed by the first respondent for
approximately 12 months prior to April 1986 to perform work
i	as a builder’s laboufer (for the first respondent during that
i	period. (Emphasis added).

Whilst the other statements of claim vary marginally as to length

I	of previous work, the substance of paragraph	6 does not vary.
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The amended statements of claim set out further particulars of

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I other alleged services. These appear in paragraph 12 of the

I	statement of claim in Mullarkev's case and in paragraph	7 in the
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I	other matters. Paragraph 12 (or 7) reads:

l	arrangement
Further, prior to

23 April 1986, the first respondent made an

or came to an understanding with the second

respondent andlor the third respondent which contained a

provision for the purpose or purposes which included the

purpose of preventing or hindering the first respondent from

acquiring and continuing to acquire the services from the

applicants except subject to a condition (which was not a

condition to which the acquisition of such services had

I previously been subject to) that the

I applicants:

I (i) resign from the Australian Building Construction

Employees and Builders' Labourers' Federation;

(ii) become	a member of the second respondent.
PARTICULARS

A	The particulars of the said services are:
(a) the right, benefit or privilege of having a free

selection in the class of persons to perform work without reference to membership or non-membership of any particular trade union, organisation or

federation;

(b) the right, benefit or privilege of accepting an

offer by a person to enter into a contract of

service without reference tohat person's

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membership of any particular	t ade	union,
organisation or federation;

i - __ -. - - __ (-c)---th~right~-benef-it --or privi-Lege -of--retaining-in

! employment a person without reference to that

l	particular trade union, organisation or federation;
person's membership or non-membership of any

(d)	the right, benefit or privilege of not having to terminate or suspend a person from employment
because that person's of membership or
non-membership of any particular trade union,

organisation or federation;

. . ..

14.

(e) the right, benefit or privilege of not having to

require persons employed to become a member of a

particular trade union andlor resign membership of

a trade union, organisation or federation.

This paragraph as paragraph 7 is repeated in each of the other

three amended statements of claim, the only variation being the

date in April	1986 prior to which the alleged arrangement etc was
made.

Mr Uren then addressed the Court in support of his written

submissions up until 4.30 pm when the matter was stood over

part-heard until 8 August 1986.

When the matter resumed on Friday, 8 August 1986 Mr Wheelhouse,

in the absence of senior counsel for the applicant, sought leave

to further amend the statement of claim in all matters, copies of

which had only some minutes before been handed to the respective

parties. Objection was taken by all parties to the filing of the

further amended statements of claim at that stage of the

proceedings. It was uggested by at least some of the

respondents, if not all, that if accepted it would be necessary

that each matter be re-opened in order that further evidence

might be called. After hearing argument the Court adjourned at - -.-

the request of Mr Wheelhouse so that he might seek instructions.

When the Court resumed at 11.30am. Mr Oslington who was part

heard in another Court and who had been granted short leave of

absence therefrom stated,

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15.

I have been told Your Honour there is some difficulties with

I the amendment. May I simply say this Your Honour, that the

l	amendment only seeks to accommodate that which Mr Uren
I	addressed the last on occasion.
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The Court thereafter during 8 August heard submissions from all

parties as to whether the further amended particulars of claims

should be received at that stage of the respective proceedings

before adjourning the matter to Monday, 11 August 1986.

On 11 August 1986 Mr Levine QC with Mr Rudge announced his appearance for the applicants in each of the four matters. The

Court, during the forenoon, heard submissions from M Levine and

counsel for some of the respondents in respect of the filing of

the further amendments. On resuming at 2.15pm Mr Levine stated:

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MR LEVINE: Your Honour, on Friday on behalf of each of the

applicants, an application was made to your

Honour to file a pleading described as a further

amended statement of claim. There has. as I

understood it on Friday and today, taken place

argument as to whether or not your Honour should

allow the amendment or amendments sought to be

made as constituted in that

document. MY

instructions are to inform your Honour that the

application to amend is withdrawn.

M R m:	Costs, your Honour?
HIS HONOUR:	I will reserve costs. That is to say, we are back to the application as formerly filed and the
statement of claim-that was filed in court on 4
July 1986 which is called the amended statement
of claim.
M R LEVINE:	That is kight. Our present position is, your
Honour, that the applicants seek relief, or

I interlocutory relief; and their case is as set

out and pleaded in the document hitherto

described as the amended statement of claim on	4
July.

16.

HIS HONOUR: And the applicapts submissions are as put by Mr

Oslington on 4 July?

MR LEVINE: That is right, your Honour.

HIS HONOUR: I do not know whether Mr Wheelhouse added to

those other than to seek leave to file the

amended statement of claim.	I do not think	he
did.

MR LEVINE:	In any event, your Honour, the position is this:
that no further submissions are to be made on
behalf of the applicants in support of that case. made hitherto: and in the light of what your
Honour has just said as to costs, I have nothing
further to say; and with no disrespect either to
the court, and it is not to be taken in any
disparaging way of the applicants for whom I have
appeared this morning, but I would seek your

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Honour's leave to withdraw with my junior, and my

clients will be represented by an attorney, Mr

Isaksen, for the balance of these proceedings.

Thereafter and on the following day, 12 August 1986, Mr Trew, Mr

McDevitt, Mr Callaghan, Mr Holmes, Mr Rothman and Mr McCarthy put

submissions on behalf of their respective clients opposing the

granting of any interim orders. The Court then invited the

solicitor for the applicants to put any submission in reply

orally, indicating that it was not intended to grant an

adjournment to enable such submissions to be reduced to writing.

The applicants pressed for such an adjournment. After hearing

the solicitor for the applicants the Court refused that

application stating:

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HIS HONOUR:	In the matters presently before the Court, Nos G225, 226, 227 and 229 of 1986 I reject the application that the matters be adjourned to
enable the appllcants to await the transcript so
that either Mr Oslington or Mr Wheelhouse, who
are otherwise engaged this week, can read the
transcript and make written submissions in

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reply. reject I hat application in the

circumstances. Without detailing hose

circumstances at this stage it s not proper, in

my view, that the matter should be delayed any

further as I am of the firm view that the court

should indicate its decision as to the

application for lnterlocutory relief in the

various matters and I feel sure there is nothing

that can be put in reply which would cause the

court to change that view.

In all the circumstances, in each of the matters

where each of the respective applicants seeks

interlocutory relief against nominated

respondents I am of the view that he

interlocutory relief sought in each respective

matter should be refused for varying and various

reasons. I will publish full reasons in each

matter together with orders as to costs.

An essential condition for a breach of s.45E to have been

committed 1 s that a person must have been accustomed, or under an

obligation, to supply or acquire goods or services to or from a

second person. The two persons in these matters, as pleaded,

were the employer as the first person and the employee as the

second and the allegation was that such employer acquired

services from the employee.

It is clear that the performance of work under a contract of

service is excluded from the meaning of "services" within s.45E.

It will be seen that paragraph 6 of all the amended statements of

claim have the performance of work as the particulars of the

services acquired by the .first respondent employer.

All applicants being employed under a contract of service thus

allege that the services the employers have been accustomed to

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19.

acquire from the applicant are the performance of work. This is

not a service within the definition of "services" in the Act

I	because it has been expressly excluded from that definition (see
I	5.4). Thus paragraph 6 of each amended statement of claim does not support a cause of action alleging a breach of s.45E.
l	Turning then to paragraph 12 (or 7 ) . First, it is extremely
1	unlikely that any of paragraph 12 (or 7 ) services are in fact
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!	services within the meaning of the Act. They do not fit within
I	the language of the statute. In my view, the elements of the
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performance of work under a contract of service, such as the
l	initial offer to work is an integral part of the performance of
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I	work and should not be treated separately so as to constitute a
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service distinct from the performance of work.
Secondly, assuming that any of the said services constituted a
service within the meaning of the Act, they are not services which, according to the language of the statute, the employer had
been accustomed to or under an obligation to acquire from the
employee. For example, the right, benefit or privilege of having
a free selection in the class of persons to perform work is
derived from the general law and not acquired from the applicant.
For this reason the said services in paragraph 12 (or 7 ) of the
amended statement of claim are in my view not services acquired
by the employer from the applicant. In this regard I agree with
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I	and adopt the reasons of Pincus J in Roberts v Murlar Pty Limited
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& Others at p 20 of his roneoed reasons for judgment delivered on
22 August 1986.

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1 Further, it is alleged by

each of the applicants that there was

an arrangement or understanding between their respective employer

and the BWIU. That arrangement, so the argument goes, prevented

the alleged services being acquired from the applicant by the

employer unless the applicant became a member of the BWIU.

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l	!	The evidence is that members of the BWIU would not work with
i	non-members who were performing BWIU work. This, in effect, is
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the "no ticket-no start" principle which, as pointed out earlier
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!	herein, has operated in the building industry for many years and
!	1s recognlsed not only by Unions but by most, if not all
l	employers In that industry. Assuming, for argument, such
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I	arrangement exists, such arrangement would, in my view, be
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directed to the performance of work by the non-member applicant and not the alleged services set out in the particulars filed
under paragraph 12 (or 7 ) .
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i	For example, the arrangement does not affect the employer's free
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I	selection in a class of persons to perform work. The employer
can still employ any person he wishes to. What the arrangement
affects is the ability of that employee to actually perform work
at a building site under the contract of service.
For these reasons the Court on 12 August 1986 was of the opinion
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that the interlocutory mandatory injunction sought by each
i	I	appllcant in each of the cases should be refused. The test for
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granting such a mandatory injunction is set out in the judgment

of Gibbs CJ in The State of Oueensland v Australian

Telecommunications Commission (1985) 59 ALR 243. It is not

sufficient that there merely be a serious question to be tried

but the Court needs to have "high degree of assurance" that the

applicant will succeed before granting such an injunction, even

if the balance of convenience is in favour of the applicant.

It is unnecssary in my view to make reference to the evidence in

each matter convenience. Suffice it to say that that evidence is such that the Court would not have found in the applicants' favour In most, directed to the question of the balance of

if not alltof the matters on the point. In this regard there was

evidence which is accepted that should the Court make orders as asked then there was a real possibility that industrial unrest at various building sites would follow.

Nor it is necessary that any definitive determination be made as applicants in those two matters was work being performed on

to submissions put by the respondents in Mullarkev's case and

behalf of the Victorian and New South Wales Governments

respectively, then the section of the Act does not apply (see

Bradken's case and Sharkey's case).

"he applications by way of interlocutory interim relief were

rejected by the Court on 12 August 1986. The formal orders of

the Court in

each interlocutory relief set out in each application is dismissed. matter -is that he application for

I	Each applicant is to pay the respective respondent’s costs	of and
I	incidental to each respective proceeding.
I

I certify that this and the # u u k

preceding pages are a true copy of the

Reasons for Judgment herein of his

Honour Mr Justice Evatt

Associate

Dated: 22-J , f9s7

Counsel f o r	the applicants	in G225186: Mr Oslington QC and	Mr
Wheelhouse.

Counsel for the lst, 3rd and 4th respondents in G225186: Mr Trew

QC and Mr Vickery.

Counsel for the 2nd respondent in G225186:	Mr	Tobin QC,	Mr
Rothman and Mr Harris.

Counsel for the State of Victoria and Mr Steven Crabb, Minister for Industrial Relations in the Victorian Government: Mr Uren QC and Mr Lawrence, as amicus curiae.

Counsel for the applicants	in G226186: Mr Osllnqton QC and Mr
Wheelhouse.

Counsel for the lst, 4th and 5th respondents in	G226186:	Mr
McDevitt

Counsel for the 2nd respondent in G226186:	Mr	Tobin QC, Mr
Rothman and Mr Harris.

Counsel f o r the 3rd respondent in G226186: Mr Callaqhan.

Counsel for	the applicants in G227186:	Mr Oslington QC and Mr
Wheelhouse.

Counsel for the 1st and 4th respondents in G227186: Mr Holmes.

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22.

i I Counsel f or the 2nd r ,espondent in G227186: Mr Tobin QC, Mr

Rothman an d Mr Harris.

!

Counsel for the 3rd respondent in G 2 2 7 / 8 6 : Mr Callaghan.

Counsel for	the applicants in G229186:	Mr Oslington QC and Mr
Wheelhouse.

Counsel f o r the lst, 4th and 5th respondents in G229186: Mr

i	McCarthy and	Mr Lamprati.
~
I

Counsel for the 2nd respondent in G229186: Mr Tobin QC, Mr

Rothman and Mr Harris.

I

Counsel for the 3rd respondent in G 2 2 9 / 8 6 : Mr Callaghan.

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