McNamara, E.J. v Leighton Contractors Pty Ltd

[1987] FCA 15

:

)

)	No. G227 of 1986
)

IN THE MATTER of the Trade Practices

Act 1974

BEXHEEN: JOSEPH McNAMARA

Applicant

m: LEIGHTON CONTRACTORS PTY

LIMITED AND OTHERS

Respondents

CORAM: Evatt J

i	:	22 January 1987
I	I

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.

. _ - . __

I 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 1 No. G225 of 1986

i	NEW SOUTH WALES DISTRICT REGISTRY	1	No. G226 of 1986
I	GENERAL DIVISION	)	No. G227 of 1986
I	1	No. G229 of 1986
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I	IN THE MATTER of the Trade Practices
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Act 1974, Section 45E(1)
i	I	BFIWEEN: ALLAN VICTOR MULLARKEY AND

ANOTHER

First Applicants

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I	E:	CONSTRUCTION ENGINEERING
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I	AUSTRALIA PTI LIMITED AND
I	OTHERS
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BETWEZN :	DOUNSKA JENCAR

Second Applicant

AM):

RICHARD CROOES AND

ASSOCIATES PTY LIMITED AND

OTHERS

BEIWEEN :

EDWARD JOSEPH McNAMARA

Third Applicant

m: LEIGHTON CONTRACTORS PTY

I	LIMITED AND OTHERS
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BETWEEN: RODNEY CAMPBELL

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Fourth Applicant

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m:	WHITE INDUSTRIES P T Y
LIMITED AND OTHERS

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CORAM: matt J

- DATE : 22 January 1987 .

PLACE: Sydney

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REASONS FOR JUDGMENT

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

G164186, Roberts v Murlar Ptv Limited & Others (Roberts' case),

made certain interlocutory orders against he applicant's

employer, the first named respondent L cludmg 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.

The Building Workers' 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(1) of the Trade Practices Act 1974

_ . .

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) has the purpose of preventlng or hindering the

,.e 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
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

- 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 (includinq riuhts 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 applicatlon

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 appllcant

had been a member of the Australian Buildlng Construction

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

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5.

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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

I	signing the said form, the applicant was asked to surrender his
I
I	BLF ticket and was told that if he did not hand that ticket over,
he would not have his job with the first named respondent. This
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he refused to do and was then dismissed. Other details of the
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1	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).
At the conclusion of the evidence, Mr Rothman of Counsel, who
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"
which the first named respondent, the employer, had been
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 - - -
"services" is given a very wide and inclusive meaning and after
lengthy submissions persuaded the Court that there was, on those
!	facts, an arguable case to be presented to the Court by the
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I	applicant at the hearing of the matter, particularly as regards
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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 in ustrial

problems at the particular building site at which the applicant

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

sent to work pursuant to any order of 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).

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

the BLF had been deregistered pursuant Commonwealth o

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

consequence of the said legislation, was unable to represent its

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members on building sites throughout various parts of Australia

including New South Wales and Victoria or be a party to any

federal award, or represent those members before the Federal

Arbitration Commission. Legislation having similar consequences

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

South Wales and Victorian Parliament.

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

BLF remained, as they claimed, loyal to the BLF and refused not

only to resign from the then unregistered association but also

refused to join the BWIU. Further, it was notorious that the

policy of "no ticket-no start" was strictly adhered to by all

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I unions in the building industry in those States and that

!	I	employers generally in the building industry in those States
I
followed such a policy. A further consequence of the enacting of
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I	the said legislation and regulations made thereunder was that
I
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 earlier Award had been binding on the BLF,being handed down by the Federal Arbitration Commission on 25 June 1986, effective on
and from -16 May 1986 (see Print G 3455).
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

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.

i	In each of the above-listed four matters the applicants	in their
original statement of claim alleged a contravention of	s.45E(1)
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I of the Act by their respective employer, each being a corporation

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within

the

meaning

of

the

Act

and

the

BWIU

and

the

Master

!

Builders Association for the State where each employer employed

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each respective applicant.

!

The additional fifth application filed on 6 June 1986 was matter

No. G 2 2 8 f 8 6 , Siddons v Kern Konstructions Ptv 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

. .

9.

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

G225/86. Additionally, in G225186, Mullarkev and Another v

Steven Crab and Others (Mullarkev’s case). Mr Wren QC with Mr

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

then Minister for Industrial Relations in the Victorian

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

Master Builders Association of Victoria; In matter G226/86,

Jencar v Richard Crookes and Associates Pty Limited and Others

(Jencar’s case), Mr McDevitt of counsel appeared for the first

named respondent, the applicant‘s employer, and €or Mr Barry

Murphy and Mr Jack Campbell, respectively the employer’s Regional

Manager and foreman; In matter G227186, McNamara v Lelqhton

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 G228/86.

Siddons v Kern Konstructions Pty Limited and Others (Siddons‘

case), Mr Ashburner of counsel appeared for the first respondent manager and foreman.

employer; in matter G229186, Campbell v White-Industries pty

Limited and Others (Campbell’s case), Mr McCarthy and Mr Lamprati

appeared for the first named respondent employer and Mr phi1

. . .

10.

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

hearing of the applications Mr Siddons in matter No. G228/86,

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

Association of New South Wales. Mr Callaghan then sought leave, 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
1986.

. .

11.

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

!	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
!	formal notice of discontinuance in that regard would be filed.
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.
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After hearing submissions in this regard the Court, being
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satisfied that any orders against the employer respondent in that
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case may well affect the rights of the State of Victoria and Mr
Crabb, granted such leave (see Sharkev & CO PtV Limited v Fisher
i	(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
I
afternoon of 3 July 1986 Mr Oslington had indicated that
I	overnight he applicants intended to prepare an amended

! _.

i I application in each of the four matters. At the conclusion of

the evidence on 4 July, discussion took place between Counsel and

i	the	Court	as	to	future	programming	for	the	hearing	of
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I	submissions, the parties having been made aware sometime before
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!	that owing to its commitments, the Court would not be able to
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further sit in the matter until early in August. Mr Oslington

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

the matter of principle to writing which were then handed up. He

then commenced to speak to his written submissions. At that

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

submissions during the adjournment in July if the application as filed was to be amended. Amended applications apparently had at

that stage not been completely engrossed so the Court permitted

Mr Oslington to address. Mr Oslington finished his oral

submissions shortly before 1.OOpm when the Court adjourned for

lunch. On resuming at 2.15pm Mr Oslington sought leave to file

an amended statement of claim in each of the four matters which

were accepted after it was indicated that the respective

respondents had no objection.

Paragraph 6 and 12 of	the	amended	statement	of	claim	in
Mullarkev's case reads:

"he first respondent (employer) has been accustomed to

acquire services from the applicant.

I PARTICULARS: - -

The applicant was employed by the first respondent for

approximately 12 months prior to April 1986 to perform work

as a builder's laboufer (for the first respondent during that

period. (Emphasis added).

Whilst the other statements of claim vary marginally as to length

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 Mullarkey's case and in paragraph 7 in the

I . other matters. Paragraph 12 (or 7) reads:

Further, prior to 23 April 1986, the first respondent made an

arrangement or came to an understanding with the second

respondent andfor 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

previously been subject to) that the applicants:

(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

membership any of articular t ade union,

organisation or federation;

~ -. (c)--Ehe-lrwht-,--benefit or privilege -of - -retaining-in -. - -

I employment a person without reference to that

I person's membership or non-membership of any

particular trade union, organisation or federation;

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

terminate or suspend .a person from employment

because that of person's membership or

non-membership of any particular trade union,

organisation or federation;

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14.

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,

15.

1 have been told Your Honour there is some difficulties with

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

amendment only seeks to accommodate that which Mr Uren

addressed on the last occasion.

I

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

I	before adjourning the matter to Monday, 11 August 1986.
On 11 August 1986 Mr Levine QC with Mr Rudge announced his
i	I	appearance for the applicants in each of the four matters. The
I	Court, during the forenoon, heard submissions from Mr Levine and counsel for some of the respondents in respect of the filing of
i
I	the further amendments. On resuming at 2.15pm Mr Levine stated:
!

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.

MR 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.

MR LEVINE: That is kight. Our present position is, your

Honour, that the applicants seek relief, or

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.

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

Oslington on 4 July?

M R LEVINE: That is right, your Honour.

I 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 De made on
behalf of the applicants in support of that case.
Their case rests, as it were, on the submissions
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

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

clients will be represented by an attorney, Mr

Isaksen. for the balance of these proceedings.

I

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:

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 applicants 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

reply . I reject that application in the

circumstances. Without detailing hose

circumstances at this stage it is 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 interlocutory 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 is 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

18.

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

not a service within the definition of “services” in the Act

because it has been expressly excluded from that definition (see

s . 4 ) . Thus paragraph 6 of each amended statement of claim does

not support a cause of action alleging a breach of s .45E.

Turning then to paragraph 12 (or 7 ) . First, it is extremely

unlikely that any of paragraph 12 (or 7 ) services are in fact

services within the meaning of the Act. They do not fit within

the language of the statute. In my view, the elements of the

performance of work under a contract‘of service, such as the

Initial offer to work is an integral part of the performance of

work and should not be treated separately so as to constitute a

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.

€or 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

and adopt the reasons of Pincus J in Roberts v Murlar Pty Limited

& Others at p 20 of his roneoed reasons for judgment delivered on

22 August 1986.

19.

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.

The evidence is that members of the BWIU would not work with

non-members who were performing BWIU work. This, in effect, is

the "no ticket-no start" principle which, as polnted out earlier

herein, has operated in the building industry fo many years and

is recognised not only by Unions but by most, if not all

employers in that industry. Assuming, for argument, such

arrangement exists, such arrangement would, in my view, be

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 ) .

For example, the arrangement does not affect the employer's free

selection in a class of persons to perform work. The employer

can still employ any person he wishes to. M a t 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

that the interlocutory mandatory injunction sought by each

applicant 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

I

sufficient that there merely be a serious question to be tried

but the Court needs to have a "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 directed to the question of the balance of

convenience, Suffice it to say that that evidence is such that

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I	the Court would not have found in the applicants' favour in most,
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if not all,of the matters on the point. In this regard there was
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l	evidence which is accepted that should the Court make orders as
asked then there was real possibility that industrial unrest at
various building sites would follow.
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I	Nor it is necessary that any definitive determination be made as
I
to submissions put by the respondents in Mullarkev's case and
Campbell's case that, because the building work on which the applicants in those two matters was work being performed on
behalf of the Victorian and New South Wales Governments
respectively, then the section of the Act does not apply (see Bradken's case and Sharkeg's case).
The applications by way of interlocutory interim relief were
rejected by the Court on 12 August 1986. The formal orders of

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21.

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the Court in each matter -is that he application for

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interlocutory relief set out In each application is dismissed.

Each applicant is to pay the respective respondent's costs of and

!

incidental to each respective proceeding.

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I certify that this and the f u u h

preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Evatt

Associate

Dated: danJ 3L&,y7, f9s7

Counsel for the applicants in G225/86: Mr Oslington QC and	Mr
Wheelhouse.

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

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Counsel for the 2nd respondent in G225186: Mr Tobin QC, Mr

i	Rothman and Mr Harris.
I
I
i	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.
l
I	Counsel for the applicants in G226186: Mr Oslington QC and Mr
Wheelhouse.
Counsel for the 2nd respondent in G226186: Mr Tobin QC, Mr
I	Rothman and Mr Harris.
Counsel for the 3rd respondent in G226186: Mr Callaghan.
I	Counsel for the applicants in G227/86: Mr Oslington QC and Mr
I	Wheelhouse.
I
I	Counsel for the 1st and 4th respondents in G227186: Mr Holmes.
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22.

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Counsel for the 2nd respondent in G227186: Mr Tobin QC, Mr

Rothman and Mr Harris.

Counsel for the 3rd respondent in G227186: Mr Callaghan.

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Counsel for the applicants in	G229/86:	Mr Oslington QC and Mr
Wheelhouse.

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I Counsel for the lst, 4th and 5th respondents in G229186: Mr

McCarthy and Mr Lamprati.

Counsel for the 2nd respondent in G229/86: Mr Tobin QC, Mr

Rothman and Mr Harris.

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Counsel for the 3rd respondent in G229186: Mr Callaghan.

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