Odoc Pty Ltd v Building Workers Industrial Union of Australia

[1988] FCA 555

JUDGMENT No. ...5s&Lfi&.,

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CATCHWORDS

TRADE PRACTICES - motion f o r summary dismissal of claim -

I	bulldlng Industry dlspute - decislon by Dlsputes Board that	r
i	alleged error in decislon - whether mlsleadlng or deceptive
certain conduct was in breach of an lndustrlal agreement -
l	i	conduct - whether ln trade or commerce - whether declslon
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amounted to aidlng, counselling or procurrng contravention	of
Trade Practices Act 1974 by partles actlng In rellance upon	!
the decision - whether any cause of action dlsclosed.	. I I.

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!	Trade Practices Act 1974 ss.45E, 52, 758
ODCO PTY LTD and SUILDING WORKERS' INDUSTRIAL UNION OF

AUSTRALIA, WILLIAM OLIVER, DON MCPARTLIN, VICTORIAN STATE BUILDING TRADES UNION, HUGH HARKINS, MAX BURR, STEVEN CLANCY and ALAN VOSTI (who are sued in their capaclty as

members of the Disputes Board established under the

Victorian Buildlng Industry Agreement 1987/1989)

and MARTIN BINGHAM

Melbourne
No. VG 151 of 1988	!
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Woodward J
4 October

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TRADE PRACTICES - motion for summary disrnrssal of claim - bullding industry dispute - decision by Dlsputes Board that

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certaln conduct was in breach of an industrlal agreement -

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alleged error in decision - whether misleading or deceptive F

conduct - whether ln trade	or	commerce	- whether decision	I .
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amounted to aidlng, counselling or procurlng contraventlon of L -

Trade Practrces Act 1974 by parties acting in reliance upon	I
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the decision - whether any cause of action disclosed.	! -.
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Trade Practices Act 1974 ss.45E, 52, 758
ODCO PTY LTD and BUILDING WORKERS' INDUSTRIAL UNION OF

AUSTRALIA, WILLIAM OLIVER, DON MCPARTLIN, VICTORIAN STATE

BUILDING TRADES UNION, HUGH HARKINS, MAX BURR, STEVEN

CLANCY and ALAN VOSTI (who are sued in their capacity as	I -
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members of the Disputes Board	established under the

Victorian Building Industry Agreement 1987/1989)

and MARTIN BINGHAM	! I
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No. VG 151 of 1988

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Woodward J

4 October

Melbourne

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..	IN THE FEDERAL COURT OF AUSTRALIA	)
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VICTORIA DISTRICT REGISTRY	1
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GENERAL DIVISION	1
BETWEEN:

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ODCO PTY LTD

Applicant

and

BUILDING WORKERS' INDUSTXIAL UNION OF AUST-ULIA

Fi rs t Respondent

WILLIAM OLIVER

Second Respondent

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DON McPARTLIN

Third Respondent

VICTORIAN STATE BUILDING TRADES UNION

Fourth Respondent :---

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HUGH HAXKINS

Flfth Respondenc

HAX BURR, STEVEN CLANCY and ALAN VOSTI

(who are sued in thelr capaclty as members of

the Dlsputes Board established unher the Victorian

Bulldlng Industry Agreement 1987/19891

Sixth Respondents

and MARTIN BINGHAM

Seventh Respondent

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MINUTES OF ORDER

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COURT: Woodward J	I .
DATE: 4 October 1988 PLACE: Nelbourne

THE COURT ORDERS THAT:

1.    The appllcation, so far as it relates to the sixth respondents, be dlsmlssed.

2.    The applicant pay the sixth respondents' costs.

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(NOTE: Settlement and entry of orders is dealt with by 0.36

of the Federal Court Rules).

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IN THE FEDERAL COURT OF AUSTXALIA

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VICTORIA DISTRICT REGISTRY	)	No. VG 151 of 1988
)
GENERAL DIVISION	)
BETWEEN:

ODCO PTY LTD

Applicant

and

BUILDING WORKERS' INDUSTRIAL UNION OF AUSTULIA

First Respondent

WILLIAM OLIVER

Second Respondent

DON MCPARTLIN

Thrrd Respondent

VICTORIAN STATE BUILDING TRADES UNION

Fourth Respondent i-j

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HUGH HARKINS

Flfth Respondent:

MAX BURR, STEVEN	CLANCY and ALAN VOSTI
(who are sued rn therr capacity	as members of

the Dlsputes Board established under the Vlctocran

Building Industry Agreement 1987/1989)

Slxth Respondents

and MARTIN BINGXAM

Seventh Respondent

,.	COURT: Woodward 3
DATE:  4 October 1988
PLACE: Melbourne

REASONS FOR JUDGMENT . .

This is a motion to dismiss or stay a proceedlng so

far as lt relates to the sixth respondents or, alternatlvely, ! :

to strlke out so much of the statement of claim as relates to

those respondents. Such steps are provided for by Federal

Court Rules, 0 20 r 2 and 0 11 r 16 respectlvely; in each

case the relevant ground which the respondents seek to

establlsh is that no reasonable cause of	actlon aqalnst them
has been disclosed.

The matter has recently been the sublect of a

motion for interlocutory in~unctions agarnst respondents other than the sixth respondents. Jenkinson J delivered a reserved judgment on 8 September 1988, and I have drawn upon

that judgment for the following abbreviated	statement of
background facts.

The applicant, whlch carries on business under the

name "Troubleshooters Available", has for scme years procured

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for builders and bulldinq sub-contractors (here referred to

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collectively as 'builders') the services of bulldinq workers	I -
for particular jobs or particular periods. These transactions undoubtedly involve the making of contracts between the applicant and the builder, and between the
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applicant and buildlng workers. The bulldlng workers involved are persons who have agreed wlth the applicant to grve favourable consrderatlon to the applicant's proposals of

work asslgnments. If the applicant proposes to have a

business relationshlp with a building worker of the kind

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indlcated, the applicant first lnvrtes the buildrng worker to slgn a document rn a standard form. The contents of that document are not important for present purposes.

In the normal course of business the builder and

the applicant agree on a sum of money to be paid to the
applrcant for each hour's work by each class of buildlng
worker supplied, and the buildlng worker and the applicant
then agree on a smaller sum to be paid by the applicant to

I the building worker for each hour's work.

It 1 s argued on behalf of the applicant that no

contract of employment of a buildlng worker is constituted in

the course of the busmess outlined, either wlth the

applicant or wrth the builder. The building worker, it 1 s

said, performs the work rn pursuance of contracts whlch do I

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not bring about the relationship of master and servant.

Jenkrnson J found that this argument, and the evidence on which it was based, raised several serious questions to be trred.

Each of the flrst and fourth respondent is an

organization of employees registered as such under Part VI11

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of the Conciliation and Arbrtration Act 1904. The second and

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third respondents are organisers employed by the first

respondent, and the flfth respondent	1 s an organlser employed
by the fourth respondent.	The members of both organrzatlons

are building workers. Jenkinson J held that there is a

serious questlon shown by the evidence

".	.. whether each of those five respondents
has, in concert with one	or more of the
others, engaged ln conduct whlch	hlnders the
acqulsltlon from the applicant	by builders of

the services the appllcant offers to provlde, and which is engaged in for the purpose, and would be likely to have the effect, of causing substantial loss to the applicant's business, contrary to S 45D(l)(b) of the Trade Practices Act 1974."

His Honour went on to say,

"If the bulldlng work done under the

!	arrangements I have descrlbed be done in performance of a contract of employment, the payments received by the building workers, which are the only beneflts they receive in
respect of their work, fail to satlsfy the
requirements of awards applicable to the work i
and having effect by virtue of the provisions

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of the Conclliatlon and Arbitratron Act 1904,	, ^
and fall also to satlsfy requirements of an	5 .
agreement called	the Victorian Bulldin

Industry Agreement, to which the first and9 the fourth respondents are parties. Another party to that Agreement ( 'the VIB Agreement' )

is the Master Burlders' Assoclatlon of

Victoria, of which many burlders are members.

The [five] respondents contend that the work

done at the applicant's lnstigatron is done	in performance of a contract of employment
and that consequently performance of the work involves breaches of those awards by all builders and breaches of the VBI Agreement by all builders who are members of the Master
Builders' Associatlon of Vlctoria. They
contend that the needs of bullders for
readlly available building workers for partlcular perlods and at partlcular sites can be, and presently are, satisfied by entrepreneurs who provlde the servlces which
applrcant the provides, but unde r arrangements which result in performance of the work under contracts whlch are acknowledged by all parties to be of employment and which occaslon no breach of an

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I	,'	award or of the VBI Agreement. Being of this mind, the respondents have, accordlng to one tenable view of the evidence, acted in concert to cause a withdrawal of labour at
building srtes where work is belng performed
under arrangements to which the appllcant is a party unless the builder, on demand by one
or more of the respondents or by an agent of
thelrs, ceases to permit that work to be performed at that site. There is a serious questlon to be tried whether the respondents have engaged in that conduct for the purpose
of causlng substantial loss to the
applrcant's business. It is conduct which IS likely to cause such a loss, the evidence shows. There is also a serious question to
be trred whether the conduct has induced
breaches by bullders of contracts with the applrcant and has prevented or hlndered the performance of such contracts."

It is against thls background that the distinct,
though related, alleged cause of actlon against the sixth

respondents is said to arise. The passages in the amended

application and statement of claim which relate o the slxth

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respondents are as follows:

AMENDED APPLICATION

3 . Injunctions to restrain the first to

seventh respondents, and each of them, whether by themselves thelr servants or agents, from:-

(a) aidlng, abetting, counselling or
procurrng;

(b)	lnduclng or attempting to rnduce, whether by threat, promises or otherwlse;
(c) being	in	any way directly or

indlrectly, knowingly concerned in

or a party to;

(d) conspiring wlth others to effect;

the making of any arrangement or the

arrlving at any understandlng, between

any buildlng contractor or any other

person who has been accustomed to acquire

labour agency services from the Applicant

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and any of the said respondents or any other organrsatron of employees or officer of such organisatron or person acting for or on behalf of such organ1satlon:-

(i) not to acquire or not to contlnue to

acqulre labour	agency services from
the Applicant;	or

(ii)not to acqulre or not to continue to

acqulre labour agency servlces from

the Applicant except sublect to the !

condltion that workers provided by way of such services a r e not pard remuneratlon calculated by reference

to hours worked and hourly rates.

5.    A declaration that workers provided by

the Appllcant through its labour agency
service to bullding contractors for work

on bulldlng sltes are independent

contractors and not employees.

6 .    In~unctlons to restraln the first to srxth and seventh Respondents, and each of them, whether by themselves their servants or agents, from engaging In conduct In trade or commerce that is misleading or deceptlve by:-

(a) publishlng or distributlng the
declsion of the Disputes Board under

the	Vlctorla	Bulldlng Industry
Agreement as to	the	Dispute

regarding Alleged Cash-in-Band

Payments and Pyramld Sub-Contracting at 82 John Street Brunswick made on 3rd Hay 1988 ("the decision");

(b) publishlng or drstrlbutlng the

decislon by uslng any postal,

telegraphic or telephonic service or by way of any radro or televisron broadcast; _ .

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(c) otherwise communicatlng the

substance of the decision or the	8 . .
findrngs of the Board therein;

to any person worklng ln the building

industry rn the State of Vrctorla.

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1. AXENDED STATEMENT OF CLAIM

   60.  On the same day as the statements

   referred to rn paragraph 5 4 were made, but after the rnakrng of those statements, rt was arranged by the second respondent, actlng on behalf of the frrst respondent and J.P. Cordukes Pty. Llmlted that the drspute as to the use on the Brunswick

srte of burldrng workers supplled through

the agency of the applrcant would be

referred to the Drsputes Board

established under the Victorian Bullding Industry Agreement 1987-1989 ("the industry agreement").

61.   Were it not for the arrangement referred

to in paragraph 60 the frrst and second respondents would have taken the actron referred to rn paragraphs 54(b) and ( c ) and 55 and would have procured members of the first respondent workrng on other sites where J.?. Cordukes ?ty. Limlted was conducting building works to stop

work o r to ban the carryrng out of I

particular work at such srtes untll J.P.	! ..
Cordukes Pty. Llmlted ceased to acqurre	!

the services of building workers through

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the agency of the	applicant at the
Brunswick srte.

6 2 .   The said Disputes Board consrdered the dispute referred to It on 29th April

1988, when it was constituted by the

sixth respondents.

63.  On 3rd May 1988 the sixth respondents

actrng as the sard Dlsputes Board

published their decisron ("the sald decision") rn relation to the sard dispute, the substance of whrch was that

workers supplred through the applrant's

labour agency to work at the Brunswlck
site:-

(a)	were engaged by J.P. Cordukes Pty. Llrnlted to carry out work at the site;
(b)	to all lntents and purposes were employees of J.P. Cordukes Pty. Lrmited on the slte;
(c)	as a result of (a) and (b) were

working on the site for J.P.

Cordukes Pty. Lrmited in breach of	i
the industry agreement.

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PARTICULARS

The decislon was In wrlting, dated 3rd May 1988 and entitled "Declsion of Dlsputes Board - Dlspute re Alleged Cash-ln-Hand Payments and Pyramld Sub-contracting 8 2 John Street Brunswick Project." A copy of the Decision 1s in the possession o f the Solicrtors for the

appllcant at whose offrce	rt may be
inspected-by appointment.

64.   The sald declsion was published in trade or commerce by the slxth respondents to the flrst and J.P. Cordukes Pty Limrteds and to other persons engaged in the building industry ln the State of Victoria.

65. The declsron and the contents of the

declslon were false and mlsleading in that workers supplled by the applrcant were lndependent contractors and not

employees of J.P. Cordukes Pty. Limited.

66.  By reason of the matters aforesaid the slxth respondents, in trade or commerce, engaged I n conduct that was misleading or

deceptive or likely to mislead or

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deceive. I

67.  Unless restrained by thls Honourable Court the slxth Respondents propose to

publish the said decislon or the

substance of rt:-

(a) in trade or commerce to builders, trade unlons, industry associations and others conducting business I n the buildlng industry of the State of Victoria, and

(b)	by way of postal, telegraphic or
telephone servlce to other trade
unions, builders and thelr industry
associatlons and to other persons. i

In the course of argurng this motlon, counsel for

the applicant sought leave to amend hls statement of c1a.m
further by deleting the word 'false' in paragraph 65 and
substituting the word 'deceptive'. Be also sought to add a
fresh paragraph, as follows:

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"78A. Further or alternatively the maklng of the sald arrangement and the arrivxng at the said understandlng on the part of J.P. Cordukes Pty. Lrmlted was aided, counselled, procured, or induced by the sixth respondents by publlshlng and communlcating to J.P. Cordukes Pty. Limited, the flrst respondent and the fourth respondent the said decrslon or

I the substance of it."

The reference in this paragraph to "the said

arrangement or understanding" relates to	allegations in
paragraphs 14-18 to the general effect that:

(a) J.P. Cordukes Pty Ltd ('Cordukes') had used

the applicant's services slnce 1985,

(b) the flKSt and fourth respondents threatened Cordukes that unless it ceased to use the applicant's services there would be lndustrlal trouble and strlkes

or limitatlons of work at all its buildlng sltes, and

(c) as a result of these threats, Cordukes reached

an arrangement or understanding with the flrst to fifth

respondents that It would not	use the applicant's
services.

Such allegations, if established, could constitute a

contravention of S 45E of the Trade	Practices Act 1974 ('the
Act' ) .

The sixth respondents became involved rn the

sequence of events which have glven rise to the actlon only because they constitute the Dlsputes Board which 1 s provided

for by the Victorian Building Industry Agreement.

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The relevant provisrons of that	agreement,	f o r	, '
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present purposes, are as follows:	i
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ATTACHMENT L

DISPUTES SETTLEMENT PROCEDURE

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2 . 4 Fundamental Breach

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2.4.1. Where an employer is In fundamental breach of h r s . contract of employment I ,

the employees affected by that breach

may decline to work as directed in the	i
area affected by the breach, and be pard for the perlod during whlch they declined to work.

2 . 4 . 2 . . . . .

2 . 4 . 3 . Where the union representatrve and/or

officral of the unron clam that there has been a fundamental breach of the

contract of employment, they shall dlscuss the matter with the employer

concerned, and both parties hall

attempt to reach agreement as quickly as possible. Should these drscussions fail to settle the dispute, the union

representative and/or officrallnvolved I

shall notliy therr State	Secretary, and
the employer involved	shall notrfy the

appropriate employer association ofthe drspute. A conference shall then be convened as soon as possrble to resolve

the dispute. Should this procedure

fail to resolve the	dispute, the matter
shall be referred to the	Disputes Board

for resolution. The responslbrlity of

notifying the dispute to the Drsputes

Board shall Ire equally on the employer

and the unron.

3 .    DISPUTES BOARD

3.1	There shall be a Disputes Board whrch shall meet as required to settle a dispute arrsrng out of an Award or Agreement, but whrch shall not have power to hear disputes concerning an extension or variatron of provisions of the Awards or Agreements.
3 . 2	The Disputes Board shall comprise 3
persons of whom one shall be an
independent chairman jointly nominated

by the VTHC and the MBAV; one shall be a full time offrcer of the MBAV; and one shall be a full tlme zfflcer of the

VTHC .

3 . 3	....
3 . 4	The Disputes Board shall have the power to determine whether an employer has committed a fundamental breach of the
contract of employment, and the
entitlements to payment where employees

l	have declined to work as dlrected because of such a breach.
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Declslons of the Disputes Board shall

be by a malority, but where the 9

employer and union representatlves are	I
divided, the Chalrman shall have the	!:

power to determine the matter.

i ATTACHMENT K

ALL-IN PAYMENT PROHIBITED

It is agreed that the all-ln method of payment to employees is lllegal.

1.1	All-In payments means any system of payment that is hourly, weekly or daily whlch is either in lieu of payment for overtime, or in lieu of one or more of the various award conditions such as, annual leave, publlc holiday payments, inclement weather, etc.	! -h
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1.2	Provided the 'All-In' payments do not include casual engagement on terms

prescribed by the appropriate Award or
Agreement.
1.3	An employer who engages a worker on
all-ln method of payment breaches this Agreement. Any sub-contractor found to
be paying all-in payments hall be
dismrssed from the srte immedlately. The work in question shall be completed as declded by the principal contractor.
1.4	If an employer has been paylng a worker

I	an all-In rate the employer shall be
required to pay to that worker the
dlfference (if any) between the worker's actual earnings and what the worker would have earned had the worker been pald
award rates and condltions durlng the
worker's perrod of employment, and meet
all other statutory requlrements.

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1.6 Any worker acceptrng an all-ln method of

payment is ln breach of thls Agreement and that worker shall be reported to the

appropriate unlon for consideratlon of

any action which may be considered

necessary having regard to that union's	!
policy. Such action may include removal from the site.

ATTACHMENT E

AGREEMENT FOR SUBSTANTIAL REDUCTION

IN LOST TIME ("HOMERS" AGREEMENT)

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7 .    EMPLOYMENT PRACTICES

The parties agree that the employment

practrces deflned below are not acceptable in

the commercial and industrial building industry and all reasonable steps shall be taken to prevent such practlces.

"All-In Payments" are defined, for the

purpose of this Agreement, as payments

made at a flxed rate whlch are made in	i
lieu of any of the prescribed award payments o r condltrons Including all o r
any of the following:

overtrme, annual leave, public holiday

payments,	rnclement	weather ,
superannuatlon.

"Pyramid Sub-contracting" is defined for

the purpose of thls Agreement, as the

practlce of a sub-contractor, to whom a labour-only contract 1 s orlgrnally

awarded, of subletting that contract, or

part thereof, to another sub-contractor.

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The unions agree to a 40 hour ( 2 worklng days) perrod to allow the employer to present relevant documents to the unlon. Whlle necessary steps are being taken to

establish thls, the union agree that all

members are to remarn on site and perform

normal work.

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If the dlspute 1 s not resolved in

accordance wlth the above, the matter

shall be determined	by the Dlsputes
Board.	Lost time shall not be paid

unless awarded by the Disputes Soard.

The declsion referred to in paragraph 63 of the

I statement of claim was in the followrng terms:

DECISION OF DISPUTES BOARD

DISPUTE RE ALLEGED CASH-IN-HAND PAYMENTS

AND PYRAMID SUB-CONTRACTING

82 JOHN ST BRUNSWICK PROJECT

HELD AT VTHC ON 29 APRIL 1988

This dispute concerns allegations by the

unions covering the work of certaln persons who are members of the unions rnvolved that they are being pald all-in payments contrary to the provlsions of the Victorian Buildlng Industry Agreement 1987/1989 and the relevant

awards. There is also to a much lesser degree an allegation about pyramid sub-contracting: but the prlmary rssue is the oblection to the method of payment to the workers concerned.

The situation that exlsts as explained to the Board is that the Company, i.e. the principal contractor, for reasons of expedlency because

of a pressing workload required by	the client,
obtained labour from an agency.	The figure

was put as belng about forty men comprising a

i	mixture of trades.
The workers so engaged by the company are carryrng out work as drrected by the company and whilst so worklng they become an Integral part of the company workforce. However while the workers concerned are subject to the control and dlrectlon of company site management on a day-to-day basls, they are not
individually pald by the company nor are there
any employment records malntained by the
company of these workers.
It appears that the company furnishes the agency with a statement of the hours actually worked and makes a block payment to the agency which evrdently distributes those moneys
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amongst the workers based on hours worked and

at a fixed hourly rate which is made ln lleu

of the prescribed award payments and

condltlons, lncludlng all or any of the followlng: overtime, annual leave, publlc hollday payments, rnclement weather, superannuation.

Before settrng out its conclusions and

declsion the Board makes it clear that lts charter is to settle drsputes arlslng from

issues brought to it by parties who are l .

covered by the Vrctorlan Bulldlng	Industry
Agreement1987/1989 and in	accordance with the

terms and provisions of the aforesaid

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Agreement. Consequently the Board must make its determinatlon wrthin the parameters of and

under the umbrella of that Agreement.	: :
In this matter the Board notes that In Clause
Agreement r t is stated that all-ln payments	7 - Employment Practlces - at page 36 of the
are not acceptable in the commercial and rndustrlal bulldrng industry. The Board also notes that no contractual relatlonshlp exists

between the workers concerned and the i

prlnclpal contractor. However the	company has
engaged these workers, and whilst on the lob an employer/employee relationship has been established to all intents and purposes.	r

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Obviously there is a dispute between the unrons and the princrpal contractor about

employment practices, and in the event that r t

cannot be resolved In accordance with the procedures outlined the Agreement makes it clear that 'the matter shall be determined by the Disputes Board'.

Havlng heard the parties the Board finds that

or confirm to this Board that certain persons	the principal contractor is unable to assure
engaged by the company as buildlng and
constructlon workers on this pro~ect are berng
accorded the relevant conditions of employment
of the award to which their particular unlon
is a party.
The Board is satisfied that the current method
of remuneration to those workers can only be
described as all-in payinents as deflned by the i
Victorian Building Industry Agreement 1987/1989 and which are prohibrted by the said Agreement.
Accordingly r t 1 s the decrsion of this Board that the principal contractor is in fundamental breach of Attachment K - All-ln

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Payment Prohrblted - of the Agreement and it	is directed to take appropriate corrective
actron as requlred by the Agreement withln forty-eight (48) hours effective from Wednesday 4 May 1988. 1 - I
As part of this decision the attentron of the
unlons lnvolved ln thls dlspute LS brought to
Clause 1.6 of the aforesaid Attachment K whrch
reads :

'Any worker accepting an all-in method of payment is In breach of thrs Agreement and that worker

shall be reported the to

appropriate union for consideratlon

of any actlon which may be

consrdered necessary havlng regard

to that unron's pollcy. Such

actron may include removal from the

site.'

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I note in passing that this decislon of the I

DlSputeS Board appears to contradlct itself	rn that it says,	l :
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! "The Board also notes that no contractual relationship exists between the workers

concerned and the principal contractor.

However the company has engaged these

workers, and whrlst on the job an

employer/employee relatronship has been

establrshed to all intents and purposes."

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These two sentences srt awkwardly together; presumably in - i,

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the first sentence the Board was referring to the absence of	l.
any formal contract of employment.

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Counsel for the srxth respondents made submisslons

which, in summary form, amounted	to	following:	he	i:
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1.	The slxth respondents are not a corporatlon.	I'
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2.	It IS not alleged against the sixth respondents	I/

that any conduct of theirs	thus	far has involved	i,
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the use of postal, telegraphic or telephone	i
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facilities (see S 6(3) of Ac the . t i

3 . The respondents completed thelr function when they . . I

issued thelr decision on 2 9 April 1988. That

declsion has been widely clrculated by others. It

is fanciful to suggest that the slxth respondents

propose in future to publish the decision by postal, telegraphic or telephone facillties (see paragraph 67 of the statement of claim).

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Since the sixth respondents are not incorporated, I .

unless the applicant establlshes the .use or

threatened use of postal, telegraphic or telephone facilitles to mislead or decerve, S 5 2 of the Act has no appllcation.

4 . The publlshing of the decision of the sixth

respondents dld	not constitute conduct in trade or
commerce (see paragraph 6 4 of the	statement of
claim).

!

5.    The conduct of the sixth respondents in publishlng

I	their decision was not mlsleading or deceptive
within the meaning of S 5 2 of the Act (see
paragraph 65 of the statement of clalm, as sought to be amended).

6 . The decision complained of merely constituted

statements by	the	sixth	respondents	of their
opinlons on certain	facts	and	law and	thoss

opinions were honestly held.

In my view there 1 s substance In all these

arguments. I shall deal with them in turn.

. . t -:

1.    The appllcant concedes this polnt.

2 . This is clear on the face of the pleadings.

Publlcatlon of the declslon by using postal, telegraghic or telephonic facilities 1 s alleged

against other respondents but not against the sixth

respondents. Counsel did not seek to amend the

statement of claim on this point, and the material
placed before the Court by the sixth respondents
clearly states that they were not responsible for

any such publicatlon. This material 1 s not

contradicted.

3 . There is no suggestion in any of the material

t

before the Court that the slxth respondents have any intention of further publishing their decision.	i.
!
There is no reason why they should do so.	In my

vlew this is transparently a bald allegation, without substance, deslgned only to provide a basrs for this Court's lurisdiction.

4 .    The applicant alleges that the publication of the

decision is conduct rn trade or commerce because,

in effect, the building industry is involved in

i -

trade or commerce, the Disputes Tribunal is an integral part of the industry, and the declsion was

given in that industry. In my vlew thls submissron

mistakes the meanlng of the word 'in'. What is required to satlsfy S 52 of the Act is not merely

conduct In the setting or context of trade and

4.,

commerce but conduct in the furtherance of such	I	.
i

trade	or	commerce.	The	conduct	must	itself	i
..
I

; . . - 18 -

' \

demonstrate, or at least suggest, some commercial

or tradlng purpose on the part of the person

engaging in it. It must be capable of being
described as tradlng or commercial conduct.

I cannot concelve of any declslon of an independentdrsputes tribunal, honestly reached, as being conduct "in trade or commerce" wlthrn the rneanrng of S 52. There 1s no suggestlon in the

present case that the decision was dishonest;	it
is merely alleged to be wrong In law.

i

I can flnd no authority to assist on thls point. Cases such as O'Brien v Smologonov (1983) ATPB 40-418, and others there cited, are authorlty for the proposition that "trade or commerce" must be broadly interpreted. But none of these cases

I .;

involved conduct even remotely slmilar to that upon	...
which the present claim is based.	In vlew of the

a -

conclusion I have reached about that claim, it is

. .

not surprislng that no srmrlar claim has found its

way into the law reports.

5 and 6. The applicant alleges that the decislon of the

sixth respondents purported to declare rights and
obligations, and mrsled the bullder	concerned into

, _ I

ceasing a practice it had every rlght to pursue.

It 1s true that an innocent mls-statement can

constitute misleading or deceptlve conduct withrn the meaning of the Act. But where that statement

15, on its face, a ruling on	questions of fact and
law by a body lawfully established for	that

i

purpose, and that ruling is honestly and reasonably

made, then in my view It cannot mlslead or decelve

anyone. It LS clearly the expression of oplnion of the persons constituting the tribunal and will be

I

seen as such by all who read it, even though the word 'oplnion' 1s not used and words such as

'conclusion', 'finds', 'is satlsfied' and

ldecision' are used.

In my view, ~f an opinion, whether legal, expert or of some other description, 1s honestly given, 1 s based on reasonable grounds, and 1s seen to be no more than an opinion - either because r t is so stated o r because it is obviously so in all the ciccumstances - that opinron cannot found an action for rnisleadlng o r deceptive conduct. See

Plant v Duralla Pty Ltd (1983) ATPR 4 0 - 4 3 2 .

In the present case, Jenklnson J has already expressed hls opinion that, on the evidence now

available,	most of the work wlll be held to have	". .. It seems to me not unlikely that
been done under contracts of employment i
by the builder".

The findlng of mixed fact and law by the sixth respondents was to similar effect, so it can hardly be said not to have been based on reasonable

I

grounds, even if, in the final	analysis, it should
be held to have been wrong. And	a decision of a
dlsputes tribunal on questlons of fact or law	is,

by its very nature, an	expression of the	tribunal's
opinlon.

What I have sald about paragraphs 1,2 and 3 , 4 , and

5 and 6 above, 1 s sufficient to dispose of this action

against the sixth respondents, as so far pleaded, three times

over. The cumulative effect of the oblections to the

applicant's case is overwhelmlng.

This leaves for disposal only the proposed

paragraph 78A, alleging, In effect, that the respondents

aided, counselled, procured or induced the threatened breach

of S 45E of the Act by the other respondents. The applrcant	I
I I <
draws attention to the fact that, in the last paragraph of	I .

its decision, the Disputes Board reminded the parties of

certain enforcement procedures provided for by the industrial

agreement.

I '

In my opinion, it cannot reasonably be argued that

a lawfully constituted trlbunal whrch rules, on reasonable

grounds, that certain conduct is contrary to law, thus

justifying counter-measures, thereby aids, abets, procures oc

induces those counter-measures, withln the meaning of S 158

of the Act. Nor does	it do so by rernlndlng the partles of
the terms of the agreement under	which it was established.

The purpose of s.75B is to extend the civll

liability of corporations to persons who have participated in

proscribed conduct, as princlpals	in the second	degree, with
those corporations.

As the High Court polnted out in Yorke v Lucas

(1985) 158 CLR 661 at 667-70 and 673, the section, whlle

deallng with civll liability, makes use of an existing

concept drawn from the crlmlnal law, and the proper

construction of the sectlon requires that a party to a

contravention be an lntentlonal partlcipant.

It cannot be argued, in my view, that an

Independent, rmpartlal decision such as that of the slxth

respondents, in effect holdlng a partlcular course of conduct i

to be in breach of an agreement, makes the tribunal concerned
a party to the acts of other persons acting In rellance on
that decision if a court of law ultimately finds there has
been no breach. The trlbunal cannot be said to have been a

participant rn the conduct in any sense - let alone an

Intentional partrcrpant. It cannot be said to have been

"involved" in the alleged contraventron of the Act by those

parties, whlch is what S 758 is dlrected towards. The

decision of the trrbunal is a discrete act and carrles with

it no suggestion of particlpation or involvement in the actions of others, even if they act in reliance on the decrslon.

In my consideratlon of thls matter I have borne in mind all that was said by Dixon J in Dey v Victorian Railways

Commissioners (1949) 78 CLR 62 at 91-2. I believe that this

case 1 s "very clear indeed" and one in whlch the Court should

"stop the abuse of its process when lt is employed for

groundless claims". As Latham CJ said in the same case, at	;
8 4 , 'l. .. if a court is of opinron that the plarntlff cannot
succeed there 1 s every reason for protectlng a defendant from
vexation by	the continuance of proceedings which must be

useless and futile". In my clear view thls 1 s such a case.

In reaching my decision to put	an end to this claim	C '
I ,

at thls stage, I am reinforced by the fact that, in my view, the applicant loses nothlng (other than costs) by havrng Its claims against the sixth respondents dismissed. When asked

why they were being sued, counsel for the appllcant said that

it was so that they would be bound by the declaration sought

in paragraph 5 of the amended application. That declaration is, in effect, a reversal of the finding of mixed fact and law which the slxth respondents reached in thelr declsion.

L

. /

It is unthinkable that, once the Federal Court has

ruled on this issue in the proceedings against the other

differently constituted) would fly In the face of that respondents, the sixth respondents (or another Dlsputes Board	ruling. In my view no useful purpose 1 s achieved by having
the sixth respondents as partles to these proceedlngs. There
is no suggestion that damages are sought agarnst them.
The appropriate order is that the applrcation, so far as it relates to the sixth respondent, be dismissed with costs.

. I certlfy that the twenty-two

( 2 2 ) precedlng pages are a

true and accurate copy of the Reasons for Judgment herein of

The Hon Mr Justice Woodward

F -

&-

Assoclate

Dated:	4 October 1988
Counsel for the Appllcant:	Mr P. Costello

Solicltors for the Appllcant: O'Haire & O'Halre

Counsel f o r the flrst, second and third respondents:

Mr J.A. Riordan

Solicitors for the flrst, second and third respondents:

Ryan Carlisle Needham Thomas

Counsel for the fourth and fifth respondents:

Mr A.G. Wren QC & Mr J.A. Rlordan

Solicitors for the fourth and fifth respondents:

Maurice Blackburn & Co.

Counsel for the sixth respondent:  MC R.P. Dalton QC & i

Mr P.J. Harrls I .

Solicitors for the sixth respondent: John X. Smith t

Date of hearing:  15 September 1988