Petersville Sleigh Ltd v The Federated Storemen & Packers Union of Australia

CATCHWORDS

Trade practices (restrictive) - application for mterlocutory miunction to restrain secondary boycott and conduct enqaued in preventinu third person from enuauinu in overseas or interstate trade or commerce - analvsls of evidence - conduct said to he authorized by State law - discretionary conslderatlons lnclltdlnu reliance on "industrial realities".

Trade Practices Act 1974, s s . 45D. 51

Industrial Arbitration Act 1940 (N.S.W.). S. 99(b)

PETERSVILLE SLEIGH LIMITED

~ 7 . THE FEDERATED STOREMEN AND PKKERS

UNION OF AUSTRALIA and ANOR.

No. G338 of 1985

Coram: Sheppar? J.

Date : 25 November 1985

Place: Sydney

IN THE FEDERAL COURT OF AUSTRALIA

)

NEW SOTJTH WALES DISTRICT REGISTRY

)	No. G338 of 1985

)

GEIENERAL DIVISION

)

-N	B	:
PETERSVILLE SLEIGH LIMITED

Applicant

THE FEDERATED STOFEMEN AND PACKERS IJNION

OF ATJSTRALIA and FNOR.

Respondents

MINUTES OF ORDER

JTJDGE MAKING ORDER: Sheppard

DATE OF ORDER	: 21 November 1985
WHEFE MADE	: Sydney

THE COTJRT OFDERS THAT:

L T n e

First Respondent Its servants and aqents and the Second Respondent be restralned until

further Order from enuauinu

directly or indirectly

in concert with another person

persons in conduct that hlnders or prevents the acquxsitlon of mods by customers of the Applicant from the Applicant or hinders or prevents the orderinu of uoods by customer.: af t h ~

Applicant from the Applicant where such conduct is enuaued in for the purpose and would have or be likely to have the effect of causinu substantial loss or damaue to the busmess

of the Applicant.

L .

First Respondent its servants and aaents and the Second

Respondent be restrained until further Order from enuaaina

directly or indirectly In concert wlth another person or

persons in conduct enaaaed in

for the purpose

or havina or

llkely

to have

the effect

preventina or substantlallv

hinderina the Applicant from enaauina in trade or commerce between Australia and New Zealand. amonust the States of Australia, within a Territory or between a State and a Territorv.

First Respondent Its servants and aaents and the Second Respondent be restrained until further Order from imposinq, uivina effect to, or enforcina any ban on the orderina from, receipt from or delivery by. the Appllcant of uoods to

customers of the Applicant where such conduct would have or hinderina the Applicant from enaauina in trade or commerce amona the States or within a Terrltorv or between a State and

be llkely

to have the effect of preventinu or substantlallv

a Territorv.

operation

of these Orders is suspended untll 12.30 a.m.

on the 25th day of November, 1985.

matter is stood over for dlrectlons to 9.30 a.m. on 28th November. 1985.

6_5Costs reserved.

Note: Settlement and entry of orders is

dealt with in Order 36 of

the Federal Court Rules.

L .

f o n d s t l l f f s	takes place	i n a l l	States and	Territories. between
0

-takes

and. between

States

a n d T e r r i t o r i e s .

t h o s e

r e s p o n s i b l e

f o r

the ban i s

t o a dearee

ambicuous ,

that, it re fers t o " the s toremen

and

packers" ,

or the Storemem

and

Packers

Vnion

beincr

the

Insticrator

i t .

This ambicrultv was the

founda t ion f o r

qjne of

t h e

p r i n c i p a l

s u b m l s s i n n s

made

csunse l

€or the

respondents.

namelv.

that t h e r e

was no

evldence

o r no

. .

j u f f i c i e n t e v i d e n c e

even on

prlma

f a c l e basis,

that

the ban had

been imposed b-7 the f i r s t

respondent ,

that i s t~ s a v ,

the union .

m e 'iame submlssion w a s no t made	cn behalf	of	the	second
respondent , Mr. Sword.

There i s

no rssue

t k a t the

ban

i s

i n

e x l s t e n c ? .

This

i s

demcns t r a t ed

the

ev idence

o f

t e leohnne

conversa t lons ,

zhrch

took place

between

Mr.

Sword and Mr. .J. S. Shaw.

vho is the

manacrina

. d i r e c t o r

t h e

a p p l i c a n t .

The

c o n v e r s a t i o n s

wer?

'deposed

t o

i n

a f f i d a v l t

sworn

Mr.

Shaw.

was

(cross-examined.

but

s a t i s f i e d that

should

Mr.

Shaw's

sv idence

the

c o n v e r s a t l o n s as

b e i n i r

s u b s t a n t l a l l a

a c c u r a t e ,

p a r t 1 c u l a r l v

Mr.

Sword d l 6 not,

c l v e evidence .

" I t

i s x i t h

r e f e r e n c e t o

d r s p u t e

xith t h e

Da-vid Jnnes

o rm3nlsa t ion

vh ich

;as

o r r a i n a l l - ;

a mlnor

ma t t e r b1dt

72hlch has now achieved

m i o r P r o p o r t i o n s .

I have

sent,

telex ts

Mr. Spalv ins

becquse

. ..

requests that

I have received to

escalate the sctlon belna taken snd I be11eT;e that a discussion Gith senior people could lead to a settlement of the dispute.

Mr. Shaw said: I know nothina gf the dispute or

i t s backaround

and 'cannot comment

m anv wav

but I was disturbed r o

have learned i u s t before speakina to vou that bans have b?en placed

m the deliverv of products frcm

Edaell/Birds

Eve,

h~strslian

United foods and O.U.F. Indlustrles Limited at the warehouses of

various

retailers

Svdnev.

Petersville Slelah is n o t a subsidiarv of Adelaide Steam. some 49% of shares are owned h-? Tnoth

and

Companv

Limlted

and the

Inclusion

Australisn

TJnlted

Foods is

puazllna and the

inclusion of products from 0.rJ.F.

Industries

Llmiced

1 s

Sevond

comurehension.

I '

Y r . Shaw said that Mr. Sword would n o t respond to m v

rubseaue?t

explanation that the appllcant was n o t a member cf c h e

Adelaide Steam

Group. and told M r . Sword

that In anv

e-yent he

knev nothma of the hlstorv of the dlspute.

Mr. Sword explained the disoute to him. He sa1d:-

"The S.P.U. Cthat is elther the

federal lunion or

the State unlnnl has been represented in some weas of David .Jones snd the Shop Assls tmts TJnion m others and the S.P.U. have been trvina to effect complete coveraae throuuhout the David ,Jones oruanisation. I n response to dlscusslons

at lunion meetlnas some thirtv/fortv members of

the Shop Assistants IJnion have elected to i31n the S.P.TJ. and, when transferrina to the S.P.rJ. had requested that the companv cease deduckllna llnlon dues nn behalf of the Shop Assistants Vnlon. but the companv had continued with those

deductions.

' I

Vr. Sword went on to tell

F r . Shaw that the union - m d this

time it is the State union - had lodaed a "section 36 application". that is, an application under S. 36 of the Industrial Arbitr3tlon Xct with the Mew South Wales Industrial Commlsslon in order to have the demarcation dispute between the two unlons determmed. He was also told that David Jones Limlted.

had taken action in the Sapreme

Court of New South hlales.

Mr. Sword said that the dispute had been uoina on for q2ver

fhree weeks and there was a lot of emotlon.

He went on to

axplaxn what he meant bv this.

but it is unnecessar-7 to refer

the detall of his evldence in this respect. Eventuall-7. Mr. Shaw

=aid:-

"I cannot see what purpose

is served in contactina

ms as I have onlv met Mr. Walsh [who is nne of the directors of Bdelalde Steamshlp CompanvIl on

two occasions.

both sociallv.

I have met the

Director of Flnance. Mr. David Hobbs. on two or three occasions main soc1allv. m d I know no-one slse in the oraanisation . . . "

Mr. Sword said that Mr. Shah- was the nnlv one

he knew

connected wlth the Adelaide Steamship Company. Mr. Shaw sal5 he had no Idea of the wh?reabouts of Mr. Spalvlns, nnr qf Mr. Walsh, but if Mr. Sword requested it, be would do his best tq cnnvev tc the manaaement nf Davld Jones Llmitsd th? tenor nf his telephone ronversatlon.

Sword

: -

Mr. Sword said:-

"The

execu t ive

o f

the

unlon v a s

probablv

Earl ie

and

vou

won't

met

snvthinu

cut of him".

Mr. Shaw said:-

" I f I

am a b l e t3

make

u s e f u l

s o n t a c t

w l t h

David

,Jones.

xho

w l l l

represent

the

un lon

an77

rneetinu?"

Mr. Sword said:-

"Yvself and Mr.

Belan ,

xho 1 s ,arl;ff

b u t r e a l l s t l c .

The

r e p r e s e n t a t l v e frcm

D a n d .Tones should

a t

s e n i o r

l?ve l . "

The

conver sa t lon

conc lcded

xhen Mr.

Sword said:-

"I kh ink

t he re

i s l i t t l e I

can do b u t .

f o l l o w i n u

vour

r e q u e s t .

I K i l l make

e n q u l r i e s .

b u t

I n

t h e

meantime

I have

to r eco rd

w i t h you

mv concern

that

parts

the

P e t e r s v i l l e S l e i u h o r m a n i s a t i o n

have

been

d raxn

i n to

the

d l s p u t e

a n d

must

consider and	seek advice on	protection for this
oruanisation."

On 14 November there was a further telephone conversation. Mr. Shaw told Mr. Sword

that he had been partiallv successful in

a t?lephone call he had made to Eavld Jones Limited. He said that Eavid Jones Limited was awaitinu a response to 9 telex and thouuht that, Mr. Walsh mlaht be encoursued to attend a meetlnu.

Mr. Shaw also said:-

"T cannot IUnderstand whv Petersvllle Sleluh

Limited, Australian TJnlted Foods and 0.U.F. are in~mlved. Is it trlue that these companies have bans applied to their products xt 4cert3in stores

3rd warehouses?"

Mr. Sword said:

" L e t , ' 5

sav

Y J ~ U

have come problems.

Mr. Shaw said:-

"I am sure that vou understand that we have to

l o o k at our situation and seek. as a matter of

uruencv. remedies to protect ourselves.

' '

M r . Sword said that he understood and. that he would telephone "New South Wales"

to see what the position w.as .

He thanked Mr.

Shaw for hls asslstance.

9 .

The next evidence to which I should refer is a facsimile copv of a telex purportinu to be

sicrned bv Mr. Sword and to have been

sent to each branch of

the

union.

The telex was

marked.

"attention: Branch Secretarv - uruent." It said:-

"Further to mv

telex of vesterdav reaardino David

'Tones. assistance IS reqUested from all branches

3 s a priority7 matter in recrard to all Peters-ville

products includina

. . . ' l

and there then followed a llst of products. to which It i s llnnecessarv to refer. except that the list contained a areat manv items. The telex was siuned. Greu Sword, and dated 13 Novemher

1985.

Mr. Sword's first name

is G r e g o r v .

The cgpv gf the telex

c a s admitted over the obiection

counsel for the respondents.

He did not obiect on the uround that the

document was a facsimll?

copv of

the orluinal telex buz

on the uround that there ~ J J ~ S

widence to connect lt with the lunion or Mr. Swnrd.

Fv pclncipal

reasnn for admittina

the document was based upon 3 consideration

of the provisions of the Bridence Act 1914 In	relation to
buslness records.

The only evidence c3lled

on behalf nf the respondents

was

that of khelr solicitor. M r . Furnell. HP nave evidence of the

historv of the dispute between David Jones Limited, the unlnn snd

the PJew South Wales oraanization. In cross-examination, he said

th3t Mr. Sword had heen oresent in Court durincr part of the dao

snr? was there sfter the telex had been tendered. Mr. Sword left

The p r o v l s i o n s of S.

45D of

the T-csde

Practices Act

which

.are

r e l l e d

u p c n .

a r e

para.

' l ) ( b ) and

sub-sec.

(1,) of S . 45D.

Theo

ProTT1dP

f o l l c w s :-

"45P(1 )

Sub iec t

t o t h l s

s o c t i o n .

person

~'call

n o t . i n

ror .cer t wi th a second

perscn. enrlaue

conduct

that h m d e r s (or

p r e v e n t s :he

supply cf

iroods o r

s e r v i c e s bv a thlrd.

person t o .a fcurtk

person

( n o t

b e l n a

emplover

t he

f i r s t - m e n t i c n e d

o e r s o n ,

o r

the

a c c m i s i t l o n

(-roods o r

s e c v i c ~ s

bv 2 t h i r d person from a f s l x t h

p e r son

be inu

(no t

emplo-Ter

t h e

f i r s t -men t ioned pe r son) .

where -

........ ........ ........ ........ ........ ........ .

i b l

the f o u r t h wer5on

a corpora t ion

and

tke

corduct 1 s encraued

i n f o r

the purpose .

ind

~ o u l d

have cr be

l l k e l v t o have

the e f f e c t . o f

causlnrl-

f i )

s u b s t a n t i a l

l o s s

o r

damaue

t o

the

b u s i n e s s

the f o u r t h

p e r s o n

o r

c f

bodv

c o r p o r a t e

that

1 s r e l a t e d t o that

person:

o r

........ ........ ........ ........ ........ ........

(1A) Sub iec t

t o

th i s

s e c t i o n .

person

shall n o t .

concPr t

wlth another

person .

enrJqce

conduct

fa r

the

pu rpose .

and

k a % - i n u o r

l i k e l v

t a have

t h e

e f f e c t , ,

n f

oreventincr

o r

s u b s t a n t i a l l y

h l n d e r r n c r

t h i rd

pe r son

(no t

be lnu

emplove r

the

11.

first-mentioned person) from enuaulnu in trade or

coamerce-

(a) between Australia

and p l a c e s outside

Fxlstralla:

(b) amonu the States: or

f c )

within .. a -

Terrltorv, between a State and a

T?rritgrv or between tuo Territories."

LZ.

Australia.

namelv

New Zealand. amonu the States. vlthln 3

Terrikorv and betwee3 a State and 3 Territorv.

In mv opinion. there was prima facle evidence uoon vhich the applicant was sntitled t o relv to make nut a case based on each of those provlsions. In makina that statement. I leave aside the question. f o r the moment, of whether there was evldence t~ connect the respondents wlth what was a l l w e d to have been done.

The prlnclples, which should cruide me m a case of this kind,

?c? clear and I do n o t

need to discuss them.

I refer in uasslnu

tn the iudament of the F u l l Court of this Court in Epltoma P t v Llmitd v. Australasisn Mest Industr-.T Emplovees TJnion (No. 3) ( 1 9 9 4 ) 5 A A.L.R. 730, and State nf 01Ieens;and v . P.u?trsllan

Telecommunications

Commlsslnn

,1985)

5 9

4 . L . J . P .

562 ,

pa r t i cu la r ly at

563.

‘.ere

(a) The provisions of

para. 51(l)(b) of the Trade Practice? Act.

read In coniunctlon with S. 9 9 ( h ) of the Industrial Arbitratlon A c t (N.S.W.). rwdered the conduct relied upon bv the applicant lawful and not in breach of S. 45D. at least so

far ,as that conduct was encraued in in New South Males

( h l There

- m s no.

o r

no s u f f i c i e n t

evidence,

that, the first

re5Pondent had encraaed I n ano qffendlnu cmduct.

The

13.

evidence vas as cons i

s t e n t with the

conduct

be ina

t h

.at nf the

New

South

Wales o r a a n l z a t i o n

and

Mr.

Sword h a v l n a

a c t e d

independently3 of the

f?deral

union.

the ex ten t that Mr.

Sword was

encrauinu in

anv

conduc t

the klnd proscribed.

the

s e c t i o n .

he was n o t

shohn t o be a c t i n r r

i n

c n n c e r t

wlth

the

f e d e r a l

u n i o n

' c 1

The

rrrantmrr

n f

i n i u n c t i v e

c p l i e f

c i o u l d ,

i n

the

c i r cums tances ,

f l u t i l e

(d.)

Rel ie f

should

re fused

an i i s c r e t l o n a r v

urounds.

Thls

submission was based nn t h e

c l a i m e d

e x i s t e n c e

c e r t a i n

leqal

and

i n d u s t r i a l

a u e s t i c n s

a r i s i n u

cllt

*If the

Davld

,Tones' d i s p u t e . and a l s o

nn a sl.&mlsslr,n that damacres 12 the

m-ircumstances

vould

aciew-late

remedv.

I decided that

each of t hese

suhn i s s ions

shou ld

r e i e c t e d .

Flv

reasons

f o r d o i n u

so were

f o l l o w s : -

(a) Para.

5 1 , ( l ) ( b )

t h e Trade

Pr3ctices Rct,

so f a r

3 s i t 1 s

m a t e r i a l .

1 s

f o l l o w s : -

"51(1) I n determininu

whether

c o n t r a v e n t l o n

p r o n s i o n

o f

t h i s

Par t

has been

committed,

recard shal l not be had-

........ ........ ........ ........ ........ ........

: b ) i n %he (case of 2 c t s

lnr thlncrs

done

State - except as provld5d bs- the

rerrulat lnns. t o a n v a c t or t h l n u that i s ,

o r 1 s

k i n d .

s p e c l f i c a l l v

3 . u t h o r i z e d

nr approved

bo. or bv

r e u u l a t l o n s

u n d e r ,

a n

Act passed b y

th? Par l i amen t

*of that

S t a t e :

........ ........ ........ ........ ........ ......

. . -

14.

The

p r o v i s l o n

S ta te

law which was

r e l l ed upon w a s

S .

? S ( b )

the

I n d u s t r i a l

l r b i t r a t i o n

Act

{N.S.W.)

whlch

1 s as

f o l l o w s : -

"?? .

The

fn l lowinq

s t r i k e s and

no others shall be

illecr31:-

........ ........ ........ ........ ........ ........ ..

i b )

Anv strike bv

the emplovees

i n

i ndus t rv ,

t h e

c o n d l t l o n s

which are

f o r

the

t ime

belncr

whollv

o r

p a r t i a l l v recrulated

bv an

award

indus t r la l

acr reement :

Provided

tha t snv

unlon

emplovees

m a v

r ende r

acjard

whlch has b e e n

I n

o p e r a t l o n

f o r a

p e r l o d of

at least twelve

months

loncrer

bindlna

on Its members bv the v o t e of

a malori t - r of

i t s aembers

a t I s e c r e t ,

b a l l o t

t a k e n I n

accordance

.nth

t:?e

p r o v i s l s n s

f o r

hallnts

con ta ined

i n

th i s

Act

and

t h e

r e n u l a t l o n s

t h e r e u n d e r

i n

x h l c h

n o t

l e s s

than

two- th i rds

t h e members of

such unlon

take

9at-r. "

the DresPnt

case

Counsel for the respondents ilrew my attention to the Turiamenr,

of the Chief Judae of

this Court. particul3rly

at up. 528-57-9.

but on this point, the learned Chief Judae was 13 a minoritv.

If:

is the iudoments of Brennan and Deane J.J. whlch s c n t r o l what, the

sase decldes in thls respect.

16.

In my oplnlon that submissin is

also sound and should be upheld

L / .

the

Executive Committee hv letter. teleuram. telex

slmilar

mode, and members shall express their

decision thereon bv an7

such mode.

The maioritv declslon is to be the

decision of the

Federal Executive Committee.

Eecause of

the

provisions

tbese

rules

it ouuht.

particularl-7 in an mterlocutorv application of this kind. be inferred that Mr. Sword was actinu wlth the authoritv of the Executive Committee. It ouuht not to be presumed or inferred,

particularlv in the

absence of Mr. Sword from the witness box

and

n i m v applic3tion f o r an

adiournment which would

have ?nabled

him to be called. that he had properlv clothed hlmself

with power

to do what * P d l d .

Whether he dld o r nat is a matter c,ecu11arl-i

Yithin his and the federal

Iunion's knowledw.

>.S I 5 3 v , nn

evidence %as	led. nor ~ 7 a s any adiournment souuht to enable it t t a
be c2lled.

In his second conversatlon *nth

Mr. Shaw In answer to the

que5tlcn. =h0 would represent the union

at the meetlnu. Mr. Sword

said that it would be himself and Mr. Belan. Mr. Eelln 1 s the Treasurer of the New South Males Brancn of the federal union. and a deleuate to the Federal Conference. He 1 s also an executive of the ?Jew South Wales union. but the fact that he holds offices In

both oraanlzations .Ices not

affect

the f a c t that he vas ,

accordina to

M r . Sword. to represent, alonu

with Mr. Sword. the

union at the proposed conference

with Da-Jid Jones Limltecl.

Mr.

Sword made it wite clear to

M r . Shaw that he had a w r v ser1o!-Is

.. .

18.

problem.

He made no bones about the bans and sbout the

esrslation

industrial

action whlch was to be taken. To

s u a a e s t that

he was speakinu

on his ohn behalf and wlthout

anv

authoritv from the federal union

In all the clrcumstances

'cc

Yhich I have referred offends common sense.

To puc

the matter at its lowest. there is clear

prlma facle

evidence that Mr. Sword acted on behalf of the federal [union ar?d

v a s Implicated In

the imposition of

the bans whlch were in

existence and of their contlnuatlcn.

In support of his submission t h a t the urantina of 1niIlnctive rellef would be futile, counsel for the respondents refsrred to Yhat mav be described a s 1r.dustrial reallties. Ye s+ld that If the respondents were restrained others :;ould

(c)

cmtinue to

1mpose the bans.

That mav o r mav not be

the case .

but the

fact

that

lt mav be provldes no re,sson f c r n o t

restraininu cnnc'uct which 1 s pclma facle unlswful.

Th? applicant

has made out

a prlma facie case aaalnst the respondents.

The

f % c t that othecs

mav enaaue in similar Imlawful cnnduct prmcldes

no reason for refusina rellef.

f d )

The evldence establishes that

both Davld Jones Llm.-te?.

and the appllcsnt

are part of

what mav loose lv

be described 1 s

the Adelalde Steamship

Group of Companles. in that

the Adelllde

Steamshlp Companv Llmited has, either dlrectlv

or indiroctlv,

sabstantial shareholdinus in each.

However, the shareholdinus in

19.

the applicant are not a maioritv lnterest, and for that reason lt is probablv true to sav that the two companies 3re not related.

That is not a mattsr which

I have investiaated In anv depth. and

there were no submlssions

about

it.

The

fact 1 s that the two

companies, notwithstandincr the association that can be shown. are separate and distinct and conduct separate and distinct

busmesses. The

only

relevance that the

flrst of the matters

relied upon miuht have is if it could have been tied to a defence based on sub-sec. 45D(3) of the Trade Practices Act. No defence hase3 on that provision was relied upon. I n those circumstances

~t is impossible to understand how such ipdustrlal 3nd leual

problems as exlst between the federai unlon and Davld Jnr.es

Llmlted have anv relevance In

a leaal sense to The ccnduct beinm

enuacred in here, or prcvlde anv reason xhy celief ,should be

refused cn discretionary crrcunds.

So far as damacres belncr an adequate remedv are concerned. it

1 s enouah to sal;

that I am satlsfied that damzaes

are

not an

ad?quat? remedv in a case of this kind.

I certify that thls and the

/g precedlng

pages are a true copy of the reasons for

judgment herein of The Honourable

Mr Justice Sheppard.

Assoclate

[1985] FCA 677

25 Nov 1985