Pioneer Concrete (Australia) Pty Ltd v Marra, Joe

[1981] FCA 265

IN THE FEDERAL COURT CF AUST?&LIA

)

VICTOEIA DISTRICT REGISTRY	) VG No. 172 of 1981
1
GZNERAL, DIVISION	)

In the matter of The Trade	-	Practices
Act 1974.

Between: PIONEER CONCRETE (AUSTRALIA)

PTY. LTD.

(Applicants)

And: JOE MARRA & ORS. - -

(Respondents)

- Coram: Smithers J.

14 October	19el
Melbourne

REASONS FOR JUDGXEMT

In this case I feel satlsfied that the case for the

applicant hzs been established. It rlepends on the followmg

line of reasoning. Whar: the applrcants have CO establlsh is that

the respondents !lave engaged in conduct of a particular k m d and

it has to be conduct that hindered the acquisitlon of goods by

the potential customers of the applicant (Ploneer) from Ploneer. See Section 45i)(1) of the Trade Practices Act 1974 (the Act).

2 .

Broadly the situation seems to be that there is a

dispute between the Cartage Contractors Association (C.C.A.) with the respondents as owner/drivers and to require them, if

and Pioneer and between the former owner/drivers'of Pioneer with

they desired continued engagement, to xcept engagement as

employees. The respondents and the C.C.A., being unwillmg to agree

to this change of terms of engagement, refused the offer that

I the respondents be employees and In due course the respondent

ceased to have any relationship with Pioneer because Pioneer

determined that relationship.

The C.C.A. and the respondent2 dld know that the

32ilderc l e ! x ~ z e r Fcdsration (2.Z.f. ) hsd E pGlicy tkt si12

members of the B.L.F. would never handle goods which had ?asses

a picket hne. C.C.A. had had some doubt as to whether they

themselves, that is the C.C.A., would be regarded by the B.L.F.

as an organization whose picket lines would be regarded as being

within this policy. That was a matter which apparently Mr. Davld

had resolved satisfactorily to the C.C.A. ic some conversation

with the secretary of the B.L.F. who led him to believe

that a picket line for the purposes of this policy of the R.L.F.,

although the C.C.A. was an organization of people who being

owner/drivers were r!ot technically employees.

In those circumstances it would seem that the policy

vas adopted by the C.C.A. and implemented by the respondents that,

with respect to various customers of Pioneer, a picket line

would be set up and that the operations of the plcket line would

involve those in the picket explaining to drivers of Pioneer trucks,

carrying concrete on its way to customers, having a conversation

with the drivers of those trucks and indicating to them that it was

their desire that the concrete should not be delivered to the

customer. They would explain to the drivers that they were a picket

line and were fighting for thelr lobs, and on the whole, would

carry their picketing no further than that.

It seems to me that if in response to such a

communication from somebody in the picket line the driver of the truck refrained from going to the premises of the customer wlth

the load there would have been an interference with supply.

It seems to me that there would also, just as clearly, have been

an interference with the acquisicion by the customer of the

concrete, the subject of that particular load. But by and large

that did not happen. By and large the drivers of the trucks

went on to the premises of the customers, were there willing

to deliver the concrete to the customers, but the customer was

unable to take delivery because his servants, and the only servants

available to him for that purpose, were members of the B.L.F.,

who, In accordance with the policy mentioned, would sinply noc

handle the concrete at all	- and so the customer was deprived
of it.

If one looks, in that scenario, for conduct that

hindered the acquisition of the goods rather than the supply,

and if one concentrates one’s attentlon on the physical act

4 .

or acts relative to the giving of delivery and the receiving

of the goods, the giving of delivery to and the receiving of the

goods by the customer, I find difficulty in seeing that the conduct

of the respondents, so described was conduct of the kind referred

to in the section, namely conduct thar. hlndered the acquisltivn

of the goods by the customer.

The B.L.F., were not, it seems to me, actlng in

concert with the C.C.A. The B.L.F. in taking the action that

it took to3k it by reason of its own policy, apparently a fairly

firm policy, that its members do not handle goods which have

passed a picket line. The fact that the respondents knew that

the 9.L.F . members would probably act in accordance with that

policy does not seem to me to make the B.L.F. action action in

concert with the action of the respondents. Therefore, if hindering

the acquisition of goods by the customers from the Pioneer Company

referred only to those physical acts in the performance of contracts

between the customers and Pioneer, I would have thought that the

interference with acquisition was brought about by conduct of

the B.L.F.

Sut it is my opinion that the provisions of section

45D are wider than this. If one refers to the definition of

,I acquixe" in section 4 , sub-section 1 of the Plct and to what is

an expansion of that definition in section 4C, sub-section (b)

of the Act, it seems to me that when one talks about hindermg

che acquisition of goods by customers from entrepreneurs, what

is being talked about is not only the perfomance of contracts

5.

which have been entered into, but extends to the entering into of

contracts.

If the entering into of contracts is hindered or

prevented and the contracts which are so hindered and prevented

are contracts which would relate to the acquiring by the custon?ers

of goods from, in this instance, Pioneer, then if one finds-

conduct which has prevented those contracts being entered into,

that is conduct which hinders and prevents the acquisition of

goods. The plain fact.is that at the end of the month or

thereabouts durlng which all this conduct has been going on,

the evidence does disclose that there are potential customers

who desired to acquire concrete from Pioneer but who dld not say

so, who did not therefore acquire concrete which they would

otherwise in the ordinary course of events have acquired through

placing orders in the ordinary course of business.

The question is whether it was conduct of the respondents

which caused the situation which caused potential customers to

refrain from ordering the goods and acquiring them in that sense.

In connection with this problem it seems to me the situation 1s

. different from when one is considering the conduct relative to

the actual physical acts whlch were concernee in the delivery a d

receipt of the goods pursuant to contracts which had already been

made.

In this case other facts become relevant, namely that

by reason of what occurred it was obvious to customers that if they

ordered concrete they would not receive it. Their failure to

order was therefore a direct consequence of their realisatlon of

that undoubted fact. What was the cause of that undoubted fact?

Here it is not a question of findmg someone who acted in concert;

here the question seems to be one purely of causation.

When one is looking to the cause of the inability of

.	anybody, and these customers in particular, to acquire
concrete from Pioneer, it does not matter whether the B.L.F. were
in concert with the C.C.A. or the respondents or not. The attit-
ude of the B.L.F. was just one 02 the facts of life, a very

important element in the total commercial circumstances which

appertained to contracts for the acquisition of coccrete. I

think the situation is that if one is looking for the cause of

the ix+il.ity of anybciiy, end these customers to acqulre concrei-c, and to refrain from orderlng it, one starts with the creatlon

by the C.C.A. of the picket line and, of course, the respondent’s

co-operation in the operation of the picket line.

That was an act which was performed in the knowledge

as to what this consequence would be. I do not think that that

particular fact 1s vital. It is not that they knew it would occur

but that it did occur and looked at objectively it was the

natural and probable consequence of the setting up of the picket

oine. Everything else flowed from that. Accordingly, once one

takes the view that thls section should be read in the broader

way to which I have referred then it does not matter that the

actual acquisition of the goods which were in fact proferred for

delivery were not acquired because it was the B.L.F. action Rot

7 .

a

D .$

t o t a k e d e l i v e r y o f them.

What is impor tan t i s t h a t t h a t a c t i o n was t h e n a t u r a l

and probable consequence of t h e a c t i o n o f t h e C.C.A. and t h e

respondents and led t o t h e w h o l e s i t u a t i o n w h i c h c r e a t e d i n t h i s

pa r t i cu la r commerc ia l area to be desc r ibed as one i n wh ich it was

imposs ib l e t o do bus iness w i th P ionee r by way of order lng goods

because such a c o n t r a c t c o u l d n o t b e c a r r i e d o u t . The consequence

of t h a t was t h a t v a r i o u s c u s t o m e r s d i d n o t o r d e r goods, t h e r e f o r e

d id no t acqu i r e goods t h a t they would otherwise have acquired, and

t h a t was t h e d i r e c t r e s u l t of t h e p i c k e t l i n e , d i rect , n o t immediate

b u t d i rec t neve r the l e s s , ope ra t ing on t he va r ious e l emen t s of

t h e commercial s i t u a t i o n w h i c h e x l s t e d .

Accordingly it seems t o me tha t t he s i t ua t i .Cn does

arise i n which an in junc t ion should go. I should mention t h e

c o n t e n t i o n t h a t , by reason of t he fo rm of t h e c o n t r a c t u n d e r

which the respondents had prev ious ly been owner-dr lvers , there

was a r e l a t i o n s h l p o f master and s e rvan t and no t o f p r inc ipa l

and independent contractor between Pioneer and the respondents .

T h a t p o s s i b i l l t y was f l o a t e d i n t h i s c a s e , b u t it i s now

conceded, and I have no doubt r igh t ly conceded , tha t the sugges t ion

t h a t t h e respondents were employees when t h e y were owner-drivers

unde r t he i r p rev ious con t r acc canno t be suppor t ed .

The evidence as t o t h e a t t i t u d e of customers and

as t o t h e d e c i s i o n of customers not o t o r d e r g o o d s a r i s i n g

o u t o f t h e d i f f i c u l t l e s w h i c h f a c e d c u s t o m e r s i n r e l a t i o n t o

d e l i v e r y i s s u p p o r t e d i n some r e s p e c t s by evidence, some of which

i s hearsay . Had there been any real quedt ion as t o t h e v a l i d i t y

".

and truthfulness of the statements which are made in the

hearsay evidence It would have been necessary to have given

the opportunity to have that evidence made direct rather

than by remain in hearsay form.

Again, however, cousel for the respondents, taking

. a very sensible view of the matter, has not objected to the

hearsay evidence. This is one of those cases where there

can be no real doubt as to the validity and effectiveness of

what is szid by hearsay. Accordingly I have taken into

account both the hearsay and the direct evidence of the reason

why customers failed during the month of September and no doubt

are still refraining, as to why they did refrain from ordering

concrete fron Pioneer acccrdizg :c th&: usLai custorn.

In those circumstances it seems to me that an injunctlon

should issue. Respondents will pay the costs of the proceedings

including the proceedings for interlocutory relief.

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