R. & E.P. Eccleston Pty Ltd v The Federated Storemen & Packers Union of Australia & Ors Tristar Oil Pty Ltd v The Federated Storemen & Packers Union of Australia & Ors

[1984] FCA 242

IN THE FEDERRL COURT OF AUSTRALIA	)
)

VICTORIA	DISTRICT	REGISTRY	1
)

DIVISION GENERAL 1

B E T W E E N :	R . & E.P. ECCLESTON p m .
LIMITED

Appllcant

A N D :

Respondent S

NO. VG 219 of 1984

B E T W E E N :

TRISTAR OIL PTY. LIMTEL)

Appllcant

A N D :

THE FEDERATED STORdMgN AND

PACKERS UNIOU OF AUSTRALIA,

BARRY SPARKS, FRANK BELAN,

DENNIS CLAM, ROBERT ROW,

LES. WILLETTS, MARK

WITCHARD, RON PERKINS, JOHN

HODDXR, JOHN WILLIAMS and

LES. BARAMNAt3

Respondents

16 AUGUST, 1984 KEELY J.

ORDER

1

The Court orders that :-

l.	The time prescrlbed by 0 . 4 r. 12 for servlce of the proceedings on each of the respondents, ot-her than
Messrs. Clark and Belan, be abrldged to two days and that
compllance with the requirements of 0 . 4 r. 12 be

dispensed with.

2 .	(Upon Counsel for the applicant giving the usual
undertaking) that the respondent The Federated Storemen and Packers Unlon of Australia, its servants and agents,
and the respondents Barry Sparks, Robert Kowe, Les.
Wlllet.ts, Mark Witchard, Ron Perkins, John Hodder, John
Williams and Les. Baramnah be restrained until
det-ermlnation of the appllcation or further order from
engaging in conduct, in concert with any person, that

hinders or prevents the supply of pet-roleum products

including bulk fuel by Amp01 Llmited to the applicant

where such conduct is engaged In for the purpose and

would have or be likely to have t-he effect of causing

substantlal loss or damage to the buslness of the

applicant.

3 . Costs of all parties be reserved.

4. Each party be granted liberty to apply.

IN THE FEDERAL COURT OF AUSTRALIA ) )

VICTORIA DISTRICT REGISTRY ) )

DIVFSION	GENERAL	)
No. VG 218 of 1984

B E T W E E N :	R. h E.P. ECCLESTON	PTY.
LIMITED

Applicant

A N D

Respondents

No. VG 219 of 1984

B E T W E E N : TRISTAR OIL PTY. LIMITZD

Applicant

A N D :

THE FEDERATED STOREMEN AND

PACKERS UNION OF AUSTRALIA,

BARRY SPARKS, FRANK BELAN,

DENNIS CLAM, ROBERT ROME,

LES. WILLETTS, MARK

WITCHARD, RON PERKINS, JOdN

HODDER, JOHN WILLIAMS and

LES. BARAMNAH

Respondents

16 AUGUST, 1984 KEELY J.

REASONS FOR JUDGMENT

2 .

R. h E.P. Eccles #ton Pty. Limited and Tria Itar Oil

Pty. Limited have each sought interlocutory injunctions under

S . 80 of the Trade Practices Act 1974, restraining the

respondents "until the determination of the application or

further order from engaging in conduct, in concert with any

person, that hinders or prevents the supply of petroleum

products including bulk fuel by Ampol Limited to the applicant where such conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing

substantial loss or damage to the business of the applicant".

Mr. Moshinsky appeared for the Federated Storemen

and Packers Union of Australia (the union) and there was no

appearance for any of the other espondents. It was

conceded by the applicants that Mr. Dennis Clark had not been

served with the application. Affidavits of service have been filed, deposing that eervice of each application,

endorsed with a notice of the date for the hearing of the

claim for interlocutory relief, was effected upon each of the

remaining respondents with the exception of Mr. Belan. As to

the latter, an affidavit of eervice was filed yesterday but

that fails to satisfy me that a copy of the application, endorsed, as required by 0. 4 r. 9(2) of the Federal Court

Rules, with a notice of the date for hearing of the claim for

3 .

interlocutory relief, was served upon Mr. Belan. The

applicants did not seek an ex parte order against Mr. Clark:

r*v

no consideration will be given to granting~ex parte order against Mr. Belan.

As to each of the remaining respondents, service

was effected less than five days before the date appointed

for the present hearing and accordingly did not comply with

0. 4 r. 12 of the Rules. Mr. Dowling, of Queen's Counsel,

who appeared with Mr. P. Murdoch for the two applicants,

sought an order abridging the time for service fixed by that

rule. In all the circumstances, including the matters set

out in the three affidavits filed in support of the

applications for interlocutory injunctlons, and the fact that

counsel for the union did not oppose the application and did

not apply for an adjournment of the hearing, it is

appropriate that orders be made in both matters under 0. 3 r.

3 abridging the time for service and under 0. 1 r. B

dispensing with compliance with the requirements of 0. 4 r.

12 in respect of service upon all of the respondents other

than Mr. Dennis Clark and Mr. Belan.

Mr. Moshinsky, on behalf of the union, put a

preliminary submission that the Court should stay the present

applications pending the determination of an industrial

dispute by the Australian Conciliation and Arbitration

Commismion. In support of that application he referred to

the desirability of "preventing duplicity of proceedings" (8ee judgment of Bowen C.J. in Hughem Motor Service Pty. Ltd.

4.

v Wang Computers Pty. Ltd. (1975) 35 F.L.R. 346 at 354-5).

However, on the affidavit material before the Court, it was clear that the proceedings scheduled for hearing in the

Commission, which related to a claim for a federal award,

would not in any sense duplicate the proceedings before this

Court and the preliminary submission was rejected.

It may be desirable to draw attention to the

distinction drawn by the Full High Court in Australlan

Federation of Air Pilots v Flight Crew Officers Industrlal

Tribunal (1968) 119 C.L.R. 16 between an lndustrlal dispute

on the one hand and bans imposed by a union In an attempt to

force the granting of a claim. Taylor J. sald (at p. 39) :

“It is perhaps necessary to observe once agaln that i is not

the industrial action taken to enforce a demand that

constitutes an industrial dispute; an industrlal dispute is

constituted by the rejection of a demand relating to an

industrial matter or matters made by one side upon the other

... ( R e g . v Foster; Ex parte Commonwealth Steamship Owners‘

Association (1956) 94 C.L.R. 614).” (see also the reasons for

judgment of Kitto J. and	Owen J. at pp. 35 and 44
respectively of that report).

There was no cross-examination of any deponent on the contents of the affidavits filed in support of the two

applications and no affidavit or other evidence was tendered

by the union. As the present hearing is confined to

applications for interlocutory injunctions, the Court has not

formed any concluded view as to the evidence. Mr. Moshinsky

5 .

did not submit - and in my opinion could not have submitted

on the evidence before the Court - that either applicant had

failed to establish a prima facie case in the sense used in Beecham's case (1968) 118 C.L.R. 618 or "a serious question

to be tried" (per Gibbs C.J. in The Australian Coarse Grain

Pool Pty. Ltd. v The Barley Manufacturing	Board of Queensland
(1982) 57 A.L.J.R. 425).

It then becomes necessary to consider whether the injury which each applicant would be likely to suffer, if the

injunction sought were refused, outweighs any in~ury or inconvenience which each respondent would suffer if the

injunction were granted. In opposing the applications for

interlocutory injunctions, Mr. Moshinsky confined his

submission to the issue of the "balance of convenlence".	He
submitted that it was :

"appropriate for this court to take into account other avenues for the resolution of the dispute exists where a respondent can persuade you that it betwen the parties ... We submit that if a situation

genuinely wishes to facilitate the settlement of a

dispute by conciliation and in all the circumstances

it would be just to do so, that is a factor which

ought to be taken into account against the granting

of an injunction on an interlocutory basis."

Mr. Moshinsky did not, and in my opinion could not, make an

application under the provieions of S . 8OAA of the Trade

Practices Act which were inserted in the Act - in 1980.

HOWeVOr, he 8ought to gain 8ome mupport for his submissions

from the general tenor of the terms of 8 . BOAA. That section

permit8 the Court to 8tay the operation of an injunction

6 .

where the Court ' l . . . considers that to do so would be likely

to facilitate the aettlement of the dispute by conciliation and that in all the circumstances it would be lust to do so

.. . However, Mr. Moshinksy's submission cannot succeed

because there is nothing in the evidentiary material	to
suggest that the refusal of injunctions would be likely	to

facilitate the settlement by conciliation of any relevant

dispute. Nor is there anything in the evidence which tends to show, in my opinion, that in all the clrcumstances it would be just to refuse to grant interlocutory in]unctlons. The Court might well decide, in an appropriate case, that In

all the circumstances it would be just o refuse

interlocutory rn]unctions under S. 45D where an appllcant was

refusing, without reasonable cause, to meet the

representatives of the union in order to discuss a relevant

issue or where relevant conduct of an applicant was

unconscionable, for example, conduct exposing members of the

union to danger to life or to health. However, In the

present proceedings there is no evidence suggesting that the

conduct of either applicant is open to any criticism.

As to the "balance of convenience", the unlon did

not put any material as to any in~ury or inconvenience which

it would suffer if the injunctions were granted. Mr. Moshinsky submitted ".. that if an injunction is granted then

the legitimate fulfilment of a union's activities for the

purpoae of protecting the economic welfare of its members

would alno be affected . .'I. However, on the evidence I am

aatiafied that the injury which each applicant would be

likely to suffer, if the injunction sought were refused, outweighs any injury or inconvenience which each respondent would Buffer if the inlunction Bought were granted. ,

Accordingly, I am satisfied that, in respect of

each respondent other than Mr. Clark and Mr. Belan, each

applicant is entitled to the benefit of the interlocutory

injunction sought pending the hearing and determination of

the matters. Upon each applicant, by its counsel undertaking to the Court to pay to any party adversely affected by the interlocutory injunctions such compensation (if any) as the

Court thinks just, in such manner as the Court directs, I

will make the orders sought against those respondents.