Re Adler, G

[1989] FCA 328

IN TEE FEDERAL COURT OF AUSTRALIA	)
)
GENERAI. DIVISION	) No. W 504 of 1976
1
BANKRUPTCY DISTRICT IN TEE	1
)
STATE OF NEW SOUTH WAU?S AND TEE	)
1
AUSTRAtIAN CAPITAL TERRITORY	)

Re:	GEORGE ADLER
-

Applicant

CORAL: Einfeld .l.

DATE : 7 February 1989

PLACE: Sydney

M-TEMPORE JUDGMENT

The applicant for an order of discharge is aged 41 years of age who became a bankrupt on 26 October 1976. The bankruptcy was subsequently

extended for a period of 10 years from February 1981 which explains why this application for discharge has now to be made if in fact the applicant is to be released from bankruptcy before the expiry of that period. The applicant has made two previous applications for annulment, one prior to and one after he had fully paid off all the debts which had been marshalled in the bankruptcy.

two, Davies J on 7 November 1988 said that it was inappropriate to annul i

Both applications for annulment were dismissed but in the later of the

the bankruptcy in the light of the matters of moral turpitude and other questions which his Honour detailed in the judgment, but that it would now be appropriate to grant a discharge.

On 24 December 1985 upon the application of the Law Society of New South Wales, Morling J made a number of orders including that the bankrupt not be discharged by virtue of section 149'until further order of the court. It therefore comes to the court today to determine whether such an order should now be made. The trustee's report and the judgment of Davies J, the facts of which are admitted by the applicant, reveal a number of matters to which subsection 6 of section 150 applies, in particular the matters set out in paragraph (h), namely that the bankrupt has been convicted of offences of fraud or fraudulent breach of trust. In those circumstances, it appears both from the words of the section arguably and from a recent decision of Justice Woodward that subsection 5 provides only two choices to the court in such circumstances, namely to refuse an order of discharge or to grant a suspended order of discharge.

It seems to me that this is an appropriate case for granting a discharge. The applicant has now paid all the debts including his debt

Be seems in all respects to have now made peace with himself, no less	to society in relation to the offences which were proved against him.	than with those to whom he owed money and with the community whose rules of behaviour he broke at an earlier stage. Bankruptcy laws are not entitled to be used as some form of double penalty when the conduct of the bankruptcy has been satisfactory and has successfully recovered the debts involved and when the operation of the crlminal law has enabled the community to visit its judgment on miscreants.
For those reasons I will make an order of discharge whlch w l l l take effect from 9am on Monday February 13.

I certify that this and the -' ha

I preced~ng pages are a true copy of the

Reasons for Judgment here~n of his Honour

Justice Einfeld

&(','?at .faRA%

Dated: 7 FE &R ufi RY I 9 89

CATCHWORDS

TRADE PRACTICES - Secondary boycotts - Bans on installation of
shower screens, wardrobes, etc - Bans imposed following
dispute regarding superannuation payments and pursuant to
demarcation dispute - Application for interlocutory orders -
Whether serrous question to be tried - Issue as to Identity of
responsible union - Balance of convenience - Dlscretlon of
Court - Whether grant of relief to company should be made

conditional on undertakings by it as to future conduct.

Trade Practices Act 1974 ss.45D. 80.

N G 2 8 0 of 1989

FEDERATED IRONWORKERS' ASSOCIATION OF AUSTRALIA v THE BUILDING

WORKERS' INDUSTRIAL UNION OF AUSTRALIA & ORS

~ ~ - - -...

DONROSAN PTY LIMITED cradlng as IDEAL SHOWER SCREENS v THE

BUILDING WORKERS' INDUSTRIAL UNION OF AUSTRALIA & ORS

Wllcox- J

Sydney-

30  June- 1989

IN THE FEDERAL COURT OF AUSTRALIA	)
I
NEW SOUTH WALES DISTRICT REGISTRY )	No. N G 280 of 1989
GENERAL DIVISION	)

BETWEEN: FEDERATED IRONWORKERS'

ASSOCIATION OF AUSTRALIA

Applicant

AND: THE BUILDING WORKERS'

INDUSTRIAL UNION OF

AUSTRALIA

Flrst Respondent

DONALD McDONALD

Second Respondent

BUILDING WORKERS' INDUSTRIAL UNION NEW SOUTH WALES BRANCH

Third Respondent

CORAM:	WILCOX J
PLACE:	SYDNEY
DATE	:

- 30 JUNE 1989

. MINUTES OF ORDER

UPON THE APPLICANT givlng to the Court the usual undertaking
as to damages:
THE COURT ORDERS THAT:

1.        The first and third respondents, thelr servants and agents, and the second respondent by hlmself be

restrained, pending further order of the Court, from:

(a) imposing, maintaining, giving effect to or enforcing any ban or limitation upon the acquisition of goods or servlces by any person from Donrosan Pty Limited

trading as Ideal Shower Screens;

(b) aiding, abetting, counselling or
procuring any person to engage in the
conduct referred to in para.(a);

(C) induclng or attempting to induce, whether

by threat, promlse or otherwise, any

person to engage in such conduct;

-

-

-

=

-

-

-
.,

(d) belng in any way, dlrectly or indirectly, 3

- i

-

knowingly concerned in, or party to, such

conduct by another person; and

(e) consplrlng with any other person or persons to engage in such conduct.

2.         The costs of thls appllcatlon be applicant's costs in the principal proceeding.

3.         There be liberty to any party to apply on 24 hours' notice.

Note:  Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY )	No. N G 288 of 1989

)

GENERAL DIVISION 1

BETWEEN: DONROSAN PTY LIMITED tradinq

as IDEAL SHOWER SCREENS

First Respondent

DONALD MCDONALD

Second Respondent

BRIAN MILLER

Thlrd Respondent

BUILDING WORKERS' INDUSTRIAL UNION NEW SOUTH WALES BRANCH

Fourth Respondent

CORAM :  - WILCOX J

PLACE : - SYDNEY

.

DATE :  30 JUNE 1989

NOTE OF AMENDED UNDERTAKING

The undertakrng (il)(B) as formulated in the distributed
Mlnutes of Order was amended to read as follows:

( B ) it wlll pay to the Scheme within

seven days of any assessment or
demand issued to the applicant by
the Trustee or Manager of the Scheme
any moneys assessed by the audltors

to the Scheme as being due by the

applicant under that Scheme.

Associate:

Date:  30 June 1989

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) No. N G 288 of 1989
)
GENERAL DIVISION	)

BETWEEN: DONROSAN PTY LIMITED tradlnq

as IDEAL SHOWER SCREENS

AND: THE BUILDING WORKERS'

INDUSTRIAL UNION OF

AUSTRALIA

First Respondent

DONALD McDONALD

Second Respondent

BRIAN MILLER

Third ~espondent

BUILDING WORKERS' INDUSTRIAL UNION NEW SOUTH WALES BRANCH

~ourth Respondent

CORAM:	WILCOX J
PLACE: -	SYDNEY

-

DATE :  - 30 JUNE 1989

MINUTES OF ORDER

UPON THE APPLICANT:

(i) glving to the Court the usual undertaking as to damages; and

( i ~ )	undertaking to the Court that, during the
cont~nuatlon of the order hereby granted
that;

(A) it wlll regularly and promptly

discharge the whole of its
obligations under the Building

Unlons' Superannuation Scheme; and

(B) it will pay to the accountants of

the Scheme w ~ t h ~ n seven days of any

assessment or demand by them any

moneys assessed by those accountants

-

-	as belng due by the applicant under	-
-
= .
-

that Scheme: -

THE COURT ORDERS THAT:

1. The f ~ r s t and fourth respondents, their servants and

agents, and the second and thlrd respondents by

themselves be restrained, pend~ng	further order of
the Court, from:
(a)	imposing, maintaining, giving effect to or enforcing any ban or llmitatlon upon the acquisition of goods or services by any person from Donrosan Pty Llmlted

trading as Ideal Shower Screens;

(b) aiding, abetting, counselling or
procuring any person to engage in the
conduct referred to in para.(a);

(C) inducing or attempting to induce, whether

by threat, promlse or otherwise, any

person to engage in such conduct;

(d)	being in any way, directly or indirectly, knowingly concerned in, or party to, such conduct by another person; and
(e) conspiring with any other person or	-
- -3
-

-

persons to engage in such conduct.	i.
-
?

2.        The costs of thls application be applicant's costs in the principal proceeding.

3.        There be llberty to any party to apply on 24 hours' notice.

Note:  Settlement and entry of orders is dealt wlth in Order
36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)
1
GENERAL DIVISION	)

BETWEEN: FEDERATED IRONWORKERS'

ASSOCIATION OF AUSTRALIA

Applicant

AND: THE BUILDING WORKERS'

INDUSTRIAL UNION OF

AUSTRALIA

First Respondent

DONALD NcDONALD

Second Respondent

BUILDING WORKERS'
INDUSTRIAL UNION NEW SOUTH

WALES BRANCH

2

BETWEEN: DONROSAN PTY LIMITED

trading as IDEAL SHOWER^

i

SCREENS

Applicant

AND: THE BUILDING WORKERS'

INDUSTRIAL UNION OF
AUSTRALIA
DONALD McDONALD

Second Respondent
BRIAN MILLER

Third Respondent

Fourth Respondent

CORAM :	WILCOX J
PLACE:	SYDNEY
DATE :	30 JUNE 1989

REASONS FOR JUDGMENT

There are pendlng in the Court two proceedings

alleglng contraventlons by varlous persons and bodies of s.45D
of the Trade Practices Act 1974. The flrst proceeding is
brought by the Federated Ironworkers' Unlon of Australia, an

employees' organization reglstered under the Industrlal

Relatlons Act 1988. The respondents named in that procedlng -

-

-

are The-Bulldlng Workers' Industrlal Union of Australia, 5

- -

another employees' organization reglstered under the
Industrlal Relatlons Act, Donald McDonald, the branch
secretary of the New South Wales branch of that organization

and the secretary of the State unlon called Bulldlng Workersr

~ndustrial	Unlon, New South Wales Branch, and also the State
unlon itself.	The State unlon is reglstered under the

Industrial Arbltratlon Act (NSW) 1940. As will appear, the

similarity of name between the State branch of the federal
organization and the State union is a cause of some confusion.

Except where it is necessary to make a distlnctlon between the two entities I wlll use the abbreviation "BWIU" to refer to this body in either or both of its manifestatlons.

In the second proceedlng the applicant 1s Donrossan

Pty Limlted, a company whlch carries on the buslness of manufacturing and installing shower screens, securlty screens, mlrrors, bullt-ln wardrobes and the llke. The company trades under the business name "Ideal Shower Screens". The respondents named in that proceedlng are the three respondents to the FIA proceedlng and, in addltlon, one Brlan Mlller, an

organizer employed by the State unlon.

Each of the applicants has moved for interlocutory rellef, seeking orders in relation to bans said to have been

imposed by the respondents upon the supply of goods and

services by Donrosan. Each of the applicants offers the *sual	-
?

undertaking as to damages. The two interlocutory appllcatlons -

have been heard together, the evldence in each matter being

treated as evldence in the other, subject to relevance.

Donrosan carries on buslness principally at two

locations: Alexandria in Sydney and Wallsend near Newcastle.
Out of its total workforce, some 60 people are employed at
Alexandria and some 20 at Wallsend. The company supplles both
what it calls the "domestic market", that is the market for
equipment to be Installed into individual dwelllng units by
builders, and "the commerclal market", large scale resldentlal
or commerclal projects in whlch the lnstallatlon work 1s
usually performed by Donrosan. It 1s in relation to the
latter area of activrty that the present dlspute arises,
employees of Donrosan having been denled permlsslon to Instal
the company's products in commercial projects.

The dispute goes back to October 1988. Mr S A

Fletcher, the managing dlrector of Donrosan, conceded in evidence that, at that time, the company was four months in arrears wlth its payments under the Bulldlng Unlons

Superannuation Scheme (BUSS). He ascribed thls to an

oversight by one of the company's staff. The failure of Donrosan to make these payments appears to have been the orlgln of the dispute between the company and the BWIU. The

dlspute quickly escalated because of two factors: some of

Donrosan's Alexandria employees took out membership of tG FIA -

-

rather .than the BWIU -- thereby creating a demarcation dlspute i

between -the PIA and the BWIU -- and, apparently in
retaliation, bans were imposed by the BWIU upon Donrosan

installations.

On 21 November 1988 the dispute was taken before

Commissioner Bennett of the then Conclliatlon and Arbitration
Commission. The clalm then made by the BWIU was that
Donrosan's employees at Wallsend, who were FIA members, should
reslgn from that organlzatlon and ]oln the BWIU. I gather
that the wallsend workers had tradltlonally been FIA members
whilst most of those at Alexandria had been members of the
BWIU. At the conference on 21 November, Donrosan, the FIA and
the BWIU were all represented. The BWIU representative was Mr
Peter McClelland, who announced his appearance as being on
behalf of "the Bulldlng Workers' Industrial Union of

Australia, New South Wales Branch". There was dlscusslon

about a number of matters, principally the demarcation dlspute
between the FIA and the BWIU. A clalm was made by Mr
McClelland that Donrosan was still in arrears in connection
wlth BUSS. Towards the end of the conference Commlssloner
Bennett referred to the various matters whlch had been
canvassed as "secondary issues". He indicated that he
regarded the bans as the matter of prlmary Importance and
asked Mr McClelland why "do you not llft the bans and have
talks wlth the FIA on a national basis if necessary?". Mr

McClelland replied:

"My brief in thls particular matter is that the : z

- bans wlll stay on untll such tlme as thls - ..

-	company honours the understanding whlch has	1
- A

- exlsted between our unlon and self for over -

ten years. That is my brief."

The conference ended by the Commlssloner maklng a serles of recommendations:

"Therefore, I recommend: one, that the BwIu
takes such steps as are necessary to
immediately remove all bans and limitations
placed on the work of thls company; two, that
lmmedlate discusslons take place between the
Federated Ironworkers Association, Newcastle
Branch, and the Bullding Workers' Industrial
Union, Newcastle Branch, for the purposes of
resolving thls dispute over union membership;
three, if the discusslons at the branch level
prove unsatisfactory, then the matter should
be referred by both unions to the New South
Wales Labor Council wlth a request that it
appoint a committee to resolve the dlspute;
four, if these procedures are still unable to
resolve the dispute, then the matter should be
referred back to thls Commission for any
assistance it may be able to provide to the
parties."

The matter came back before the Commissioner one week later, on 28 November. The Donrosan representative complained that the bans were still in force, detalls belng glven.

Reference was made to the possiblllty of Invoking s.45D of the
Trade Practices Act. Mr John Sutton, who appeared wlth Mr
McClelland and another official "for the BWIU New South Wales
branch" outlined the hlstory of the relationship between
Donrosan and the BWIU. He referred to an industrial agreement
made on 17 February 1988 between The Glass Merchants'

Association of New South Wales, of whlch Donrosan was a

-

member, and the BWIU and complained of breaches of that <	-
-

agreement. Similar allegations were raised in these 4

- -

proceedings, in the cross-examination of Mr Fletcher. Mr

Sutton also complained of the conduct of FIA. Durlng the course of hls address Mr Sutton said:

or our part, Mr Commlssloner, if there are no

further attempts made to coerce the workers at
either of the plants into another union, we
would be prepared to recommend an immediate
resumption of our members and to llft all bans
on the company."
Once agaln the conference concluded wlth the maklng

of a recommendation by the Commlssloner, thls time in the

following terms:

"1 That all industrial dlsputatlon currently

being enforced by the BWIU Including bans and

limitations be lifted forthwith.

2 That all parties including the company, the

BWIU and the FIA invoke the status quo posltion as it exlsted at 5 October 1988 prlor to this dispute.

3 That upon the carrying out of the two

foregoing recommendations urgent talks take place

between the unions in dispute and the New South

Wales Labor Councll or the ACTU.

4 That the partles make contact at the

appropriate time to arrange for a sultable date

before me for a report back."

According to clalms subsequently made by the BWIU, ~t complled wlth the recommendation of Commissioner Bennett for

the llftlng of all bans and llmltations; but, it said, the

other recommendations were not Implemented by the other
parties. However that may be, by 9 December 1988 the matter

-

was back before the Commissioner with a complaint on behalf of -

-

Donrosan that bans had been reimposed. Mr McClelland, wh5

- 7

again appeared for "the Bullding Workers' Industrial Union of
Australia, New South Wales branch", justlfled the BWIU
posltlon in relation to the dispute wlth the FIA. He did not
deny the allegation regarding the relmposltion of the bans.
Once again the conference ended wlth a recommendation for the
termlnatlon of industrial actlon by the BWIU.

On 17 January 1989 the matter was again before Mr Commissioner Bennett. Mr R Miller, who appeared "for the BWIU", lnformed the Commissioner:

"The bans are stlll in place because of the
fact of the union membership in the factory.
A lot of them are still dual tlcketed. We
stlll have BWIU members in the factory who are
also FIA members."

There was discussion about the possible resolution of

the lmpasse by a ballot of members, leadlng Commlssloner
Bennett to recommend the conduct of a ballot by an officer of
the Labor Council of New South Wales.

No such ballot was conducted. On 30 January 1989 Commissioner Bennett again heard a report upon the dispute.

It was conceded by Mr NcClelland, appearing on behalf of "the

Building Workers' Industrial Union of Australia, New South

Wales branch", that there were currently BWIU bans on three

building sltes. In response to a direct question as to what

-

-

was required	-	by the BWIU for the bans to be lifted, Nr	3
>

McClelland indicated that the BWIU requlred reversion to &e

- 1:

status quo as at 5 October 1988, that is that all Alexandria employees be BWIU members. Nr NcClelland indicated that the BWIU had asked the Australlan Councll of Trade Unions to

convene a meeting to discuss the dispute. The conference
ended wlth a recommendation by the Commissioner that the Labor
Councll of New South Wales be requested by the two unlons to

dlscuss the matter with the ACTU urgently.

Upon 2 March 1989, the day following the commencement

of the Industrial Relations Act, there came before
Commlssloner Grimshaw of the Australian Industrial Relations
Commission two disputes involving a number of parties,
including the FIA and the BWIU. In the course of an opening

submission, Mr F Cole, advocate for the Metal Trades Industry

Association, referred to bans Imposed on Ideal Shower Screens by the BWIU. Reference was made to a leaflet, which is in evidence in these proceedings and which shows a photograph of a BWIU picket line above the following:

"IDEAL SHOWER SCREENS AND THE FIA TRY TO

SMASH AWARD RATES AND CONDITIONS -

ALL OUT ATTACK ON BWIU
- JOBS BANNED -

Ideal Shower Screens have been banned for colluding with the Federated Ironworkers'

Association to smash award rates and

conditions and intimidate BWIu members. Ideal Shower Screens is waging a campaign to force BWIU members to join the right-wing Federated Ironworkers Association. The dispute, which began last October, has seen BWIU members locked out of factories and strlke-breaklng labour used to cross picket	.	-
lines.	-	-
The dispute began when the BWIU found the	-

-

company had withheld workers' BUSS super

- payments. Only two of the 10 workers at the	i
- company's Wallsend plant had recelved payments *

in the past 16 months, costlng them thousands
of dollars.
Following a strlke by the workers, the company
agreed to pay up. Instead it tried to
persuade workers to renounce their BWIU

membership and ]oln the FIA.

The leaflet concluded wlth the following, in bold prlnt:

"If the FIA had any trade union principles,
they wouldn't have helped the boss to deny the
workers thousands in back-paid superannuation,
and to shift the workers onto a lower award,

just so as to poach a few BWIU members.

IDEAL SHOWER SCREENS WILL CONTINUE TO BE
BANNED THROUGHOUT THE INDUSTRY UNTIL

SUCH TIME AS THEY:

1. Comply with their legal obligation to make

all back-payments due to members under the

BUSS scheme.

2. Pay their factory members in conformity

with the BWIU Glass Workers (state) Award.

3. Stop intimidating their members into

joining scab unions such as the FIA."

The leaflet bore the seal of the Bullding Workers' Industrial Union of Australia, that is the federal organization. It was stated to be authorized by Mr McDonald as "Secretary, Bulldlng

Workers Industrial Union".

Durlng the course of hls address, Mr D Mathews, who appeared for "the Buildlng Workers' Union of Australia",

stated that the leaflet was "a factual document", " ~ t does

carry the history of thls drspute we have with Ideal Shower

Screens". In response to a question from the CommlssionG, Mr -

-

Mathews said that "our members are taking actlon against M e a l -

Shower Screens". He explained that "the actlon is that they refuse to fix their products on certain sltes". Later the following exchange occurred:

"THE COMMISSIONER: If I was to direct the
Industrial Registrar of thls Commlsslon to
conduct a ballot of all the employees of
Ideal Screens, for them to determine the unlon
of thelr choice, would you be prepared to llft
the bans on Ideal until such tlme as that
secret ballot is concluded?
MR MATHEWS: No, Mr Commissloner.

THE COMMISSIONER: I can assure you that it will not be conducted like you allege the previous ballot was. This will be done by the

Industrial Registrar of this place in

accordance wlth the law.

MR MATHEWS: I could not give that sort of commitment until the matter had been discussed by a State executive. They have made

decisions in respect to this dlspute, and in

accordance with the rules of our union they would be the ones who would have to resclnd such decisions as have been made."

Commissioner Grlmshaw adlourned the proceeding untll 10 March,
directing that all bans and limitations be lifted in the
meantlme and that the Industrial Registrar conduct a ballot of
the employees of Ideal Shower Screens to determine their
choice of union. The evidence does not establish whether or
not this ballot has been conducted

On 8 March 1989 a Notlce of Appeal was filed in the Australian Industrial Relations Commission against what was sald to be the order made by Commissioner Grlmshaw on 2 March

1989. The appellant was identified as "the Building Workers' <

--

W

Industrial Unlon of Australia", clearly the federal	-
-

-

i

organization. Thls appeal was, on 20 March 1989, withdrawn by .

counsel for the appellant; but before then, on 10 March 1989,
the matter was again before Commissioner Grlmshaw. On that
occasion Mr Cole complained that the bans on Ideal Shower
Screens remained in place, a statement which was not denied by
Mr Sutton, who appeared "for the BWIU". The Commissioner
directed the BWIU to llft all bans and limitations in respect
of Ideal Shower Screens and adjourned the matter untll 16
March 1989.

On 16 March 1989 Mr Cole agaln complained about the

bans. There was prolonged discussion about the whole dispute
at the conclusion of which the commissioner said:

"The Commission has just about exhausted all
avenues in seeklng a sensible, workable
solution to thls long drawn out dlspute. This
matter has now been before the Commission
seven times, and all recommendations or
directions of the Commission have been totally
ignored. At the outset, I should polnt out
that the attitude and actions of the employer
have generated much of the hostilities between
the competing unlons. It is clear, by the
evidence to date, that union-wise, the two
factories of the Ideal company were under
serviced by the BWIU, possibly for years,
until the union's actions in obtaining the

BUSS for all employees.

It seems that with the assistance or, at
least, the co-operation of the employer, the
FIA has become involved and commenced
enrolling employees as members. This, of
course, has asslsted in brlnging about the
current bans on the company. I have now
conducted a survey of the Sydney employees and
have ascertained that not all the employees

are unionised. Some are in the FIA, the

- remainder in the BWIU and/or the Timber

_ Workers' Union. Some are not in any unlon.

-

-Again, I repeat that the Commission has

exhausted all avenues in attempts to find a sensible solution by conciliation. I have, therefore, decided that the employees of

Ideal, in both Sydney and Newcastle factories,
have the choice of elther union without belng
coerced by either union or management. I
dlrect the BWIU to lift all bans and
limitations and compete for the membership of
Ideal employees on an equal basis with the
FIA. I remind the employer of his obliqatlons
to both unions under the-~ndustrial ~elitions

7 Act, in particular, the right of entry and

inspection of tlme and wages records.
In conclusion I accept Mr Sutton's suggestion
that the ACTU lnvolve ltself in this eternal
union row. I strongly recommend thls course
of action.

I repeat, I dlrect that all bans and llmltatlons be llfted."

Notwithstanding that direction, the bans remained.

The matter agaln came before Commlssloner Grlmshaw on 4 A p r ~ l
1989 and agaln on 11 Aprll 1989. On 4 Aprll Mr McClelland
conceded that the BWIU had bans in place. On 11 Aprll fir
Sutton stated that there had been little change in the
position. He referred to a meetlng at the Labor Council in
connection wlth superannuation payments and alleged that
Donrosan remalned "1n serlous breach" of the Bullding Industry
Agreement in relation to superannuation. Reference was made
to "pyramid subcontracting", which I understand to be the
practice of havlng installations made by persons who are
subcontractors rather than employees of the person responsible
for installations. After dlscusslon and an adjournment, the
Commlssloner made a formal order that "the Building Worke&sl

Industrial Union of Australia llft all bans on the receipt	- of
-

.

.

from Ideal Shower Screens onto bulldlng sites". 5

It appears that this order was disregarded. On 22

May 1989 Commlssloner Grimshaw preslded at a compulsory
conference at which "the Building Workers' Industrial Union of
Australia, New South Wales branch" was represented by Mr
McDonald and Mr Sutton. Once agaln it was claimed, this tlme
by the FIA representative, that the bans remained in place.
Mr McDonald conceded this to be the position, though he sought
to justify the fact by reference to the conduct of both
Donrosan and the FIA. Commissioner Grimshaw concluded the
discussion by recommending, amongst other things, "that the
Commisslonls decislon in respect to the Ideal Shower Screens
case be honoured". He then adjourned the matter for two days.

On 24 May the hearlng continued. In relatlon to

Ideal Shower Screens -- there were other matters in issue --
it followed much the same course as at the earller hearlng.
The debate before the Commlssloner was conducted upon the
basis that the bans remained in existence. Commissioner
Grimshaw indicated that, if the bans were not lifted within 48
hours, he would sign orders varying the appropriate awards to
provide that "no work as directed, no pay".

Despite that lntlmation of intention, the present

-

applicants did not return to the Commission for relief.	=
-
..

Instead-, on 26 May 1989, FIA filed its Application in this -

Court. Donrosan followed with an Appllcatlon filed on 2 June
1989. After certain preliminary directions, arrangements were
made for the interlocutory hearing to commence on 22 June

There is no doubt that, over many months, bans have been maintained on the installation of Donrosan products at various building sites around Sydney. Recently, it appears, a

Newcastle slte has also been banned. The evidence establishes a consistent pattern of conduct whereby persons coming to a slte to fix screens and other flttlngs are sent away by BWIU representatives, or by other persons after consultation with BWIU representatives. This pattern continues to the present time, people having been denied access to building sites as recently as 8 June 1989 in Sydney and 19 June 1989 in Newcastle. Both Mr McDonald and Nr Miller have played a prominent part in the maintenance and enforcement of the bans.

The bans have resulted in substantial losses being sustained by Donrosan. In hls affidavit evldence Mr Fletcher

gave detalls of several jobs in respect of whlch he had

submitted a tender but had been informed by a representative

of the building contractor that Donrosan would not be glven

the order because of the problems which the company had with

-

the BWIU. In other cases contracts actually awarded to 4	-
Donrosan have been terminated because of the inability ofathe

- -

company-to install its products and the building contractor
has engaged a competitor of Donrosan.

It must have been obvious to those lnvolved in the imposition of the bans that they would be llkely to cause such

losses. But it seems that they have not regarded this as a matter of concern. The evidence of Mr Fletcher lncludes an account of a meetlng which he attended at the Labor Council bullding in Sussex Street on 5 Aprll 1989. Those attending the meeting included Mr Cole, a representatlve of the FIA and

Mr McClelland of the BWIU. According to the unchallenged

evldence of Mr Fletcher, Mr Cole said to Mr McClelland: "The

company is taklng all necessary steps to clear the matter of
the superannuation, it's only falr that the BWIU put a
moratorium on any bans for a period of tlme". Mr McClelland
replled "You've got to be loklng. As far as I'm concerned

this company is fucked".

Durlng the course of the hearing of these

interlocutory applications a question arose as to the ldentity
of the body whlch was responsible for the bans. Counsel for
the respondents accepted that the bans were imposed "by the
BWIU", but he contended that the relevant body was the State

union and not the federal organization. I accept that the

State union is involved in the bans.	For example, an article
supporting the bans on Ideal Shower Screens, written by ~ W I U	-

.

=

organiser Brian Mlller", was published in the February 19@

- 1

editlon of "Unity", the official journal of the State union
(and the Federated Englne Drlversr and Firemen's Association).
It is conceded that Mr Mlller is employed by the State union.
Numerous letters promoting the bans have been written on a
letterhead styled "Building Workers' Industrial Unlon of
Australia New South Wales branch". There is amblgulty about
that title, the State union bearing exactly the same name as
the New South Wales branch of the federal organization,
subject only to the suggestion of counsel that the word "the"
should appear at the beginning of the latter, but not of the
former, title. Moreover, further to compound the confusion,
the letterhead refers to the named body as being registered
under both the Commonwealth and the New South Wales Acts, a
legal impossibility. Apparently, the letterhead is used by
both the State and federal bodies. However, some of those
letters were signed by Mr McDonald as "Secretary" or as "State
Secretary". Mr McDonald's federal position is "Branch
Secretary". These facts tend to suggest that, in writing the
letters, Mr NcDonald was acting on behalf of the State, rather
than the federal, body. Notwithstanding these matters, there
is evidence to suggest that the federal organlzatlon is also
involved. The best indication of this 1s the varlous
appearances before the Conclliatlon and Arbltratlon Commission
and the Australian Industrial Relations Commission. Both of
these Commissions, of course, were constituted under federal

legislation. In the normal course, federal organizations -

usually appeared, or appear, before those Commlsslons. state - -

unions-sometimes appear; but there is evidence of a practice,
In such a case, for the advocate to polnt out that he or she
is appearing for a State union and to seek leave to appear.
This course was not followed upon any of the occasions
referred to above. Moreover, as noted, the short-lived appeal
against the ruling of Commissloner Grimshaw of 2 March 1989
was lodged on behalf of the federal organization. Plainly,
those concerned with the appeal thought that it was the
federal organlzatlon which had been represented by Mr Mathews
on that day.

In maklng its interlocutory application each

applicant relies upon s.45D(l)(b) of the Trade Practices Act.

That paragraph, in context, reads:

"45D. (1) Subject to this section, a person

shall not, in concert wlth a second person, engage
in conduct that hinders or prevents the supply of
goods or servlces by a third person to a fourth
person (not being an employer of the
first-mentioned person), or the acqulsitlon of
goods or services by a thlrd person from a fourth
person (not being an employer of the

first-mentioned person), where--

(a) ...

(b) the fourth person is a corporation and
the conduct is engaged in for the
purpose, and would have or be likely to
have the effect, of causlng--

(1) substantial loss or damage to the

buslness of the fourth person or of a body corporate that is related to that person; or

- -

(11) a substantial lessening of	-z
-

competition in any market in whlch	- -
-

--.

the fourth person or a body

-

corporate that is related to that
person supplies or acqulres goods or
servlces."

Although, in the case of FIA, the first alternative

in the opening words of s.45D(1) is also relled upon, counsel
for both applicants prlnclpally rely upon the second

alternative. They say that the roles of the flrst and second

persons are played by any comblnatlon of the present
respondents, or any of them with relevant unlon
representatives. The relevant conduct, they say, "hlnders or
prevents ... the acquisition of goods or services by a third
person" (the particular bulldlng contractor) "from a fourth
person" (Donrosan). As to para.(b), although the applicants
do not discard sub-para.(ii), they rely primarily upon
sub-para.(i); contending that both the purpose and effect of
the conduct is to cause substantlal loss or damage to the
business of Donrosan.

It is neither necessary nor desirable for me to

express a concluded view about the evidence. It is enough to

say that there is clearly a serlous question to be tried in
connection with each of the elements of the applicants' cases.
Counsel for the respondents does not suggest otherwise.
Neither does he suggest that the evidence indicates the
availability of a defence. For the purpose of these
applications, counsel expressly dlsavows any reliance upo& - --

s.45D(3)=of the Act, whlch provides a defence in the casesf -

.

conduct undertaken for certain lndustrlal purposes. Nor does
counsel argue that consideration of the balance of convenience
ought to lead the Court to withhold relief. I agree with h ~ s
tacit concession upon that matter. The damage occasioned by
the bans to Donrosan is both substantlal and difficult to
quantify; it is unlikely to be fully recoverable. On the
other hand the respondents are unlikely to suffer any loss if
injunctions are granted. The interests of BWIU members can be
safeguarded by requiring appropriate undertakings and by
reserving llberty to apply.

Apart from puttlng in lssue the involvement in the

bans of the federal organization, counsel for the respondent has limlted himself to submitting that any relief granted to Donrosan should be conditioned upon the givlng of certain

undertakings by that applicant. No submission at all is put
in response to the case made by the FIA.

The essential proposition of counsel in connection

with Donrosan is that this applicant is not free from
responsibility for the imposition of the bans. Counsel polnts

to Mr Fletcherrs concession of arrears in BUSS payments. He

polnts out that, upon the evidence, the dispute arose because of the company's fallure to make these payments and was compounded by the company's action in allowing FIA to "poach" BWIU members. In cross-examlnatlon other matters were al&	-	-
put to Mr Fletcher. It was suggested that some employeessf	-

Donrosan; who were sent to building sites, were not members of the BWIU, that the company had engaged in pyramld subcontracting and that the company had falled to malntain a proper reglster of its employees containing, amongst other information, details of each employee's union membership. Counsel argues that, in the exercise of its discretion, the Court should deny rellef to Donrosan unless it is prepared to offer undertakings to the Court in relation to each of these matters.

Counsel for Donrosan submlts that no undertaklng --

other than the usual undertaklng as to damages -- should be required of hls client. He argues that, in relation to the last three matters, there is no evidence of the conduct

complained of. If, as counsel for the respondents suggests, there is conduct by Donrosan whlch constitutes a breach of a certified Industrial agreement, the remedy, according to

counsel for Donrosan, is to take proceedings for a penalty
pursuant to s.178 of the Industrial Relations Act. Counsel
does concede that there have been breaches of Donrosan's
obligations in respect of BUSS; but he says that there is no

current default.

I accept the submission of counsel for Donrosan In relation to the matters other than the BUSS payments. There

1s no evldence of any breach by Donrosan of its obligatl&s in

-

respect, of any of these matters. And there is no evldencg

- -

that disputes in connection wlth any of those matters had
anythlng to do with the imposition or maintenance of any of
the bans. If there is a problem in regard to any of these
matters, the BWIU has rights under the Industrial Relations

Act. If the sltuatlon should arlse, in the view of the BWIU,

that Donrosan acts so unreasonably in connection wlth one of
these matters that it would be oppressive to the BWIU, and

detrimental to the interests of its members, to tle the hands

of the BWIU in connection with available weapons of
retaliation, the respondents can apply to this Court pursuant
to the llberty to apply.

In relation to the BUSS payments, the situation is rather different. The failure of the company to keep its BUSS

payments up to date was undoubtedly a major cause, if not the

major cause, of the initial dispute. It ought not to be

necessary for a unlon to supervise the discharge by an

employer of its obligatlons to make superannuation payments.

Oversight by an employee is not an acceptable excuse;

management must establish a system which will ensure that

oversights do not occur. It is true that, when the matter

flared into dispute, a substantial payment was made. There

was a disagreement whether that payment was sufficient to

discharge the company's obligatlons. After a meeting with the

Labor Council of New South Wales the company made a further

-

-

payment. There is a continuing dispute as to whether any= - -

further-moneys are owing; that question is apparently b e k g -

-

investigated by the Scheme accountants.

Durlng the course of the hearing of these

applications it emerged that a small amount of money was then
owing by the company for interest on late-paid BUSS
contributions. This sum was then paid. It may therefore be
the position that, at the present time, no moneys are due by

Donrosan to BUSS. If moneys are found to be owing, it may be

that they will be promptly paid.

Notwithstanding those possibilities, it is ln my

opinion desirable that Donrosan be required to give an
undertaking in respect of its BUSS obligations. The company's
record in connection with those payments is not good and that
record has been a major factor in the current problem between

it and the BWIU. If, as I thlnk is appropriate, the BWIU

should be restrained from breaching s.45D of the Trade
Practices Act, it is reasonable to exact an undertaking
designed to ensure that Donrosan does not repeat the conduct
which gave rise to that breach. Accordingly, it will be a
condition of any relief to Donrosan that the company give an
undertaking to the Court, in addltlon to the usual undertaking
as to damages, that during the continuation of the order to be
granted in this application, it will regularly and promptly

discharge the whole of its obligations under BUSS and that, in

particular, it will pay to the accountants of the Scheme;- -

-

within seven days any moneys assessed by those accountan& as

- i

being due under that Scheme.

So that there may be no mlsunderstanding of the

position, I should say that, in comlng to the conclusion that
there is a serious question to be tried that the conduct of
the respondents constitutes a breach of s.45D of the Trade

Practices Act and that it 1s appropriate to make an

interlocutory order in each case, I express no view whatever upon the merits of the current dlsputes between the parties. The major current dispute appears to be the demarcatlon

dlspute between the FIA and the BWIU. The merits of that
dispute have not been lnvestlgated in these proceedings. It
would not have been appropriate to do so; the resolution of
demarcation disputes is not a task of thls Court. In default
of agreement between the unlons concerned, such a dispute
mlght be resolved in any one of a number of ways; several of
which were discussed before the Commission. It is not for me
to comment upon whlch of those methods is the most
appropriate. I slmply wish it to be clearly understood that
the Court takes no positlon on the demarcatlon question. The
fact that relief is to be given to the FIA is a result of its
ability to demonstrate that, in thelr conduct of the dispute,
the respondents appear to have transgressed s.45D; it does
not reflect any vlew that the underlying posltion of the BWIU

is unreasonable

--

-

- ~n cases where interlocutory relief is granted t G
.	3

applicants the usual course taken, in respect of costs, is to
order that the costs of the interlocutory appllcatlon be the
applicant's costs in the principal proceedings. This means
that, if the appllcant 1s ultimately successful, these costs
are recoverable from the respondent; the baslc position of
the appllcant in the litigation havlng been vlndlcated. On
the other hand, if the applicant falls at the flnal hearlng,
no costs are payable in connection wlth the interlocutory
applicatlon. This position is justlfled by the fact that both
parties are shown to have taken lnapproprlate positions, the
applicant in brlnglng proceedings at all and the respondent in
unsuccessfully resisting the interlocutory applicatlon.
Interlocutory relref may be justified even in a proceeding
which ultimately fails.

However, the Court always retains a discretion on

costs. Exceptional cases sometimes arise. One such case is
where the conduct of a party has been so unreasonable as to
put the opposlng party to unnecessary expense. In such a case
a court may order costs upon a full indemnity basls. Degmam
Pty Limited v Wright (No.2) [l9831 2 NSWLR 354 was such a
case.

In the present case counsel for Donrosan seeks an order for costs upon an indemnity basis, argulng that the BWIU

-

caused his clients to incur unnecessary costs by puttlng it to - -. -

proof of matters about which there was no denial and by teing -

the point as to the identity of the particular body which took

the various steps attributed to the BWIU.

I have considered these matters but I do not think

that this is an appropriate occaslon upon which to depart from
the usual practice. The respondents did not unduly prolong

the hearing, which was completed in a llttle over a day. The

matter would have been completed wlthln a day if there had
been no occasion to investigate Donrosan's own conduct in
connection wlth BUSS. Finally, the respondents have not been
wholly unsuccessful, in that they have persuaded me to exact
one of the undertakings sought by them and reslsted by
Donrosan.

I certify this and the twenty-five (25)
preceding pages to be a true copy of
the Reasons for Judgment of
hls Honour Justlce Wilcox.

Date :  30 June 1989

In matter No. N G 280 of 1989

Counsel for the Applicant:	Mr M F Adams QC with Mr J P Phllllps
Sollcltors for the Applicant:	McLellands

Counsel for the Respondents: Mr S C Rothman Solicitors for the Respondents: Taylor & Scott

-

In matter No. N G 288 of 1989
Counsel for the Applicant:	Mr G Flick
Solicitors for the Applicant:	Cutler Hughes & Harrls

Counsel for the Respondents: Mr S C Rothman Solicitors for the Respondents: Taylor & Scott

Date(s) of hearlng:  22 and 23 June 1989