Roberts, J.T. v Murlar Pty Ltd

[1986] FCA 185

G164 of 1386

IFJ THE MATTER of the Trade

Practices Act 1974

BETWEEN:

John Thomas Roberts

Applicant

*W:

Murlar Pty Limited

First Respondent

The Buildinq Workers'

Industrial Union of Australia

Second Respondent

Marlo Alberlcl

Third Respondent

Lew Zivanovich

Fourth Respondent

Evatt CORAM J. 5 May 1986

REASONS FOR EXTEMPORE JUDGMENT

On 30 April 1986. the applicant. John Thomas Roberts sought ex

parte orders under the rules of court abridging tlme for a

directions hearing of the application and statement of clalm

Filed herein and for the hearina	of	his claim for interlocutory
relief therein referred to.

The Court beina satisfied that hose hearinus hould be

expedited. ordered that the matter be lxed for directlons 9.30

(f

am on Friday, 2 May 1986 and that the clalm for interlocutory

relief be then heard. Orders as to service and the fixing of

that date for the return date of subpoenas were also made.

In brief the applicatfon and statement of clalm herein alleged a

contravention by the first-named respondent being the employer of

the applicant and the second-named respondent, namely the

Buildlnu Workers’ Industrial Union of Australia (BWIU). an

organisation registered under the Conciliation and Arbitration

Act 1904 of paragraph 45E(l)Lc) of the Trade Practlces Act 1974

the Act

It 13 c laimed that the third-named respondent holds an official

positlon wlthln the BWIU and was its ]ob steward at the

applicant’s place of employment. The fourth-named respondent is

the person whom it is claimed qave directions on behalf of the

employer to the appllcant as to the work he was required to	do a
his place of work. Section 45E(l)(c) reads:

Subject to this section, a person who has been accustomed

or was under an obligation, to supply goods or services to,

or to acquire goods or services from, a second person shall

not make a contract or arrangement. or arrlve at an

understanding, with a third person (being an organlsation of employees, an officer of such an organisation, or

mother person acting for or on behalf of such an

organisation or officer) if the proposed contract.

arrangement or understanding contains a provision that -

.

ic) has the purpose of preventing or hindering the

first-mentioned person from acquiring or continuing to

acquire such goods or servlces to a condltion (not

being a condition to which the acquisition of such

qoods or services by the first-mentioned person from

the second person has previously been subject to

reason of a contract existins between those persons)

3s to the persons to whom. as to the manner in which.

or as to the terms on which. the second person may

upp ply any goods or services.

When the matter W ~ S called on at 9.30 am on Friday. 2 May, Mr

Os1 inqton of Queen’ S Counsel with M; Haylen of Counsel appeared

for the applicant: Mr Rothman of Counsel instructed by Taylor and

Scott appeared for the BWIU and the third-named respondent.

Mario.	That is how the third-named respondent appears in the
heading	to the proceedings. or then appeared, and as he was

referred to in the affidavit filed in support of the statement of

claim.

Mr Rothman indicated to the court that Mario’s surname was

Slberlci and that he was the lob steward for the BWIU at the

relevant construction l oh at Surrv Hills. Sydney, where the first-named respondent through its firm Alpine Erections was performing certain building work which included the work which

the applicant had been employed to perform for the past six

xeeks. Such work included certain rigging and scaffolding.

Mr Driver of Counsel, instructed by Benjafield Coyle and

Shanahan, appeared for the fourth-named respondent, Mr Lew

Zivanovich. There being no appearance by or on behalf of the

first-named respondent company, affidavits were tendered on

.

. Q.

behalf of the applicant proving service of the application and atatement of claim as ordered. at the reqistered office of that company as appearing in Corporate Affairs documents.

In this regard, it is noted that during the hearing the applicant

called on subpoena (for the production of documents) the Proper Officer, Cadophone Pty Limited, 11 Ixion Street. Winston Hills, that being the address of the first-named respondent as shown on

the Corporate Affairs documents which were tendered before the Court. That call on subpoena was answered by the fourth

respondent, Mr Lew Zivanovich. He indicated. inter alia:

(1) that he was the managing director of that company and

that he had not received documents in his capacity as

the managing director;

( 3 )	that the address shown in the Corporate Affairs document
as being the registered office of the company was the
home of a director of the company who was then, he
thought, overseas on holidays; and

( 3 ) that he had spoken to the solicitor for the first

respondent company about the matter as he understood it

from the papers which had been served on him in his

personal capacity as the fourth-named respondent.

The Court, having taken appearances. then indicated hat it would

hear the applicant's application for interlocutory rellef

referred to in the statement of claim. Mr Rothman then souuht to

move the court on a preliminary point of law. namely that the

documents as filed isclosed no cause of action. Thi S

application was deferred until the hearing of the application for

interlocutory relief.

It appears from the statement of claim and the affidavit of the

l p p l l c a n t f i l e d i n zupport. that the applicant is and has been

for some years a certificated rigger and doqman, that he had

xorked as a rigger and scaffolder in the building industry for

some six years and has been employed in that capacity for Alpine

Erections for the past 1Q months, Mr Lew Zivanovlch being the

person connected with Alpine Erections who normally told him what

xork he was requlred to do.

During all relevant times the applicant has been a member of the

Australian Buildinu Conjtruction Employees' and Builders

Labourers' Federation (the RLF): that he was not a member of the

BWIU nor did he wish to become a member of that orqanization:

that on 28 April last he was directed t o attend at the office of

his employer at Rydalmere and there to speak to Mr Zivanovich.

This he did. He deposes to the following conversations and

circumstances:

r

U.

I Yent to that office (that is the office at Rydalmere) and

3aw Lew Zivanovich at about 9-00 ot 9.15 am. I then had a

conversation with Mr Zlvanovich	to the followinu effect:
Zivanovich:

"I xant vou to slun this form".

He then handed me the documents marked C Lbeinu the

resiunation from the Australian Buildinq Construction

Employees' and Builders Ldourers' Federation) and the

document annexed and marked D1 and D2 (D2 beinu the reverse

side of D1) which was an application to become a member of

the Buildincr Workers' Industrial Union of Australia.

"If you do not sign these documents	you will be out on the
road. You will be flnished".

I then filled out the documents in the presence of Mr

Zi-Janovich and I said to Mr Zivanovich words to the effect,

"We do not have the money on us to pay the dues. can we pay

out of our next wases?"

Mr Zivanovich replied words to the effect,

"Yes that 1s okay".

When I filled out the documents I handed them to a qlrl

sitting behind a desk at the Rydalmere office and the glrl

behind the desk In the presence of Mr Zivanovich sald words

to the effect.

"You will have to crive me your BLF ticket".

Mr Zivanovich then said,

"WO ticket. no start. If	you do not hand your ticket over
7ou won't work".

Thereafter the applicant returned to the job site at Surry

Hills and spoke with the third-named respondent, Mr

Blberici as follows: (this conversation is set out in

paragraph 9	of the applicant's affidavit). The applicant
said:

"Lew said he will not let us back on the site unless we

hand in our BLF tickets".

Nario (that is the third-named respondent) said:

"It is okay to resume work. I do not care how many unions

anyone is in provided one of those unions i the BWIU."

The applicant then phoned Mr Zivanovich at Rydalmere. from

Surry Hills, and spoke with Mr Zivanovich as follows:

I 3aid. "Mario said it is okay to wwk".

Zivanovich said: "you are not nllowed to resume work

because you have not handed your tickets over, you will

have to get a clearance from D n McDonald at the BWIU".

It is understood that Mr McDonald 13 the NSW State

Secretary of the respondent. BWIU.

The applicant in his affidavit then proceeds to say that

later that afternoon he aqain telephoned Mr Zivanovich and

durinu that conversatlon	Mr Zivanovich said	t o hlm words to
the effect that:

3.

"I have spoken to Don McDonald and he says you are not to

go back on site: no ticket, no start".

The applicant in his affidavit then deposes as to his

financial position and in particular as to his dependence

upon his weekly income to make certain mortgage payments on

his house. Then in paragraph 14 of his affidavit he states

that he did not wish to reslsn from the BLF and join the

BWIU and 'y only completed and signed the documents marked C

and D (that is the resignation from the BLF and the

application for joining the BWIU) because Mr Zivanovich

said that	I would not be allowed to work if I did not do
SO."

Further. paragraph 15 of the affidavit shows that Mr

Zivanovich's request to complete the various forms referred

t o above was not confined to the applicant alone. There

yere some three other members of the BLF with him at the

time who were similarly requested to complete similar

forms

Durins submissions and arguments as to the granting of the

interim rellef Mr Oslinston indicated that his then instructions

.

xere to seek the interlocutory relief as sought in paragraphs B ,

E and F of the prayers for relief as set out in the statement of

claim against the first-named respondent only. Paraphrasing

those prayers or paragraphs, the relief sought was first that the

3.

. first-named respondent. that is CadophonePty Limited tradinq as

Alpine Erections, continue to employ the applicant vithout

imposig the conditions referred to above. Secondly, that that

particular respondent cease making the said arrangement or

arriving at undertakings to the effect of those arrangements or

understandings referred to above and thirdly. that the first

respondent cease and desist from putting into effect or acting

upon those said arrangements or understandings. .,,

Having heard subruissions as to interim r e l i e f . the court

indicated that it would then hear Mr Rothman as to his

preliminary point of law (see order 20 rule 2 of the Rules of

Court). He submitted that accepting for the purposes of the

submission. the truth of the facts disclose that the "services"

referred to in 45E (l)(c) which the first respondent. that is the

employer had been accustomed to acquire from a second person,

namely the applicant, Mr Roberts. were but the performance of

work under a contract of service and that that being so, were, by

definition (that is. s.4 of the Act) excluded from the meaning of

"services" as defined. Further he submitted that "services" as

used in paragraph 45E(l)(c) was the defined meaning.

"Services" is defined,	for	relevant	purposes,	in	s.4(1) as
including:

"Any rights ... benefits. privileges or facilities that are,

or are to be. provided. granted or conferred in trade or

commerce. and without limiting the generality of the

foregolng, includes the rights, benefits, privileges or

facilities that are or are to be provided. granted or

conferred under -

(a)	A contract for or in relation to:
(i) The performance of work ...

but does not include riuhts or benefits being the performance

of work under a contract of service".

Accordinuly Mr Rothman submitted that here could be no

arrangement or first-named respondent on the one hand and his clients. that understanding between the employer, the

is

the BWIU and Mr Alberici on the other hand which could have

affected the acquisition of servlces as referred to in s.45E bv

the employer from the applicant. Those clients, being the

organisation of employees and another person acting for or on

behalf of that oruanisation, were the "third person"	as referred
to in the section.
Mr Driver adopted Mr Rothman's submissions.

On the other hand. Mr Oslinaton submitted on behalf of the

applicant that the word "services" is given a very wide and

inclusive meaning whereas the proviso to the definition is framed

in a narrow and exclusive manner. He submitted that the proviso

does not include the "supply" of services under a contract of

service nor does it exclude the "supplv" of the "performance of work" under a contract of service. It is expressly limited to .an exclusion directed to riuhts or benefits being "the performance of work" under a contract of service.

.

This, it xas submitted. is a relevant limitation because of the

definition of "supply" in 3 . 4 . which in relation to "services"

means "provide, grant or confer" which, because of that

definition, becomes a word of wider meaning than the word "being"

which the draftsman chose to use in the proviso.

.?

Mr Oslington further submitted that the draftsman had chosen to exclude only the rights and benefits being the performance of work under a contract of service. He had chosen not to exclude any other riqhts, benefits. privileges or facilities that are or are to be provided, granted or conferred under or in relation to

a contract of service and the inclusive definition of service

expressly includes such rights, etcetera in the definition. Nor

has the draftsman chosen to exclude riahts or beneflts m

rplation to the performance of work under a contract of service.

Mr Oslington further submitted that rights, henefits and

privileges provided, granted or conferred under a contract of

service or in relation to the performance of work under a

contract of service can include:

(1) The riqht, benefit or privilege of having a free

selection in the class of persons to perform that work.

for example with reference to race, age, sex, union

members, non-union members, members of a particular union conforming with relevant legislation.

(ii)The right, benefit and privilege of accepting an offer

by a person to enter into a contract of servlce. Such a

right. benefit or privilege is clearly a right, benefit

or privilege granted or conferred in trade or commerce

and thus falls clearly within the first part of the

definition of "services".

n

It is noted that such a ricrht appears to have been rejected by Mr

Justice Northrop in Adamson v The West Perth Football Club

reported at 27 ALR 475 at 505. 506. But is was pointed out by Mr

Oslington that His Honour had given no reasons for that

conclusion and that His Honour's rejection seems to be contrary

to a later decision of the Full Court of this Court in Queensland

Aqsresates Ftv Limited and Brian White v The Trade Practices

Commission (1981) 38 ALR 217. It is noted that that Full Court

made no reference to Adamson's case.

Clearly. there are serious questions to be tried. The court is

of the view that it should not at this stage express any

concluded view in respect of those questions.

Principles which courts should consider on an application to

summarily stay or dismiss an action are clear.

.\S Barwick CJ said in General Steel Industries Incorporated v The

Commissioner for Railwavs (New South Wales) (1964) 112 CLR 125 at

128-139,

13.

The plaintiff rightly points out that the jurisdiction

summarily to terminate an action is to be sparingly employed

and is not to be used except in a clear case where the Court

is satisfied that it has the requisite material and the

necessary assistance from the parties to reach a definite and

certain conclusion. I have examined the case law on the

subject. to some of which I was referred in aruument and to

xhich I append a list of references. There is no need for me

to discuss in any detail the various decisions. some of which

were given in cases in which the inherent jurisdiction of a

court was invoked and others in cases in which counterpart

rules to Order 2 6 . r 18. were the suggested source of

authority to deal summarily with the claim in question. It

is sufficient for me to say that these cases uniformly adhere

to the view that the plaintiff ought not to be denied access

to the customary tribunal which deals with actions of the

kind he brings, unless his lack of a cause of action - if

that be the ground on which the court is invited. as in this

case, to exercise its powers of summary dismissal - is

clearly demonstrated. The test to be applied has been

-Jariously expressed: "so obviously untenable that it cannot

possibly succeed": "manifestly groundless": "so manifestly

faulty that it do'es not admit of argument": "discloses a case

which the Court is satisfied cannot succeed": "under no

possibility can there be a good cause of action": "be

manifest that to allow them" (the pleadings) "to stand would

lnvolve useless expense".

His Honour the Chief Justice went on:

At times the test has been put as high as saying that the

case must be so plain and obvious that the court call say at

once that the statement of claim. even if proved. cannot

succeed: or "so manifest on the view of the pleadings, merely

reading through them. that it is a case that does not admlt

of reasonable argument": "so to speak apparent at a glance".

I am of the opinion that it cannot be said that Mr Rothman's

argument is so plain and obvious that the court can say at once

that the statement of claim, even if proved, cannot succeed. As

I have stated above there are in my view serious questions to be

tried. Accordingly I reject Mr Rothman's application.

I , 14.

This then leaves the application for interim relief against the first-named respondent only. Mr Rothman when opposing the making of such an order was challenued as to hls client’s interest. He

puts as to that interest. as I understand it, that the making of

such an order for interim relief would adversely affect the

BWIU

and its members. particularly those members employed at the

relevant slte.

There is no evidence before the Court which supports this

suggestion.	Nor	can	the	Court,	in	my	view,	infer	such	a
suggestion.

As to the interim relief, in accordance with the well-known

prlnciples applicable on such an application. I am satisfied that

there is a serious question to be tried and also that. on the

evidence, the balance of convenience is such the orders should be	.
made.

Mr Oslinston on behalf of the applicant has given the usual

undertakings as to damages. Accordingly ---

MR OSLINGTON: Before your Honour makes orders, there is a - I do

not think it	is-so much a problem - Mr Driver now
tells me he	has instructions to act for a company

called Murlar Pty Limited which in fact. as I

understand it. is a company associated with

Cadophone but was in fact the employer.

HIS HONOUR:	Murlar being the named company?
MR OSLINGTON:	Yes. your Honour.
HIS HONOUR:	The actual employer?

15.

M R OSLINGTON: Yes. your Honour. So I simply seek to substitute

the named Murlar for Cadophone: and perhaps my

learned friend might be kind enough to give the

proper spelling for the purpose of the record.

HIS HONOUR: Would you, Mr Driver?

M R	DRIVER:	M-u-r-l-a-r.	Murlar Pty Limited. in lieu of
Cadophone.

HIS HONOUR: You are indicating that at ll relevant times that

company was the actual employer of the applicant?

,7

MR DRIVER:

Yes. your Honour and we would be seeking to have

that name substituted for the first respondent.

Cadophone.

HIS HONOUR:

As a substitute?

MR OSLINGTON:

Yes. your Honour.

M R DRIVER: Yes -

MA OSLINGTON: I do not think it affects any of your Honour's

orders or anything.

HIS HONOUR: Yes, well. I am prepared to make - have you any

objection to that, Mr Rothman?

M R ROTHMAN: No. your Honour.

HIS HONOUR: I was just wondering whether I should order that

that	company be served or do you not required
that?

MR OSLINGTON:	Mr learned friend indicates he has instructions	CO
appear. provided the name was changed.
MR DRIVER:	Yes.

HIS HONOUR: The first named respondent. as appearing in the

pleadings, that is Cadophone Pty Limited trading

as Alpine Erections ---

M R OSLINGTON: No. your Honour.

HIS HONOUR:	That is to be deleted.
MR OSLINGTON:	Yes, pour Honour.
HIS HONOUR:	And the name Murlar Pty Limited substituted.

M R OSLINGTON: Thank you, your Honour.

16.

HIS HONOUR:	It may require - this judgment is treated as an ex tempore judgment - in other words that it is typed up in accordance with the practice by the Court
Reporting Branch for correction by myself in the
usual way. It may mean that I might make
necessary adjustment to what I have said about
employment. I mean it may not be straight
3ubstitution. I think it probably is though.

M R OSLINGTON: Mr Roberts had wage slips but they had no

indication of the employer and apparently it is	an
associated company.

HIS HONOUR:

I had just mentioned that the usual undertaking as

to damages had been given by the applicant through

his counsel.

Accordingly. on the usual undertakings given by the applicant, the court orders. until further order of the court.

(1) that the first-named respondent continue to

employ the applicant without imposing

conditions on such employment. that he

applicant,

(a) resign from the Australian Building

Construction Employees' and Builders

Labourers' Federation:

(b) become a member of the Builders Workers' Industrial Union of Australia:

( r ' surrender his membership with e

Australian Builders Construction

Employees' Builders and Labourers'

Federation.

( 2 ) that the first-named respondent cease making

arrangements or arriving at understandinqs to

the effect those of arrangements and

understandings referred to in paragraph A of

the prayers for relief as set out in the

statement of claim:

( 3 ) that the first-named respondent cease and

desist forthwith from putting into effect or acting upon arrangements or understandings

such as that referred to in paragraph A of the

prayers for relief as set out	in the statement
of claim; and

,I * I . I ' l?.

( 4 ) liberty is granted to any party to apply on 4 8

hours notice to the other parties and to the

court.

MR R0"AN:	Written notice. your Honour.
HIS HONOUR:	Yes. costs? - Costs in the cause?
MR HAYLEN:	No, we seek costs on the motion.
HIS HONOUR:	Of the motion of ---
MR HAYLEN:	Mr Rothman which I think is joined in by the other
respondents.
HIS HONOUR:	What do you say, Mr Rothman?
MR "AN:	Your Honour. we would seek costs In the direction
hearinus in which no orders were sought against
us.
HIS HONOUR:	No costs are made on the directions hearinm. ever.
Normally you come along without your wig and gown
on and it is ---
MR ROTHMAN:	Your Honour, interlocutory orders were sought. We say that the costs should be costs in the cause,
pour Honour, Innocence because the parties were
here by virtue of the fact that directions hearing was sought and interlocutory orders were sought; the time of the parties.
HIS HONOUR:	There are two s e t s of costs are there not? That
is your motion to strike, in effect and the
motion. which is set out within the claim for interlocutory relief.
M R R O W :	Yes. your honour. We came to meet the motion for interlocutory relief and in the process prepare a case in which we said there was no case to answer
and since the parties were before the Court
already we suqgested that it was proper that we
hear the motion as it stood. We sap that in
respect of both matters. your honour, the costs should be costs in the cause.
HIS HONOUR:	Yes. all riuht.
MR DRIVER:	Your Honour. may I raise one point? Since I am now appearlng for the first respondent, could it be noted that we oppose the orders? I was not
appearing for them ---

18.

HIS HONOUR :	I appreciate that now.
MR DRIVER:	I am not sure if your Honour understood me to
oppose the motion on behalf of the fourth
respondent on Friday.

HIS HONOUR: Yes. I did. I think I referred to the fact that

you adopted Mr Rothman's submissions.

I certify that this and the 17

preceding pages are a true copy of the

Reasons for Extempore Judgment herein

of his Honour Mr Justice matt