Transport Workers Union of Australia (NSW Branch) v Leon Laidely Pty Ltd

[1980] FCA 34

Re: THE TRANSPORT WORKERS UNION OF AUSTRALIA (NEW SOUTH WALES BRANCH), JOHN
BARRY McLEAN, PETER OSBORNE, RONALD GANNON and RAYMOND HUTCHISON
And: LEON LAIDELY PTY. LIMITED (1980) 43 FLR 168
No. G25 of 1980
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Sweeney(2) and Deane(3) JJ.

CATCHWORDS

Trade Practices - appeal from the grant of an interlocutory injunction - secondary boycott - meaning of "purpose", "conditions of employment", and "person".

Trade Practices Act 1974, sub-ss.45D(1), (2), (3), (6).

Trade Practices - Injunction - Secondary boycott - Purpose of conduct - Whether conduct to protect conditions of employment - Whether State registered union a "person" for purpose of Trade Practices Act, s. 45D (1) - Trade Practices Act 1974 (Cth), s. 45D (1), (2), (3), (6).

HEADNOTE

Leon Laidely Pty. Ltd. ("Laidely") conducted a business of distributing petrol to service stations in New South Wales. It obtained supplies from depots owned by Amoco. Until 13th February, 1980, Amoco petroleum products had always been distributed to Sydney metropolitan area service stations by drivers employed by Amoco. On that date it came to the attention of tanker drivers employed by Amoco that Laidely was delivering Amoco petroleum products to Sydney metropolitan service stations. The appellants organized a strike of Amoco drivers to compel Amoco to cease supplying Laidely with petroleum products. On 18th February, 1980, Amoco agreed with the appellants not to supply Laidely with petroleum products.

Laidely obtained an interlocutory injunction from Lockhart J. restraining the appellants from engaging in conduct that hindered or prevented the supplying of petroleum products to Laidely.

The appellants appealed against the order of Lockhart J. on the following grounds: (a) the conduct complained of was not for the purpose of causing substantial loss or damage to Laidely; (b) the conduct was substantially related to conditions of employment; (c) the first respondent was a State registered union and therefore not a "person" for the purpose of s. 45D of the Trade Practices Act.

Held: Per Bowen C.J. and Deane J. - (1) A prima facie case had been made out that the purpose of the conduct complained of was to cause substantial loss or damage to Laidely.

(2) Lockhart J. was not in error in holding that the conduct was not substantially related to conditions of employment.

Per J. B. Sweeney J., dissenting - The purpose of the conduct was not for the purpose of causing a substantial loss or damage to the business of Laidely but rather to protect the employment of the Amoco tanker drivers.

Per curiam - There was a prima facie case that a State registered union is a "person" for the purpose of s. 45D of the Trade Practices Act.

HEARING

Sydney, 1980, March 19-20, 24. #DATE 24:3:1980

APPEAL.

Appeal from judgment and orders of Lockhart J. restraining the appellant from hindering or preventing the supply of products to the respondent.

M. H. McHugh Q.C. and F. Douglas, for the appellants.

C. S. C. Sheller Q.C. and A. McDevitt, for the respondent.

Cur. adv. vult.

Solicitors for the appellants: McClellands.

Solicitors for the respondent: Robert Hall & Co.

J. W. K. BURNSIDE

ORDER

THE COURT ORDERS THAT the appeal be dismissed with costs.

Appeal dismissed.

JUDGE1

This is an appeal from a decision of Lockhart J. given on 4 March 1980. That decision was given in proceedings brought by Leon Laidely Pty. Limited ("Leon Laidely") against the Transport Workers Union of Australia, the Transport Workers Union of Australia (New South Wales Branch), John Barry McLean, Peter Osborne, Raymond Hutchinson, Ronald Gannon and R. Pritchard (a male), seeking an order restraining the respondents from engaging in conduct that hindered or prevented the supplying of petroleum products to Leon Laidely in contravention of s.45D of the Trade Practices Act 1974 and claiming damages. The present proceedings are not proceedings for a penalty under the Act.

The application on which the decision of Lockhart J. was given was an application for an interlocutory injunction. The learned trial Judge made an order against the respondents other than the Transport Workers Union of Australia and the respondent R. Pritchard restraining them until the determination of the proceedings or further order from engaging in conduct in concert with any person that hindered or prevented the supply of petroleum products including bulk fuel by Amoco Australia Limited ("Amoco") to Leon Laidely where such conduct was 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 Leon Laidely of a purchaser and distributor of petroleum products including bulk fuel.

Counsel for the appellants, against whom the injunction had been granted, submitted that three principal questions arose on the appeal. These may be stated as follows:

1. Whether Lockhart J. was in error in holding that there was a prima facie case that the appellants had engaged in the conduct complained of for the purpose of causing a substantial loss or damage to the business of Leon Laidely;

2. Whether Lockhart J. was in error in holding that the purpose for which the appellants engaged in the conduct, namely, to protect the employment of tanker drivers employed by Amoco, was not the dominant purpose of their conduct and was therefore, by virtue of s.45D(3), outside the operation of s.45D(1); and

3. Whether a State-registered union is a "person" within the meaning of s.45D(1) of the Trade Practices Act, and whether in any event the legislature intended that orders should be made under that section against a State-registered organisation.

Before proceeding to discuss these three questions, I should say that an appeal from a single Judge of this Court lies as of right even in relation to interlocutory matters (Federal Court of Australia Act 1976, s.24(1)(a)). In so far as the decision appealed from involves the exercise of discretion by the trial Judge, this Court will not interfere unless an error, of the kind referred to in House v. The King (1936) 55 C.L.R. 499 at pp.504-505, is shown to have been made in exercising the discretion. In the present case the suggested errors are those involved in the three questions which are stated above. It was not suggested that the trial Judge had erred in the conclusion that the balance of convenience was in favour of granting an injunction pending the final hearing of the matter.

One further point to be noted is that this Court is asked, as was Lockhart J., to deal with an interlocutory application for an injunction in advance of the trial. In those circumstances the Court does not undertake a preliminary trial and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case. It looks to see whether the applicant for the injunction has made out a prima facie case, in the sense that if the evidence remains as it is, there is a probability that at the trial of the action, the applicant will be held entitled to relief (Beecham Group Limited v. Bristol Laboratories Pty. Limited (1968) 118 C.L.R. 618). I have already stated my views on the nature of the case which has to be made out to meet this test (see World Series Cricket Pty. Limited v. Parish (1977) 16 A.L.R. 181 at pp.185-186 and Commercial Bank of Australia Limited v. Insurance Brokers Association of Australia (1977) 16 A.L.R. 161 at p.168). I adhere to what I have previously said and will refrain from repeating it.

So far as the facts of this case are concerned, no question of credibility of witnesses is involved. The matter was decided on affidavit evidence and documents. The deponents were not cross-examined. This Court is in as good a position as the trial Judge to come to a conclusion on the questions involved. The contest on the appeal related rather to the conclusions to be drawn from the facts. Accordingly, for the purpose of these reasons, it will be sufficient to take the facts as stated in the judgment of Lockhart J., which is the subject of the appeal. I shall not recapitulate them.

I turn now to the three questions.
Question 1

As to this question, it was put that Lockhart J. was in error in holding there was a prima facie case that the appellants engaged in the conduct complained of for the "purpose" of causing substantial loss or damage to the business of Leon Laidely. It was submitted that on the evidence the only conclusion which could be drawn was that the workers were engaged in an industrial dispute with their employer Amoco. The subject matter of that dispute, it was said, was that Amoco, by supplying fuel to Leon Laidely, was allowing delivery to the Canley Vale Service Station to be taken away from the Amoco drivers. Accordingly, the workers demanded of their employer, Amoco, that it cease deliveries to Leon Laidely so that the work would remain or become the employees' work. It was submitted that Leon Laidely was a condition but not a cause in any relevant sense of the dispute. The employees sought to put pressure on their employer, Amoco, by strike action to cease deliveries to Leon Laidely. No doubt the effect of the appellants' conduct would be to cause damage to Leon Laidely's business but it was submitted that it was not the purpose of that conduct.

Three of the respondents, Messrs. Gannon, McLean and Osborne, each swore in their affidavits that the "sole purpose of the conduct of which complaint is made is to protect the employment of workers of Amoco who are members of the Transport Workers Union". They were not cross-examined at the interlocutory stage. It may well be that they will be cross-examined at the trial (see Ashburton Oil No Liability & Ors. v. Alpha Minerals No Liability (1971) 123 C.L.R. 614 at p.642). The trial Judge relied on other evidence to draw an inference that the respondents did have the purpose of causing substantial loss or damage to Leon Laidely.

While it is understandable that the ultimate purpose of the respondents, in taking the action which they did, was to protect the employment, the other evidence would support an inference that their means of achieving their object and, therefore, their immediate purpose, was to cause Amoco to cease supply to Leon Laidely. When Amoco did cease supply, the men returned to work. It was common ground that the respondents would have appreciated that their action in causing Amoco to cease supply to Leon Laidely would cause substantial loss or damage to Leon Laidely. However, it is pointed out that the purpose referred to in s.45D(1) is the subjective purpose of those, who are engaging in the conduct. It remains, therefore, to consider whether the purpose of causing loss or damage could be inferred to be one of their purposes. Conduct may fall within s.45D(1) if it is one of the purposes, even if it is not the dominant purpose, of persons acting in concert (s.45D(2)). The respondents could have called out the drivers of Leon Laidely who were Transport Workers Union members. They chose to call out the Amoco drivers until Amoco ceased the supply to Leon Laidely. There was no evidence that they had any malice towards Leon Laidely. But their purpose of causing cessation of supply must, if carried out, immediately cause the loss or damage in question.

On the evidence it appears to me that this raises a serious question to be tried. It is the kind of question best determined at the trial when the whole of the evidence is in. I am not persuaded that Lockhart J. was in error in holding that Leon Laidely had made out a prima facie case, in the relevant sense, that the respondents had in these circumstances a purpose, amongst others, of causing substantial loss or damage to Leon Laidely inherent in their purpose of causing cessation of supply to him by Amoco so that he would cease supply to the Canley Vale Service Station. This does not mean that I have formed the view that Leon Laidely will necessarily succeed at the hearing on this aspect of the matter. It means simply that I think Lockhart J. was correct in holding, on the whole of the evidence for the purpose of an interlocutory application, that a prima facie case in the relevant sense had been established by Leon Laidely. I consider I would have arrived at the same conclusion.
Question 2

As to question 2, this raises the question whether the facts bring the respondents within the protection afforded to employees by s.45D(3). The principal difficulty in relation to this section lies in the construction which is to be given to the words "conditions of employment" which are used in it. The question is whether these words relate to the conditions which apply in the relationship between the employer and the employee or whether they are wide enough to extend to matters outside that employment such as a threat arising from conduct of a third party which might result in the employment being lost. While I am provisionally of the view that the circumstances revealed by the evidence do not bring the case within the terms "conditions of employment", I regard this on the authorities as a difficult question of law. The situation is that I am not persuaded that the prima facie case established by Leon Laidely in relation to the first question is destroyed by the operation of s.45D(3). In other words, this is a matter to be decided at the trial and so far as Leon Laidely is concerned at this stage, it has established a prima facie case in the relevant sense.
Question 3

This question would affect the injunction in so far as it applies to the Transport Workers Union of Australia (New South Wales Branch) but it would not affect the injunction insofar as it applies to the individuals. Dealing with the position of the Union there is some divergence between the English and Australian authorities relating to trade unions, which leaves it a matter of some doubt and difficulty whether a trade union such as this respondent, registered under the Industrial Arbitration Act 1940 and governed by the Trade Union Act 1881, has legal personality or is to be regarded as a "body corporate" for the purposes of the Acts Interpretation Act 1901 or as a "person" for the purposes of s.45D(1) of the Trade Practices Act 1976. This again appears to me to be a serious question to be tried in the light of all the facts as they exist after the full trial of the matter and not a matter to be decided definitively at this interlocutory stage. My own view is such that I do not consider that, even as regards the Union, Leon Laidely has failed in making out a prima facie case in the relevant sense.

In the light of my conclusions in relation to these three questions which have been raised, it appears to me that a case has not been made out for interfering with the order made by the trial Judge. Having found a prima facie case the trial Judge, as I have mentioned, went on to hold that the balance of convenience was in favour of granting an injunction pending the hearing. Accordingly, it appears to me that his Honour was not in error in the course he took.

However, the matters are of considerable difficulty and importance and it appears to me that an early trial of the proceeding is certainly to be desired. As has been mentioned to the parties at the close of the hearing of the appeal, the Court would be able to give an early hearing, subject to the ability of the parties to be ready for it, in the latter half of April next.

In closing, I wish to add that the questions arising in this case relate to a wide-ranging dispute regarding the carriage of petrol by members of the Transport Workers Union of Australia (New South Wales Branch) and this dispute has consequences affecting the public, but neither the trial Judge nor this Court is required or permitted to canvass the general issues involved or the merits except in so far as they relate to the applicability of s.45D.

I would propose that the present appeal be dismissed with costs.

JUDGE2

I regret that it has not been possible to reduce my reasons to writing or to prepare them as fully as I would have wished. I have had the opportunity of discussing the notes for the oral judgment just delivered by his Honour the Chief Judge, and I express with respect my agreement with his description of the proceedings and of the application heard by Mr. Justice Lockhart and of the questions which arose.

I agree also with respect with the views expressed by His Honour as to the law affecting both the exercise of the trial judge's discretion and the duty of this court.

Turning then to other matters, the brief facts in this case are that Amoco conducts various operations, sells petrol in bulk from its depot at Banksmeadow, and at least from a depot at Port Kembla as well. The applicant, Leon Laidely Pty. Limited, purchased petroleum products from both terminals - the bulk from Banksmeadow, but very substantial quantities from Port Kembla.

Prior to 13 February 1980 the work of distributing petrol from Banksmeadow to service stations within the metropolitan area had always been performed by drivers employed by Amoco. The applicant, in addition to a number of its own tankers and a truck, had a large storage depot at Leppington, and depots in other areas including Dubbo. It supplies some 400 customers in New South Wales, some from its depot at Leppington, and also conveys petrol to its other depots for distribution from them.

On 13 February 1980 an Amoco driver, not known or not identified in these proceedings, observed a driver employed by the applicant delivering fuel to a service station at Canley Vale. The Amoco driver approached the other driver and said: "Did that fuel come out of the depot? If it did you will hear all about it, we'll soon stop that." This was reported to Mr. Laidely on 14 February.

Some time that day he telephoned Mr. Osborne, a delegate of the union at the Banksmeadow terminal, and gave him some facts concerning his interest in the site at Canley Vale - that he was delivering petrol there, from his depot at Leppington, that Amoco either had assisted him or had agreed to assist him in painting the service station to operate under the Amoco banner. Mr. Osborne thanked him for the information.

On 15 February 1980 a stop work meeting was held about 7.00 a.m. at Amoco's Banksmeadow terminal. The manager was informed of the meeting. About 9.40 a.m. a further conversation took place between the manager, Mr. Buck and Mr. Osborne, a union delegate. Mr. Osborne said, "The stop work meeting was due to the action of Leon Laidely who was seen delivering products to an ex BP site at Canley Vale which is considered to be in the metropolitan area; the TWU organiser will not be available until Monday."

His Honour records that Osborne also then said: "And it is suggested that the company cease loading Leon Laidely's vehicles until discussions are held with the organiser." However, Osborne in turn denied this, and swore an affidavit accordingly.

There was then an affidavit by Buck that those words were used, and an affidavit by Osborne denying them. No reason is suggested for preferring Buck's account to Osborne's account and indeed, one finds that on many occasions in his Honour's judgment he accepted Osborne's account of conversations and relied on them. In those circumstances I think his Honour was in error in accepting the account as he did, there being no question of credibility, no cross-examination and neither account to my mind being more probable than the other.

Later the same day at a subsequent meeting Osborne said: "We are now in dispute with the Company and we will meet again at 2.00 p.m. on Monday with our organiser to discuss the matter." At a conversation with Buck that day Osborne said that the men were worried about Laidely delivering fuel to service stations because of concern about the continuity of employment. Mr. Buck then said: "There is nothing to stop him delivering to any of our sites such as Canterbury", which appears to have been - if anything - a widening of the dispute. Osborne then said: "That would not be any good to us because he is taking work off us; we do not want to lose any more work than we already have."

At some stage on the same day Osborne telephoned a number of distributors including Leon Laidely Pty. Limited and informed them that the men had gone on strike, or words to that effect. This he said was done to avoid distributors sending drivers to Amoco when it appeared there would be no petrol available. During this conversation no demands were made of Laidely nor indeed was it suggested they were made of any other distributor.

Laidely suggested a conference. One was held on 18 February. At that conference there were discussions concerning Amoco's attitude about the repainting of the site at Canley Vale. Present at the conference were Mr. Laidely and a Mr. Kevin Hughes, secretary of the Australian Petroleum Agents and Distributors Association, Mr. Osborne, Mr. Hutchison and Mr. McLean, an organiser of the union.

Mr. Hughes at some point, which is not very clear, made a proposal which seems to have amounted to an application for exemption from the effects of the strike. This was put to a meeting of the men and subsequently Mr. McLean advised Mr. Laidely and probably Buck that the men would not accept the proposal. He discussed communications which had taken place between other oil companies and their employees when faced with possible like situations, discussions with other companies and distributors in like circumstances where agreement had been reached - in one case for the distributor to use a truck, in others the position was not clear.

The strike then continued, and later that day Mr. Buck informed the trade union delegates and Mr. McLean that the company would not supply Mr. Laidely's company with petrol. Mr. Buck was later advised that the men would return to work, and they did so subsequently.

It is to be noted that at no time was any demand made on Mr. Laidely or his company. It is also important to note that during this time no attempt was made to interrupt the applicant obtaining supplies of petrol at Port Kembla. It appears the applicant obtained the bulk of supplies from Banksmeadow, but still quite significant quantities from Port Kembla. Moreover, during this time the applicant had in his employ a number of drivers, all members of the respondent union, and no attempt to involve them was even made or threatened.

I emphasise of course that what was before his Honour was an interlocutory application and the evidence was necessarily somewhat scanty. I would emphasise that just as his Honour's findings were not final findings if it becomes material mine are not either but are based only on the material now before the court.

Looking at the whole of the material I think that what was established prima facie was a dispute with Amoco which led to the strike, concerned with the delivery to one station within the metropolitan area, but by 15 February, prior to any negotiations with Mr. Laidely, this had been widened by Mr. Buck's statement into a general question of the company's entitlement to use contractors to deliver anywhere in the metropolitan area. The proper inference in my view is that the purpose of the conduct was not for the purpose of causing a substantial loss or damage to the business of the respondent but rather the purpose of the conduct was to protect the employment of the tanker drivers.

In my view that is substantially related, among other things, to the working conditions of the Amoco establishment and Hutchison and other persons employed by Amoco as drivers. The question arises under Section 45D sub-section 3 whether the protection of the working conditions in reserving an area of work was substantially related to their working conditions. I think when the effect was to reduce the quantum of work available to a given group of employees, that is substantially related to hours of work, to conditions of employment such as working of shift work, overtime, times when penalty rates would be incurred. Reference was made to the definition of industrial matters in the Commonwealth Conciliation and Arbitration Act, but that I think is not of assistance. Section 45D applies not only to organisations functioning under that Act, but to trade unions and indeed, organisations of employees registered under State Acts, or perhaps not registered at all. Under the various State Acts there are very material differences in the definitions of industrial matters. I therefore find no assistance in the definition contained in the Commonwealth Act.

It follows from what I have said that I think his Honour was in error in not inferring that the dominant purpose for which the conduct was engaged in was one falling within Section 45D sub-section 3(a). His Honour appears also to have relied on the judgment of Mr. Justice Evatt in McKernan v. Fraser in 46 Commonwealth Law Reports 344 at 403 and 4, and the judgment of this court in Tillmann's case in 1979 Australian Trade Practice Reports, page 18,489. I do not think any principle of law on this issue was being expounded in either of those cases. In any event they were each cases where demands were made, and it was a question whether there was a corresponding intention to cause injury to the person on whom the demand was made. That is not in my view the case here.

In addition, one may say that so far as they purport to be questions of fact I think they well may depend on the facts of a particular case and in my view in today's climate, suspect even as economic or industrial or sociological findings.

I turn then to the third ground of appeal. On it difficult questions of law do arise as to what might be called a state registered union and it was common ground here that the union against which the order was made was registered under the Trade Union Act and then the Industrial Arbitration Act. A State registered union is an entity for some purposes and although I think there is no case where a court has gone as far as finding it a corporation or indeed a corporate body, I do not think that concludes the matter. There is the question of sub-section 6 of Section 45D and other parts of the Section to be considered.

I think his Honour was correct in finding a prima facie case within the meaning of Beecham Group Limited v.Bristol Laboratories (1968) 118 C.L.R. 618, on the question of law here arising.

I would add that I raised during the hearings questions as to the form of the injunction but since that matter was not raised in the notice of appeal I have not given further consideration to it.

In my view the appeal should be allowed having regard to the proper answer to questions 1 and 2 as set out in the oral judgment delivered by his Honour the Chief Judge. I agree that it is a matter which should be finally determined with all possible speed, and I emphasise again that the final determination to these questions may or may not produce the same result as findings whether there was or was not a prima facie case. In my view the appeal should be allowed with costs.

JUDGE3

This is an appeal from a decision of Lockhart J. granting an interim injunction, pursuant to s.80(2) of the Trade Practices Act 1974 ("the Act"), restraining the appellants, until the determination of the proceedings 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 Amoco Australia Limited ("Amoco") to the present respondent where such conduct is engaged in for the purpose and would have or be likely to have the effect of causing substantial damage to the business of the respondent as a purchaser and distributor of petroleum products, including bulk fuel. The appellants have not challenged the finding of Lockhart J. that the balance of convenience clearly favoured the grant of the interim injunction. That being so, the only question involved in the appeal is whether his Honour was in error in finding that the respondent had made out a prima facie case against the appellants for the grant of such relief.

The general approach to be adopted by an Australian court in determining whether a prima facie case has been made out in an application for an interim injunction where, as in the present case, both sides have gone into evidence, appears from the judgment of the High Court (Kitto, Taylor, Menzies and Owen JJ.) in Beecham Group Limited v. Bristol Laboratories Pty. Limited (1968) 118 C.L.R. 618. Their Honours said (ibid at pp.622-3):

". . . the Court does not undertake a preliminary trial, and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case. James L.J. explained the general attitude of the Court when he said in Plimpton v. Spiller (1876) 4 Ch. D 286, at p. 289, in relation to a patent action where there was no outstanding issue as to validity:

". . . the Court, not forming an opinion very strongly either one way or the other whether there is an infringement or not, but considering it as a fairly open question to be determined at the hearing, and not to be prejudiced by any observation in the first instance, reserves the question of infringement as one which will have to be tried at the hearing, and which it will then have to consider."

And he proceeded to discuss what was the best mode of keeping things in statu quo:

". . . for that" - he said - "is what the Court has to do - to keep things in statu quo - until the final decision of the question.""

Their Honours went on to add some qualifications in respect of a case where other considerations make it unjust to grant an injunction. There has, however, been no suggestion that the present is such a case. Indeed, as has been mentioned, no attack has been made on Lockhart J's finding that, in the present case, the balance of convenience plainly favoured the grant of an interim injunction.

As appears from the above extract from the judgment in Beecham's Case (supra), the Court is not, on an application for an interim injunction, concerned to "undertake a preliminary trial" or to make "a forecast as to the ultimate result of the case". In this regard, I am of the view that, when read in context, the reference to "a probability" of success in an earlier part of their Honours' judgment was not intended, in conflict with the passage cited above, to indicate that a court dealing with an application for interim relief is required to make a forecast of the applicant's odds of ultimate success to determine whether, to use the phrase used by Lord Hodson in Koufos v. Czarnikow Ltd. (1969) 1 A.C. 350 at p. 410, the applicant has "an odds-on chance" of success. The reference to "a probability" is to a real or significant chance in the sense that, in the words of James L.J. which their Honours quoted with approval, the relevant question is "a fairly open question to be determined at the hearing" (see, generally, per Bowen C.J., Commercial Bank of Australia Ltd. v. Insurance Broker's Association of Australia (1977) 16 A.L.R. at 168; per Brennan J., Victorian Egg Marketing Board v. Parkwood Eggs Pty. Ltd. (1978) 33 F.L.R. 294 at p. 312 and, as to the meaning of the word "probable", Eggleston, Evidence, Proof and Probability, 1978, p. 10ff). So understood, there would appear to be little practical difference between their Honours' reference to "a probability" of success which has been repeated in subsequent cases in the High Court (see, in particular, Ashburton Oil N.L. and Ors. v. Alpha Minerals N.L. (1971) 123 C.L.R. 614 at pp. 641-2) and the test subsequently ennunciated in the speech of Lord Diplock in the House of Lords in American Cyanamid Co. v. Ethicon Ltd. (1975) A.C. 396 (but cf. per Mason J., Administrative and Clerical Officers' Association v. The Commonwealth (1979) 53 A.L.J.R. 588 at p. 591)).

It was submitted on behalf of the appellants that Lockhart J. was in error in finding a prima facie case that the appellants had acted with the purpose specified in s.45D(1)(a) of the Act and that, in any event, the evidence before his Honour plainly established that the conduct of which complaint was made came within the exempting provisions of s.45D(3). A further ground raised on behalf of the appellant Union is that proceedings for injunctive relief or damages in respect of conduct in contravention of s.45D do not lie against it for the reason that it is not a "person" for the purposes of the section and for the further reason that, even if it be a "person" for the purposes of the section, it is not a "body corporate" for the purposes of s.45D(6). I shall consider these submissions in the order in which I have mentioned them.
The Appellants' Purpose

For present purposes, s.45D(1) of the Act proscribes conduct in concert of the specified description when the 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 relevant corporation, that is to say, in the present case, the business of the respondent.

Many of the objective facts relevant to a determination of the question whether the appellants acted with the purpose specified in s.45D(1) appear with tolerable clarity from the evidence. It is, however, plain that that evidence is incomplete. There was, for example, no detailed evidence as to what was said at the meeting on 15 February at which the Banksmeadow Terminal drivers made the critical decision to go on strike after Amoco had refused their request to cease loading the respondent's vehicles. Three of the four personal appellants swore affidavits in which they denied that they had engaged in conduct for the purpose of causing loss or damage to the business of any corporation and asserted that the sole purpose of the conduct of which complaint is made was to protect the employment of the employees of Amoco who were members of the appellant Union. That evidence is, however, equivocal. It is apparent that the threat which the deponents saw to the employment of the employees of Amoco arose from the respondent company's delivery of fuel to the Canley Vale service station and it would seem reasonable to infer that the perceived means of achieving the objective of removing the threat was to bring about a refusal of supply of fuel to the respondent's business as a distributor of bulk fuel. The evidence in question relates more to motive than immediate purpose and raises difficult questions as to the precise meaning to be given to "purpose" in s.45D(1) in the context of s.45D(2) which provides that a person "shall be deemed to" engage in conduct for a purpose mentioned in that sub-section "if he engages in that conduct for purposes that include that purpose".

Lockhart J. carefully examined the evidence before him and made a tentative finding that the appellants' purpose was to cause substantial loss or damage to the respondent's business. It was not strictly necessary for his Honour to have gone so far as to make that positive, albeit tentative, finding to enable him to determine whether he should grant an interim injunction. Nor is it necessary for this Court, for the purposes of the present appeal, to examine whether his Honour was correct in making it. It suffices if, on the evidence, there was a prima facie case, in the sense that I have indicated, that the conduct was engaged in for the relevant purpose. In my view there was such a prima facie case.

The question whether the conduct complained of was engaged in by the appellants with the purpose specified in s.45D(1) will ultimately fall to be determined by reference to precise findings of fact made in the context of the final evidence. The answer to the question - and the determination of the legal issues involved in answering it - should await the hearing of the proceedings when the evidence in final form is available. The evidence before Lockhart J. makes it clear however that that question is a serious one which must properly be regarded as open. The respondent has made a prima facie case on it in the relevant sense.
Section 45D(3)

Section 45D(3) provides that, in the circumstances specified in the sub-section, a person shall not be taken to contravene, or to be involved in a contravention of, s.45D(1). Involved in the decision whether the provisions of s.45D(3) are applicable in the present case is the identification of the dominant purpose for which the appellant engaged in any relevant conduct and the difficult question whether that purpose was, on the proper construction of the sub-section, "substantially related to . . . conditions of employment . . . or working conditions of the drivers employed by Amoco at its Banksmeadow Terminal.

Once again it is unnecessary to attempt, at this stage, to make any positive finding as to dominant purpose or as to the relationship between the purpose so found and conditions of employment or working conditions. It suffices to say that these are, in my view, serious and open questions to be determined on the hearing of the proceedings and that the appellants have not, on the evidence before the Court, so clearly established the applicability of the exempting provisions of s.45D(3) as to destroy the prima facie case which the respondent has otherwise made out.
The Status of the Appellant Union

The appellant Union is registered as a Trade Union under the provisions of the N.S.W. Trade Union Act 1881. It is submitted that it is not a "person" for the purposes of s.45D(1) of the Act nor a "body corporate" for the purposes of s.45D(6). These questions fall into a somewhat different category to the other questions raised by the appeal in that they are relevant to the existence of jurisdiction to make the order which Lockhart J. made against the appellant Union. It is, in my view, desirable that a definite view, even if only a tentative one, be formed on them at this early stage of the proceedings.

A union registered under the provisions of the N.S.W. Trade Union Act 1881 is a separate legal entity with a legal personality of its own distinct from its members at any particular time (Williams v. Hursey (1959) 103 C.L.R. 30 at p. 63; Moore v. Doyle (1969) 15 F.L.R. 59 at p. 116). Such a union is capable of conspiring, and being sued for conspiracy, with its own officers and members (The Brisbane Shipwrights' Provident Union & Ors. v. Heggie (1906) 3 C.L.R. 686; Egan v. Barrier Branch of Amalgamated Miners' Association (1917) 17 S.R. (N.S.W.) 243; Williams v. Hursey, supra, at p. 129). As at present advised, I agree with Lockhart J. that such a union is a person for the purposes of s.45D(1) and a "body corporate" for the purposes of s.45D(6).

In so far as the question whether the appellant Union is a "body corporate" for the purposes of s.45D(6) of the Act is concerned, I would stress that I see that question as being more a matter of the construction of s.45D(6) than a matter of determining the precise character of the legal personality of a union registered under the N.S.W. Trade Union Act 1881. Examination of the provisions of s.45D(6) makes it clear, in my view, that the reference to a union being a "body corporate" is intended as a reference to a union which has a separate legal personality from its members and is capable of being sued in its own name. The appellant Union is plainly such a union.
Conclusion

In the result, the appellants have failed to make good any of their grounds of attack upon the decision of Lockhart J. The appeal should be dismissed with costs.

In order to avoid the risk of misunderstanding, I would add two comments. The first is that it should be clearly understood that this Court has not been concerned either with the general merits of the actions of the appellants or whether it should ultimately be held that the appellants have acted in contravention of s.45D of the Act. This Court has been concerned only with the question whether the respondent has made out a prima facie case of contravention of the technical and difficult provisions of s.45D of the Act. The second is that the proceedings are civil proceedings for injunctive relief and damages. They are not penal proceedings which involve the possible imposition of fines or penalties.