A.M.I.E.U. & Ors v. Mudginberri Station Pty Ltd [1987] FCA 312

ON APPEAL from a single judge of the. Federal Court of Australia

JACK O'TOOLE, TREVOR SURPLICE, DICK ANNEAR and PAT ROUGHAN

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

) ) NEW SOUTH WALES DISTRICT REGISTRY } NO. VG 307 OF 1986 ) GENERAL DIVLSLON )

ON APPEAL from a single judge of the Federal Court of

JACK O'TOOLE,TREVOR SURPLICE, DICK ANNEAR and PAT ROUGHAN

CORAM: FOX, WOODWARD AND SHEPPARD JJ. DATE: 16 JUNE 1987

We have heard together with the appeal on damages, an appeal from the dismissal by Morling J. of a separate application (V.G.36 of 1986) that the permanent injunctions made under s.45D of the Trade Practices Act 1974 on 12 July 1985 should he set aside on the ground that some evidence of Mr Pendarvis was deliberately false, and perjured, or was made recklessly, not caring whether it was true or false. The decision of Morling J.

on this matter is now reported at (1986) 8 A.T.P.R. 40-709.

After the permanent injunctions were granted (12 July

1985. and certain orders made, and after the postponed damages claim was heard, but before it was determined, an application was made by the present appellants, accompanied by a statement of claim, to sel aside the injunctions, and for other orders, on the ground of the alleged fraud of Mr Pendarvis. Before Gray J., Mudginberri sought, unsuccessfully, to strike out the statement of claim and to have the application dismissed insofar as it related to the setting aside of the injunctions. The judgment of

Gray J. is reported at (1986) 8 A.T.P.R. 40-690. The application

and statement of claim were amended and came before Morling J.

After a question as to the propriety of the application being dealt with by him was disposed of by the High Court (Re

Morling; Ex p. Australasian Meat Industry Employees' Union (1986)

60 A.L.d.R. 526), he made an order on 21 July 1986 dismissing the

The notice of appeal relates essentially to the matters we have mentioned concerning the evidence of Mr Pendarvis, and

These reasons should, so far as relevant, be read with

The evidence relied upon was that in the injunction proceedings Mr Pendarvis said that a trading loss of $183,000 had been incurred by Mudginberri between 24 June and 9 July by reason of the presence of the picket line. this being the difference

between $1.77 per kilogram (the domestic value of the meat) and

$2.76 per kilogram (the export value of the meat). The evidence of Mr Pendarvis was given in reliance on a document which was

tendered (Ex.D), but with counsel's disclaimer as to its precise

Part of the allegation made is that at the time of giving the evidence referred to, Mudginberri had sold the meat to A.D.M.A. for $2.30 per kilogram in the period 3 July - 8 July, the implication being that in this respect Mr Pendarvis' evidence

had been deliberately false. We have dealt in the other appeal

with the true nature of the A.D.M.A. transaction, and also with the disposition of the meat during the balance of the period

The learned judge said this in relation to the evidence

"Pendarvis disclaimed any intention to deceive or mislead the Court when giving his evidence in the damages proceedings. I accept his disclaimer. I reject the allegation that he gave deliberately untruthful or fraudulent evidence. I think he was an honest witness whose evidence is reliable on most of the matters upon which he was questioned."

His Honour made it plain that some loss was intended, and inevitable, that he did not act on $183,000 as being accurate, and that the precise measure was by no means critical

to his decision to issue the injunction. This seems to us

This is not a case where evidence has been discovered since the hearing which goes to show that Mr Pendarvis' evidence

was deliberately false, or fraudulent. The issue was litigated

Pendarvis gave evidence of the relevant matters and was available

findings, but as directly relevant to this application, it is

We do not find any sufficient basis to differ from his

Honour's view of the credibility of Mr Pendarvis, or of the

We agree with his Honour's order that the application be

dismissed with costs, and the appeal to us should also be be

I certify that this and the three (3) preceding pages are a true copy of the Reasons for Judgment of the Court.

R.L.Whyburn & Associates as Sydney agents for Ryan Cariisle Needham Thomas

Tress Cocks & Maddox as Sydney agents for Mildren Silvester & Partners