KWEKDORM INDUSTRITS LIMITED v AUSTRALIAN BUILDING

(a) to hinder or prevent the hiring of equipment by the applicants or any of them to any persons, companies or firms oc the taking on hirre of equipment from the applicants or any of them by any persons, companies or firms, being conduct engaged in for the purpose, or having or being likely to have the effect, of causing substantial loss or damage to the businesses of the applicants or any of them or a substantial Jessening of competition in the market for the hire of equipment of a kind in the hire of which the applicants or any of them are engaged, except where such conduct is within the descriptions contained in s.45D(3) of the Trade Practices Act 1974;

(b} to induce, procure or persuade any person company or firm to discontinue any arrangement whereby that person, company or firm takes on hire equipment from the applicants or any of them, or not to enter into any = such arrangement.

4. The date of hearing of the application for injunctions

be fixed for Monday 11 April, 1983 at 10.15 a.m. in Melbourne. 5. As to that hearing of the claim for injunctions -

(a) the applicants to serve and file by 3.00 p.m. on Friday 11 March, 1982 any further affidavits upon which they seek to rely;

{b) the respondents serve and file by 3.00 p.m. on Friday 25 march, 1983 any affidavits upon which they seek to rely;

(c) the applicants serve and file by 3.00 p.m. on Thursday 31 March, 1983 any affidavits in reply.

6. These proceedings so far as they relate to the claim of damages be adjourned to a date to be fixed on the

) ) VICTORIA DISTRICT REGISTRY ) VG No. 7 of 1983 ) )

D.G. WHELAN RENTALS PTY. LTD., WRECKAIF PTY. LTD., and KWIKFORM INDUSTPIES LIMITED ~~

AUSTRALIAN BULLDING CONSTRUCTION EMPLOYEES' AND RULIDERS LAROURERS' FEDRRATION, JOHN CUMMINS, BARRY JOHN KENT, MARTIN GREANY, ROBERT HARRY DALTON

This is an applicaticn in respect of conduct alleged to contravene s. 45D of the Trade Practices Act 1974, for interlocutory injunctions against the first, second, third and fourthnamed respondents whom I shall call the four respondents. An order binding upon those four respondents made by C.A. Sweeney J. on 27 January, 1983, as amended by an

order made by Northrop J. on 3 February, 1983, was in the

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Upon the applicants undertaking to the Court to pay any party adversely affected by this order such compensation (if any) as the court thinks just, in such manner as the Court directs, the Court orders that until the hearing and determination of the application or until further order :- (i) The respondents be restrained from preventing, hindering or impeding the access of any person, firm or company to the premises of or occupied by the applicants or any of them for the purpose of or incidental to the taking on hire of equipment from the applicants or any of them, or for the purpose of or incidental to the return of such equipment to such premises at the conclusion of any such hire, where sucn preventing, hindering or impeding is done for the purpose, and has or would be likely to have the effect, of causing substantial loss or damage to the businesses of the applicants or any of them except where such conduct is within the descriptions contained in s. 45D(3) of the Trade Practices Act 1974; (ii) The respondents be restrained from preventing hindering or impeding the applicants or any of them or the servants or agents of any of them

equipment to, the premises of or occupied by the applicants or any of them for the purposes of or incidental to supplying that equipment on hire to any person, company or firm or for the purpose of or incijental to returning such equipment to such premises at the conclusion of any such hire, where such preventing hindering or imoeding is done for the purpose, and has or would he Jikely to have the effect of causing substantial loss cr damage to the businesses of the applicants or any of them except where such conduct is within the descriptions containcd in S. 45D(3) of the

The fifth respondent Robert Harry Dalton has not been served.

No interlocutory orders are sought against him in the present hearing and he was not represented. During the past four days the Court has heard oral evidence, including cross-examination, as to the existing and likely future loss or damage to the business of each of the three applicants. Counsel for the parties have referred to various parts of the 22 affidavits which have been filed in these proceedings on behalf of the applicants - of which 7 were filed on 25 January, 1983, 12 were filed last Friday (18

February, 1983) and the remaining 3 were filed on either

Monday or Tuesday of this week. There has also heen a fairly detailed examination by both counsel of the transcript of the proceedings before C.A. Sweeney J. on January 26 and 27, 1983 and before Northrop J. on 3 February, 1983. Having regard to the evidence before the Court it is desirable that the application be decided without waiting for the preparation of

The interlocutory injunctions sought in the present

The respondents and each of them be restrained pending the determination of this matter or until further order from engaging in conduct in concert

with each other or any of them or with other persons

(a) to hinder or prevent the hiring of equipment by the applicants or any of them to any persons, companies or firms or the taking on hire of equipment from the applicants or any of them by any persons, companies or firms, being conduct engaged in for the purpose, or having or being likely to have the effect, of causing substantial loss or damage to the businesses of the applicants or any of them or a substantial lessening of competition in the

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the hire of which the applicants or any of them are engaged, except where such conduct is within the descriptions contained in s.45D(3) of the Trade Practices Act 1974;

(b) to induce procure or persuade any person company or firm to discontinue any arrangement whereby that person, company or firm takes on hire equipment from the applicants or any of them, or not to enter into any such

The Court has to decide whether the applicants have shown a prima facie case against each of the respondents and if so, whether the inconvenience or injury which the applicants would be likely to suffer, if the injunctions were refused, outweighs or is outweighed by the injury which the respondents would suffer if the injunctions were granted (Beecham's case (1968) 118 C.L.R. 618 at 622-623). In deciding whether interim injunctions should be granted, pending the final determination of the claim for injunctions, the Court must also consider whether other considerations make it unjust to grant the injunctions. In this connexion I shal] refer later to the course which the parties on 3 February, 1983 agreed upon as to the future conduct of the

It is well established that in any interlocutory proceedings such as these, it is not desirable that the Court should form any concluded view as to the evidence on issues in dispute. Despite the arguments advanced by Miss Hickey, of counsel, on behalf of the four respondents, I consider that there is a prima facie case in the sense used by the Ful] Wigh Court in Beecham's case. In my opinion a strong prima facie case has been established against each of the four respondents as to each of the matters required to be shown including the fact that each of the respondents has engaged in conduct in contravention of s.45D, that the conduct has been engaged in by each for the purpose of causing substantial loss or damage to the business of each of the applicants and that the conduct has had and is likely to have the effect of causing substantial loss or damage to the

Having found that a prima facie case has been established, I have considered whether the injury which the applicants would be likely to suffer, if the injunctions were refused, outweighs any injury or inconvenience which the respondents would suffer if the injunctions were granted. Notwithstanding Miss Hickey's submissions to the contrary, relating to the possible effect of injunctions upon the employment of members of the respondent Federation and the question of safety which has been raised by the respondents,

in my opinion the evidence in its present state does nol

disclose any real injury or inconvenience which any of the four respondents would be likely to suffer if interlocutory injunctions in the form sought by the applicants are granted. On the other hand there is at present before the Court evidence as to the injury and inconvenience to each of the applicant companies which will occur if the conduct alleged against the respondents continues. In my opinion the balance of convenience is quite plainly in favour of granting the orders restraining each of the four respondents instead of withholding the grant of such relief.

For the foregoing reasons the applicants have established a case for the grant of interlocutory injunctions unless there are other considerations which make it unjust to do so. I referred earlier to a course agreed between the parties on 3 February, 1983 when the matter had been stood down by Northrop J. to enable the parties to discuss dates for the filing of affidavits and for the hearing. In the present hearing I was initially inclined to the view that the

applicants should not now be permitted to depart from that

llowever, having studied the affidavits filed on behalf of the applicants, heard the oral evidence, including cross-examination, of witnesses in respect of each of the three applicant companies and reflected upon the matter over

the last few @ays, I have come to the conclusion that,

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despite my initial inclination and the submissions to the same effect urged upon me by Miss Hickey in final address for the respondents, the proper course is to grant the present application for interim injunctions. The reasons for my reaching that conclusion and rejecting the submission based upon the parties' "agreed course" may be briefly summarized

1. ~The course agreed upon on 3 February, 1983 is one which the applicants entered into partly by reason of their fear that the proposed hearing by Northrop J. of their application for interlocutory injunctions would be delayed by proceedings proposed to be taken by the respondents in the High Court for a Writ of

• Prohibition to prevent his Honour from sitting in the matter. Mr. Merkel Q.C. on behalf of the respondents had informed Northrop J. (T. 178) that he had instructions to seek an order nisi for prohibition. Further, shortly before the discussion between the parties which led to the agreed course, he had suggested a final hearing instead of a hearing as to interlocutory relief and then said (T. 184)

with these questions that, for example, your Honour ought to hear the matter and

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agreement on that basis." In any event the course agreed upon on 3 February, 1983 permitted the applicants to apply for further interlocutory inyunctions. This is apparent from the order of Northrop Jd. of 3 February, 1983 which reserved "general liberty to apply to the Court on 24 hours notice" after Mr. Fajgenbaum (T,. 188), on behalf of the applicants, announced to his Honour the agreed course and expressly asked "that liberty to

well". Shorily before the parties had the @iscussion which led to the "agreed course", Mr.

that the applicants could apply for further interlocutory relief if the existing injunctions

proved insufficient. He said :- "A further application could be made to the Court if the current material is not sufficient, the current relief is insufficient for the applicants, ......

putting aside the question of applying for an order nisi, but we would submit the appropriate course is for directions to be given to enable this matter to be finally disposed of within a very early period of time without prejudice to the applicants' right to come back before the Court on notice in respect of any further or wider relief it seeks in the interim."

3. Evidence was aiven by Mr. Cooper, a solicitor employed by the solicitors for the applicants, as to why the applicants' affidavits were not prepared and ready to be filed on 9 February, 1983 in accordance with the time table agreed

+. it became very apparent that it would not be possible to get a lot of evidence in admissible form - being that with respect to the bans - first hand evidence from people who had spoken to officials of the Builders Labourers' Federation. There was a decided reluctance on the part of employees of the applicants to even approach these people, because of what those cmployees had already been told previously. Although some people were: prepared to talk to employees of the applicants to explain the fact that bans had been imposed, they were not prepared to swear affidavits themselves. I was told, in most cases, it was the fear of retaliation. That problem certainly made it apparent that it would be almost impossible to comply with what became the timetable from what had been discussed on the hearing of the 3rd, that the evidence would need to be in admissible form. Tt was apparent that any evidence which could be collected before that date would probably not be admissible.

eee that preparation continued throughout that time, despite those problems and despite the knowledge of the applicants that that may be the case, they continued to prepare material on the assumption that we had to get the best material available. At the end of the day, and I use that metaphorically, the material was largely hearsay."

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"My assessment was that it would be necessary to have three junior barristers working under the supervision of Mr. Fajgenbaum settling material and that jit would be necessary to have at least three solicitors working under my supervision telephoning witnesses, arranging to see witnesses, taking statements and preparing draft affidavits and that those people would need to be involved full time from Friday until the following Wednesday to have the material ready in admissible form.

Why were they not so engaged, are you able to tell his Honour? A number of reasons, firstly the commitment of manpower and cost was not one that the applicants wished to incur, having regard to the possibility that there may be a resolution of the matter before the 9th. But furthermore, developments from Friday the 4th took up so much time and in many ways changed the emphasis of the dispute that it would not have been possible to have the material ready by Wednesday no matter how many people, sorry - it would not have been nossible to have the evidence ready by Wednesday without at Jeast that many people involved and,-I estimate more."

Although some criticism can be made of the applicants' conduct in their preparation of the hearing it is now clear that the final hearing will not proceed for six weeks. The applicants have stated that they require at least two weeks in which to prepare for the final hearing and Miss Hickey, on behalf of the respondents, has

weeks after the service of such affidavits upon them and it was common ground that further time must be allowed for possible affidavits in reply. With Easter intervening the parties agreed that the hearing could not start before 7 April, 1983.

There is evidence of an extension of the conduct since the matter was before Northrop J. on 3 February, 1983 - although on 3 February, 1983 the applicants already had some knowledae of the existence of a "national ban". For example, as to Perth, an affidavit by Raymond Martin Kelsey, the managing director of the applicant Wreckair

"On 7th February 1983 I spoke by telephone to Wreckair's Manager in Western Australia, Don Loxton and he told me in substance: "Multiplex Pty. Ltd. have told me that their job at the

Palace Hotel in St. George's Terrace, Perth has been declared black by the BLF. I went to the site and spoke to Ron Kinney who is the BLF Shop Steward on the site." Kinney told me to speak to Mark Binstead who is a BLF organiser based in Perth. Binstead told me 'it was a BLF federal executive decision to ban Wreckair because they are attacking the BLF in the Fastern States. You call your people off and the bans will be lifteda'"."

As to Brisbane, an affidavit by John G.B. Tate, the manager in N.S.W. for Kwikstage - a division

"On 7th February 1983, I received a telephone call from one Mike Avery, an employce of Fricker Brothers Constructions Pty. Ltd. Mr. Avery works un the Brisbane office of that Company. Mr. Avery told me in substance :

"The BLF have blacked all Kwikstage eguipment on site. We are not allowed to receive any more, despatch any more, dismantle the scaffold, move scaffolding

boards or do anything. The union organiser concerned was one David Stein"."

As to the Loy Yang construction site Michael Gerard Conroy, the Victorian Manager of Wreckair Pty. Ltd. said in an affidavit that since 9 February, 1983 "equipment ... hired by three . separate customers has been returned to the

There was also oral evidence by John G.W. Urbahns, "

the managing director of the applicant Kwikform Industries Limited, that on Monday last, 21 February, 1983, he had a conversation outside the Court with the respondent John

"J... I asked him was there any truth in the rumour I had heard that Norm Gallagher was suing for peace, or asking for a peace meeting with the other unions. He laughed and said : quite to the contrary. ... Norm was going to make things twice as tough. The words he used were: escalating the dispute."

Asked in re-examination whether he treated Mr. Cummins' statement as being said in jocujar fashion, Mr. Urbahns said: No ..- I sincerely believe he is going to do what he says he is going to do". There is evidence that Mr. Gallagher is the General Secretary of the respondent Federation and also

As to whether the conduct is likely to continue, and its purpose, an affidavit by Pesmond G. Whelan stated that the respondents Cummins and Kent visited him on 19 January, 1983 and that Mr. Cummins said : "Your company should agree to our demands, or we will put you under". In this connexion an affidavit by Mr. Kelsey stated the the respondent Dalton, an organizer with the respondent Federation, said to him on 21 January, 1983, "Once the BLF gets its hack up, nothing stands in its way. The BLF will send Wreckair broke along with Repco & Whelans". In this

" connexion the following paragraph from an affidavit by Mr.

"7. As a result of the BLF action against Kwik Access, I invited BLF officers to discuss the matter with me, and a meeting took place on 18th October 1982. The Victorian (and General) Secretary of the BLF, Mr. Norman Gallagher, was

Norman Wallace. I owas present with others representing the company. In the course of the meeting, Gallagher said in substance : "We are talking to the Plumbers' Union. The use of scissor lifts by sprinkler fitters is exempted from the bans. Otherwise, the manning of scissor lifts hy Builders" Labourers is non-negotiable, and, while it might take 18 months to resolve like the Omega dispute, you are now

Gallagher also said in substance : "No Kwik Access scissor lifts will be permitted on building sites unless Kwik Access supplies a builders' labourer with each unit. Unless youycomply with this demand,

As to the foregoing affidavits there was no cross-examination of any of the deponents and the cross-examination of Mr. Urbahns did not suggest that the words allegedly spoken by Mr. Cummins had not been used. No

evidentiary material has been placed before the Court by the

respondents nor was any adjournment sought to enable them to do so. In saying that I am not criticising the respondents in any way or drawing any inferences from that fact. However the Court has to decide the present application ~ as it does any application for interlocutory injunctions - on the evidence before it and without the hearing becoming a

Accordingly there are no considerations making it unjust to grant the two injunctions sought. As to the form of the second injunction sought, I have rejected a submission by Miss Hickey that words should he inserted limiting the injunction so that it only restrains such conduct as has been engaged in for the purpose of causing substantial loss or damage to the businesses of the applicants. Miss Hickey submitted that the Court has no power to grant the interlocutory injunction sought without words limiting it by reference to conduct engaged in for that purpose. Alternatively it was argued that in all the circumstances the

In my opinion the Court has power and it is desirable that it should exercise it having regard to the material before it in this case. In this connexion I adopt with respect as being equally applicable to the matter presently before the Court, the following statement by

Brennan J. dealing with s. 46 of the Trade Practices Act

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1974, in Victorian Egq Marketing Board v Parkwood Eqqs Pty.

"It is, of course, something of a novelty to determine the character of conduct by reference to the purpose held by the person who engages in the conduct, and the enforcement of an injunction against conduct of the proscribed kind is inevitably attended with difficulty if a change of purpose is asserted. The moulding of an injunction jin such a case may conccivably be in one of three forms: an absolute prohibition against engaging in the conduct, a prohibition qualified so as to apply only if the proscribed purpose is held by the party enjoined, or a prohibition qualified so as to apply unless the party enjoined proves a change of purpose to one that 1s innocent. The moulding of the injunction is not made easier when it is rememhercd that a usual effect of competition is damage to a competitor, and a proscribed purpose is that of substantially damaging a competitor.

In the present case, where a strong prima facie case of a proscribed purpose was shown, the most convenient course is to mould the injunction in absolute terms uncil the difficult question of an appropriate form can be resolved if need be at the final hearing, leaving it to the enjoined party to seek a dissolution of the injunction or a modification of it on proof that it has changed its purpose and that it proposes to engage in conduct which, though falling within the injunction, wil) henceforth be lawful. ... and no substantial injustice was shown,to be likely to result to the Board by granting an injunction in an unqualified form, particularly when the injunction was intended to be brought back for further and more leisurely examination before the primary judge."

"Counsel for the Board argued that such an injunction precluded the Board from engaging in legitimate competition with Parkwood, and that it was beyond the jurisdiction of the court to grant an interim injunction that was not so limited that it only precluded conduct which would be in contravention of the Act. It was said that the interim injunction should be limited so that the

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conduct descrihed in the order would only be prohibited if it were engaged in for one of the purposes set out in paras fa) to (c) of s. 46{1)}.

In World Series Cricket Pty. Ltd. v Parish (1977) 16 A.L.R. 181 at 191-2; (1977) 2 T.P.C. 303 at 313-4, 1 said :-

",.- it ais often undesirable to frame interlocutory orders in such a way as to raise the very issue that will fall to be decided at the hearing. Tf the conduct is again called in question, it will usually not be possible to determine, on a contempt application, whether or not the interlocutory order has been infringed: Australian Consolidated Press td. v Morgan (1965) {12 C.L.R. 483; (1966) A.L.R. 387. By leaving that question to the final hearing, there will be a failure to meet the need for urgent relief, and the party enjoined will, on the final hearing, be put at risk not only of a final injunction but also of being in contempt. That is not a purpose which an interlocutory order is meant to serve."

Tf in this case the Board is restrained only from following a course of conduct where its purpose is the eliminating or substantially damaging of Parkwood or deterring or preventing Parkwood from engaging in competitive behaviour, the very difficulties arise which I referred to in Parish's case. In some cases, of which the tort of nuisance provides the most common example, the court cannot help but frame the interlocutory order in the terms in which the final relief will be granted. Where that is so, the difficulties in determining whether the injunction has been contravened will not stay the court's hand. Where however it 1s possible to specify the course of conduct which is shown to be prima facie in contravention of the law, it is better to proscribe that conduct. Tt is no objection, at least to a court not exercising statutory jurisdiction, which might in this regard be expressly limited, that the court for a short period restrains a person from doing that which he is lawfully entitled to do: Hubbard v Pitt [1976] 1 Q.B. 142 at 190. In my opinion if the order is one which the court has jurisdiction to make under s. 80, I consider it proper that it be in the absolute form in which it is, notwithstanding that until the hearing or further order the Board may be restricted from engaging in legitimate competition. In the

absence of a qualification to the order that does not raise the issues to be determined at the trial, such a proscription is the lesser evil. I would only add that the possibility of a party applying for a variation of the order if its operation proves to be unexpectedly harsh is a proper matter for the Learned trial judge to have had in mind when framing the order."

After referring to the terms of various sub-sections in s.80,

"But that does not mean that the principles which would guide a court of general jurisdiction in formulating the terms of its injunction are not applicable to the exercise of jurisdiction under s.80(2). A grant of jurisdiction to make interim injunctions to restrain conduct that contravenes or would contravene Pts IV or V, contemplates that the court will satisfy itself that the person being restrained has engaged or has threatened to engage in such conduct. Having determined that issue, the mannec in which the court will proscribe the conduct depends on principles drawn from the general law, except as modified by the succeeding sub~sections. In my opinion it is inherent in the grant of power to make interim injunctions that the court can do such things as are necessary to make that relief most effective, except where some Jimitation is expressly imposed, or where what the court seeks to do is not injunctive relief at all."

cases. In Thomson Publications (Aust) Pty Ltd v Trade

Practices Commission and others (1979) 27 A.L.R. 551 at 570

"In our view, the clear inference to be drawn from the provisions of s.80 of the Act is that the power of the court to grant final injunctive relief in respect of an actual or threatened breach of the provisions of Pt IV of the Act was intended by the

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Parliament to be restricted to the enjoining of conduct of the kind referred to in s.80(1) of the Act and not to extend to the enjoining of condvct not encompassed by the kinds of conduct specified in that sub-section. This conclusion docs not mean that a final injunction under s.80 must refer to kinds of conduct as distinct from specific conduct. What it means is that the conduct enjyoOined, preferably by precise description, must come within one or more of the kinds of conduct which s.&0(1) mentions. Nor does this conclusion necessarily apply to the power to grant interim injunctions for which specific provision is made in s.80(2) of the Act and in respect of which particular considerations may apply (see Victorian Eaq

Marketing Board v Parkwood Egqs Pty Ltd (1978) 20 A.L.R. 129 at 140)."

Although the Full High Court allowed an appeal from that decision, the reasons for 'judgment of Gibbs C.J., Stephen, Mason and Wilson JJ. contained the following passage (1981)

"No doubt the Federal Court has power to accept an undertaking at an interlocutory stage when the undertaking is reasonably related to the orderly procedure of the court or to the subject matter of the litigation, as Deane and Fisher JJ observed,

even though it is not in a form which falls within s.80."

a In my opinion that High Court decision is not inconsistent with the opinions expressed by Bowen C.J. and Brennan J. in the Victorian Egg Marketing Board case (supra). In

Brisbane Gas Co. Ltd. v Hartogen Energy Ltd. and another

(1982) 42 A.L.R. 685 at 688 Fitzgerald J. referred to the passage which I have just quoted from the High Court decision

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"Y am satisfied that the court also has power jn a case such as the present to grant an tnterlocutory injunction which is reasonably related to the orderly procedure of the court or the subject matter of the Jitigation, even though it is not in a form which falls within s-.80 of the Act."

In Rifki v Minister for Immigration (unreported - 3 Februery,

1983. Toohey J. said that he followed the view of Fitzgerald J. that :-

"nothing said in Thomson's case Limited the power of

the Federal Court to grant an interlocutory injunction pursuant to s.23" (of the Federal Court Act).

In my opinion it is desirable in the interests of justice that the injunction should be "in absolute terms until -the difficult question of an appropriate form can be resolved if need be at the final hearing, leaving it to the enjoined party to seek a dissolution of the injunction or a modification of it on proof that it has changed its purpose and that it proposes to engage in conduct which, though falling within the injunction, will henceforth be lawful". The restraint imposed by an interlocutory injunction is of course only pending the hearing and determination of the matter. In addition al] parties will be given liberty to apply. It follows that any respondent desirous of engaging

in conduct which does not breach the Trade Practices Act but

which might subsequently be held to constitute a breach of

the proposed injunctions may apply to the Court for whatever erder is necessary and desirable in the circumstances to

ensure that the injunction does not have the effect of