Federal Court of Australia|1985-07-19

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2 4 DO Contemot or Court - refusal to pay fines ampesed for disobedience to interlocutory injunction - aoplication for writ of sequestration against trade union - wnather Court's usual

Powers to punish for contempt exercisable in relation to trade

union or whether deregqistration the sole remedv - relationship of

Trade Practices Act 1974 considered - whether as matter of @iscretion writ should issue having regard to statutory functions

Conciliation and Arbitration Act 1904 55.132; 133; 142A; 143,

MUDGINBERRI STATION PTY. LIMITED v THE AUSTRALASTIAN MEAT INDUSTRY

Third Pespondent DICK ANNEAR Fourth Respondent PAT ROUGHAN

A Writ of sequestration issue against the Australasian Meat Industry Employees Union in accordance with the form set forth in the Schedule hereto.

The first to fifth respondents do pay to Mudginberri Station Pty. Lamited its costs of these ovroceedings incurred since 21 June 1985.

Mudginberri Statazron Pty. Limited and the Australasian Meat Industry Employees Union have liberty to ayoly on two days notice.

NEW SOUTH WALES DISTRICT REGISTRY Ne. G1Z23 of 1985

First Respondent JACK O'TOOLE Second Respondent TREVOR SURPLICE Third Respondent DICK _ANNEAR Fourth Respondent PAT_ROUGHAN Fifth Respondent MEAT INSPECTORS ASSOCIATION Sixth Respondent GORDON McCOLL Seventh Respondent ALEM THOMPSON

Elazabeth the Second by the Grace of God Queen 3f Australia and

her other Realms and Territories, Head cf the Commonwealth

TO JAMES PETER GRANT of Deloitte Haskins & Selis, 7th Floor, 15-19 Bent Strset, Sydney KEVIN SHIRLAW of Horwath & Horwath, 307 Pitt Street, Sydney MAX DONNELLY of Horwath & Horwath, 307 Pitt

ALEXANDER ROBERT MACKAY MACINTOSH of Peat Marwick & Mitchell, Tower Building, Australia Square,

Sydney TONY SHERLOCK of Coopers & Lybrand, 6 O'Connell Stceet Sydney

GREETINGS WHEREAS in our Federal Court of Australia, New South Wales

District Registry, General Division in a certain proceeding there

pending wherein MUDGINBERRI STATION PTY LIMITED was the Apolicant

and the AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNTON was the First

AND WHEREAS on 12 June 1985 the Honourable Bryan Alan Beaumont, a

THE COURT ORDERS THAT until the final cetermination of

this proceeding or further order, whichever should first occur, the First, Second, YThicd, Fourth and Fifth Respondents and each or then be restrained by

themselves, their servants and agents from imposing,

maintaining, gliying effect to or enforcing any ban on

the provision of gas to the Avplicanr at the Mudginberri Abattoirs ("the Abattoirs") or from setting up or maintaining anv picket line at or in the vicinity of the Abattoirs where any such ban or picket line has the purpose and would have or be likely to have the effect of preventing or hindering the ordinary day to day activities and operations of the Abattoirs'

(a) the carrying out of works of maintenance and repair at the Abattoirs;

(b) the delivery of any livestock for slaughter and processing;

(c) the access to and egress from the Abattoirs of any Person or persons providing goods or services to the Abattoirs or otherwise involved or engaged in

of its business as an export meat processing works and an abattoir licensed to process and export meat from Australia; (d) the egress from the Abattoirs of any product of the Abattoirs; {e) the sale of any processed products or by-products of the Abattoirs. AND WHEREAS on 21 June 1985 the said First Respondent was adjudged by the Honourable Sir Nigel Hupert Bowen, K.B.E., tha

Chief Judge of the Federai Court of Australia guilty of contempt

in that it was in breach sf tne terms of the 52:3 injunction AND WHEREAS His Honour ordered that ths Australasian Meat Industry Employees Union re rained Ten thousand dollars (810,000) in respect of that breach ard a further fine of Two thousand dollars ($2,000) per day so long as the breach continues and further ordered that such fine of $10,000 be paid to the Reqistrar of the Court within seven days of the service of his order and the said order was served on the Australasian Meat Industry Employees Union on 24 June 1985 and further ordered that such daily fine of Two thousand dollars ($2,000) if and when incurred be paid to the Registrar within forty-eight (48) hours of its being incurred AND WHEREAS the breach continued until the interim injunction of 12 June 1985 was dissolved on 12 July 1985 and the Australasian Meat Industry Employees Union became liable to a fine of Two thousand dollars ($2,000) per day for seventeen days, that is, thirty-four thousand dollars ($34,000) making a total of fines due of forty-four thousand dollars ($44,000) none of which has been

AND WHEREAS on 18 July 1985 the Honourable Sir Nigel Hubert Bowen

K.B.E., granted to the Applicant leave to issue this Writ of

KNOW YE THEREFORE that we in confidence of your prudence and fidelity do by this Writ authorize and command you or any four, three or two of you to enter upon the messuages, lands, tenements

and real estate whatsoever of the said AUSTRALASIAN MEAT INDUSTRY

EMPLOYEES UNION (hereinafter called "the AMIEU") and take

possession of all the real and persenal estate of the sard AMIEU and to collect, receive and get into your hands the rents, profits, interest and issues of 1ts real estate and personal estate and keep same under sequestration in your hands and thereafter we command you or any four, three or two cr you that you do at certain proper and convenient days and hours go to and enter upon all the messuages, lands, tenements and real estate of the said AMIEU and that you do collect, take and get into your hands not only the rents, profits, interest ard issues of the said real and personal estate but also all its goods, chattels and personal estate and further note that we authorize and command you to pay to the Registrar of this Court out of any

proceeds or moneys in your hands the whole or from time to time

any part of the fines totalling $44,000 imposed on the AMIEU until the same are fully discharged and further note that we order that the costs and expenses of executing this writ as

sequestrators be taxed and after the said fines of $44,000 have been paid in full be paid out of the proceeds and moneys in your

hands and further note that we authorize and command you to pay the balance of the proceeds and moneys in your hands from time to time into Court and this writ shall operate until this Court

BOWEN C.d. On 21 June 1985 I heard a wmoticn brought by Mudginberri Station Pty. Limited ("Mudginberri") the applicant, against the Australasian Meat Industry Employees Union (tne "AMIEU"), dack O'Toole, Trevor Surplice, Dick Annear, Pat Roughan, Meat Inspectors Association, Gordon McColl and Alex Thompson, the eight respondents. Mudginberri sought orders

against the first to fifth respondents for contempt of court

alleging they had breached orders dated 12 June 1985 made by

Beaumont J. in proceedings G123 of 1985. These orders were interim injunctions directed to the first to fifth respondents restraining them until the final determination of the proceeding or further order from imposing, maintaining or giving effect or enforcing any ban on the provision of goods or services to Mudginberri or from setting up or maintaining any picket line at or in the vicinity of the abattoir conducted by Mudginberr1i where any such ban or picket line had the purpose or would have the effect of hindering or preventing the ordinary day to day

activities and operations of Mudginberri's abattoir business.

In his reasons for judgment of 12 June 1985 Beaumont J. set forth his findings as to the history of the dispute and the position as it was at the time he heard the matter. He noted that the first to fifth respondents did not seek to argue that the applicant had failed to make out a prima facie case under

sub-s.45D(1) of the Trade Practices Act 1974; rather, they

concentrated their submissions on the defence providec by

3 - sub-s.45D(3). Considering this aspect his Honour care to the

conclusion that there was a serious question to be tried. He

found the baiance of convenience favoured cne grant of an interim injunction. He then granted the injunctions referred to above

and made an order for an expedited hearing of the proceeding.

On the hearing of the motion before me on 21 June 1985 I pointed out that it should be mentioned that the actual issue between the parties, whether a tally system should be introduced at the abattoir, was not before me in these proceedings as it was

not before -Beaumont J. The sole question before me was whether

there had been a breach of the order of the Court which Beaumont J. made onl2 June 1985 and, 1f so, whether some punishment should be ordered by the Court with a view to cbtaining obedience to its order. That was the only matter before me and I expressed no view about the substance of the dispute. I was satisfied that the AMIEU had been served with the order of Beaumont J. dated 12 June 1985 and that the order was endorsed with a notice calling the attention of the Union to the possible consequences of non-compliance. I was further satisfied that the picket line remained in place with the approval of the AMIEU carrying out its

earl1rer declared intention stated by Mr. O'Toole, its secretary,

who is the second respondent. The orders which I wade were -

"Le The motion in respect of the Second to Fifth Respondents be stood over with liberty to restore on seven (7) days

Thousana Dollars (510,000) an vzesp of breach or crder or Beaumont J., 12 June 1985 and from service of tt orcer onwards, further fine of Twa Thousand Dollars ($2,000) per day so long as the breach continues.

Liberty be given to all parties to apply on two (2) days notice.

The First Respondent is to pay the costs of the Applicant of this motion against the First Respondent.

The fine of Ten Thousand Dollars ($10,000) be paid to the Registrar of this Court within seven (7) days of

A daily fine of Two Thousand Dollars ($2,000) 1£ and when incurred be paid to the Registrar within forty-eight (48) hours of its being incurred."

Since 21 June 1985 the main proceeding has come on for hearing in Darwin before Morling J. On 12 July 1985 Morling Jd. held that Mudginberri's case under sub-s.45D(1) had been made out and that the defence under sub-s.45D(3) had not been made out. He granted permanent injunctions against the first to fifth respondents and each of them restraining them in terms broadly Similar to the terms of the interim injunction. He further

ordered that upon his order coming into operation on 12 July 1985

the interim injunctions granted by Beaumont J. be dissolved.

The matter presently before me comes forward in two ways. It will be noted that the motion before me on 21 June 1985 in

respect of the second to fifth respondents, against whom no order

was then made, was stood over with liberty to restore on seven

5 - days notice. Notice was given to Mr. Surplice, the thuird

respondent, on 9 July 19985, to Mr. Annear, the fourth respondent, on 8 July 1985 and to Mr. Roughan, the fifth resvondent, on 4 July 1985 of the restoration of that motion for hearing on 15

July 1985. The notice given to Mr. Surplice was of six days

In addition a notice of motion was issued by Mudginberri against AMIEU Seeking the issue of a writ of sequestration which was served on 1 July 1985 with the return day fixed for 15 July 1985 and a similar notice of motion seeking a writ of sequestration was issued by Mudginberri against Mr. O'Toole, the second respondent. This was served upon him on 2 July 1985 and

On the hearing before me on 15 and 16 July 1985 Mudginberri and the first to fifth respondents were represented

Evidence was tendered by Mudginberri which proved to my satisfaction that the fine of $10,000 imposed on the AMIEU on 21

June 1985S which was payable to the Registrar within seven days of

the service of the order of 21 June 1985 on the AMIEU had not

been paid to the Registrar notwithstanding the due service of the order on 24 June 1985. It was further proved to my satisfaction that the AMIEU maintained the picket 1n place hetween the hearing

before me on 2i June 1985 and the hearing before me on 15 and 16

6 - July 1985. The fine imposed from service of the order of 21 June

2 service of the order, until 12 July 1985 wnen the interim injunctions were dissolved.

These daily amounts became payaole to the Registrar within 43

The evidence showed that no part of these moneys had by 15 July 1985 been paid to the Registrar. The total amount of

unpaid fines was therefore $10,000 plus 17 days at $2,000 per day, i.e. $34,000, a total of $44,000. _

Not only has the AMIEU continued to breach the interim injunction up to the time it was dissolved, its secretary has, according to the evidence, publicly stated that the AMIEU will not pay the fine. I should perhaps mention that my findings in

the proceedings now before me, as with the proceedings before me

on 21 June 1985, have been arrived at on evidence which would satisfy the civil standard of proof andalso the criminal standard of proof beyond reasonable doubt, if that were

The time has come for the Court to consider what further step, if any, should be taken against the AMIEU in respect of its deliberate and continued disobedience of the Court's order of 12

Jun2 1985 up to the time that order was dissolved and in respect

Counsel tor the applicant s2e«ks the issue of a writ of

consents of five andivicual Commissioners who are willing to act. His request for sequestration 15 directed to securing payment of the fines. It is recognized that since 12 July 1935 there has been a permanent injunction in place of the interim anjunction. No question of breach of the permanent injunction 1s before me in

sequestration order against that organization. His first

submission was that this Court is not empowered to issue a writ of sequestration against a union ancorporated under the

Conciliation and Arbitration Act 1904; that Act envisages only

deregistration for non-compliance with an crder of the Court and it is exhaustive. In support of this suhmission Counsel referred

in detail to the provisions of 5.132 of the Conciliation and

Arbitration Act dealing with the registration of organizations, to s.135 providing for the issue of a certificate of registration to each organization registered under that Act and to s.136 providing for the incorporation of organizations. He emphasized that organizations were incorporated under these statutory provisions in order to represent the interests of members in

industrial matters and to pursue the objectives of that Act. On the subject of representation of its members he referred to

68 - Counsel further stressed the stringent conditicns laid

down by the Concilzation and aArhbiteation Act governing the

structure and conduct of registered organizations. In this regard he referred to the provisions of $.133 cencerning the requirement that the rules of the organization provide for elections, secret ballots and other matters, the provisions of $.133AA dealing particularly with elections by secret ballot, the provisions of s.133A dealing with federal and branch funds and

s.133B dealing with loans to members, and grants and donations by

organizations, and to the provisions of s.134 dealing with

In amplification of the purposes sought to be achieved by bringing the regulation of industrial organizations within the operation of s.51(XXXV) of the Constitution Counsel referred to

Federated IJronworkers Association of Australia v Commonwealth

(1951) 84 C.L.R. 265 at pp.277-280 and The Queen v Sweeney; ex

parte Northwest Exports Pty. Limited (1981) 147 C.L.R. 259 at

p.264 and pp.272-274. Counsel also referred to Part VIIIAA of the Conciliation and Arbitration Act dealing with accounts and audit in respect of registered organizations, particularly

Counsel further submitted that the Conciliation and

Arbitration Act itself provided a remedy where a registered

organization wilfully negiected to obey an order of the Court.

This was in sub-s.143(1)(q) providing for the cancellation of the

Counsel argued that the Conciliation and Arbitration Act

provides for the incorporation of organizations as a result of a long constitutional history; 1t provides what their functions are to be and it regulates them. The legislature has also given the Court power to issue an injunction and the question is whether one treats an organization as no different from any other person when it-comes to he issue of an injunction. He submitted the answer was no; the power to issue injunctions or, perhaps, rather the power to enforce them outside the provisions of the

This matter comes down to a question of statutory interpretation. This Court has jurisdiction conferred upon it by s.45D of the Trade Practices Act in relation to secondary boycotts. While that section remains in force the Court is obliged to exercise the jurisdiction so conferred by Parliament. In the exercise of that jurisdiction the Court is empowered to issue interim injunctions (sub-s.80(2) of the Trade Practices Act). But the power to issue an injuncticn without the usual powers of enforcing 1t would be a futile power. The usual powers of enforcing an injunction flow from the accepted law that disobedience of an order of the Court constitutes a contempt of the Court. One looks, therefore, to see if the Court has

conferred upon it the power to deal with contempt of Court. [In

this regard one finds that sub-s.31(1) of the Federal Court of

Austrailia Act 1976 read with s.24 of cne Ju@iciracy Act 1303 confers upon the Court the same power to punish for contempt as Was poosessed at the commencement of the Judiciary Act 1903 by the Supreme Court of Judicature in England. This includes power to commit for contempt or to issue a writ of sequestration. It also, 1n my opinion, even in the case of civil cconterpt, includes

the power to fine (see Coonan & Denlay Pty. Limited v _Superstar Australia Pty. Limited (No.2) (1981) 57 F.L.R. 118; Flamingo

Park Pty. Limited v Dolly Dolly Creation Pty. Limited 17 April

1985, Wilcox J., unreported). This power has been exercised from

time to time-in relation to orders made under the Trade Practices

Act since the Court commenced exercising jurisdiction.

What is now argued is not that the Court has no general power to deal with disobedience to an order of the Court under the Trade Practices Act as for a contempt. The submission is

that on the proper interpretation of the Trade Practices Act and

the Conciliation and Arbitration Act this power has been denied

The question is so basic that had Parliament intended to limit the powers of enforcement of the Court's orders under s.45D in relation to registered organizations one would have expected

1t to be done expressly. Particularly is this so when one appreciates that Parliament has dealt expressly with the

relationship of the Trade Practices Act and the Conciliation and

Arbitration Act in connection with the grant of injunctions

(including interim injunctions) in s.45D proceedings (see Trad2

es Act 5.80AA; er. Concriiration and =rbitratron Act

Division VA). The procedure of enforcing orders of a Court against a union by fine or sequestration aovears to be in no way

unusual (see Eckman v The Midland Bank Limited (1973) 1 All E.R.

609; £19734 I.C.R. 71; Con-Mech Engineers v AUEW C1973] I.C.R.

620; Goad v AUBFW £19733 I.C.R. 42 (No.2), £19733 1.C.R. 108

(No.3); and Heatons Transport (St. Helens) Limited v Transport

and General Workers Union (1973) A.C. 15). Indeed the

reguiations made under the Conciliation and Arbitration Act

assume that°a writ of sequestration may be issued against a registered organization to enforce payment of a fine imposed for

refusal to obey an order of the Court (see reqs. 99A and 105).

Undoubtedly any Court in exercising its judgment whether to impose any of these remedies against a union would take account of the fact that the funds of the union may consist largely of the contributions of members and that the important functions which a union properly performs representing its members should be interfered with as little as possible. On the other hand, the Court is an institution constituted by the community to assist in securing an orderly society. Its functions are basic. They are not lightly to be by-passed by holding that particular persons or organizations are not subject to the ordinary law of the land in relation to the securing of

Arbitration Act by sub-s.143(1)(g) providing that any

organization or person interested, tne Minister or the Registrar may apply to the Court for an order directing the cancellation of the registration of an organization on the ground that the organization has wilfully neglected to obev an order of the Court and by sub-s.143(2) conferring jurisdiction on the Court to hear and determine such an application itself provides a remedy for

the disobedience to an order of the Court and that this is the

only semedy for such disobedience. It is suggested that the nature of vegistered organizations, their functions and the

control of the1r affairs provided for by the Conciliation and

I cannot accept the correctness of this argument. The

jurisdiction conferred by s.143 of the Conciliation and

Arbitration Act is not directed to securing obedience to the

Court's orders under the Trade Practices Act. Indeed, to

deregister an organization for neglect to obey an order of the Court would ensure that the organization could not obey the order. It would cease to be incorporated and would become a mere association (sub-s.143(6)). Furthermore, the Federal Court

exercises jurisdiction under the Trade Practices Act in its

general division. That division has no power to act under s.143 of the Conciliation and Arbitration Act. The jurisdiction under

s.143 1s exercisable only by the industrial division of 'the

Federal Court sitting as a Bench of not less than three judges.

The matters to be considered in relation tao dersgiscra

erganization are very wide-ranging. Although wilful neglect to

obey a Court order may furnish a ground for a deregistcation application, the question whether deregistration should be

ordered will in general depend upon quite different

considerations from those which apply in contempt p

In the result I am not persuaded that the Court lacks power to make any of the usual orders for contempt of Court in

Counsel for the first to fifth yrespondents further

submitted that an interim injunction may be granted only where there has been or will be a contravention of s.45D of the Trade Practices Act and that this involves that the judge must be Satisfied that the defence given by sub-s.45D(3) will probably

not succeed at the hearing. He argued that the decision of Gray

J. in Epitoma Pty. Limited v Australasian Meat Industry Employees

Union (1984) 54 A.L.R. 713 was correct and that the contrary decision of the Full Court on appeal from Gray J. ((1994) 54 A.L.R. 730) was wrong. It was agreed there was no appeal from the decision of Beaumont J. on 12 June 1985 in the present case.

I am not prepared in these proceedings to canvass the correctness of the decision of Beaumont J. on 12 June 1985 and, in any event, would follow the decision of the Full Court in the Epitoma Case.

14 - Counsel for the first to fifth respondents arqued that

there was no evidence of breach of the inrerim injunction by Mr

evidence he took part an any "ban" oc in ""satting up or maintazning"" the picket line; exhorting or encouraging was not

enough. I have not detailed the history of this disput

reasons for judgment. The facts up to 12 June 1985 are set out in the judgment of Beaumont J. The further facts up to 21 June 1985 are referred to 1n my judgment of that date. Since then Mr. O'Toole has been active in relation to the dispute having twice gone on radio declaring publicly that the picket line would be maintained and having been observed as being personally present on the picket line on 13 and 14 June 1985 shortly before I commenced this hearing on 15 Jume 1985. Iam satisfied that Mr. O'Toole has been involved in maintaining the picket line in breach of the interim injunction. I shall return later to the question whether an order should be made against Mr. O'Toole

As to the third, fourth and fifth respondents Counsel announced his appearance for them part way through the hearing. He did not concede service upon any of them. He opposed the making of any order against them on the basis that no propec service of the order of 12 June 1985 with endorsement as required by the Rules of the Federal Court had been served upon them. It was submitted that the notice endorsed did not "name" the party

and 1t drew attention to the possibility of a fine as well as

15 + imprisonment or sequestcation thus going beyona the requirerent of the Rules (see 0.37 r.2¢3)). In my opinion tne novice

endorsed was not deficient. T will return to the position of

Finally, it was submitted by Counsel for the first to fifth respondents that if sequestration does lie against a union, contrary to his earlier submission, a writ of sequestration should mot issue against the AMIEU as a matter or discretion bearing in mind the provisions of the Conciliation and

Counsel for Muaginberri pressed for a writ of sequestration against the AMIEU and sought the committal to

prison of Mr. O'Toole for a specified period. He referred to

Danchevsky v Danchevsky (1974) 3 All E.R. 934 per Lord Denning M.R. at p.97. He pressed for a fine against Mr. Surplice, Mr.

Annear and Mr. Roughan the third, fourth and fifth respondents.

As to the AMIEU, it appears to me that in the exercise of my discretion I should order a writ of sequestration. A final

hearing of the proceeding under s.45D of the Trade Practices Act

has now been had. Morling J. on 12 July 1985 held that the AMIEU had not made out a case under sub-s.45D(3) and was in breach of sub-s.45D(1). It 1s clear from the evidence that the AMIEU has engaged in a course of public defiance of the Court's order of 12

June 1985. The organization has had every opportunity to

consider its position and to cease its contempt of ths Court's oraer. It has not ceased. The ainterzin order having be2n dissolved on12 July 1985 and a permanent znjunct:on having assued in its place, the ruture question wiil he a different one, whether the AMITEU 1s obeying the permanent injunction. I have considered the importance of the organization's position under

the Conciliation and Arbitration, Act and the related matters

referred to earlier in these reasons. I have considered also the need to take steps to preserve respect for the orders of this Court. The fine of $10,000 and the fine of $2,000 per day incurred ir .respect of 17 days now totalling $44,000 remain

unpaid. The AMIEU through 1ts Secretary asserts this will not be paid.

I am of the opinion that a writ of sequestration should issue against the AMIEU and that the five individuals who have consented to act should be appointed as commissioners. Counsel for the AMIEU has stated that 1f such an order be made, his client will wish to appeal against it. He asks that the operation of such an order be suspended for a short period to enable an appeal to be lodged. I would propose to suspend the

As to Mr. O'Toole, the second respondent, he has on the evidence, as I have said, been involved in the maintenance of the

picket line ain defiance of the Court's interim order which was

binding upon him personally. Notwithstanding this I am of

the opinion I shouid decline to make an order ctmmicting Mr. O'Toole to gaol for a specified pericd or for that matter an order imposing a fine or an order for the 213sue oF a writ of sequestration against him personally. The principal purpose or contempt proceedings in relation to Mr. O'Toole can no longer be served, that 1s, to secure compliance with the order of 12 June 1985. That order was dissolved on 12 July 1985 and can no longer be obeyed or disobeyed. It 1s true that in contempt proceedings brought in respect of disobedience to an order of the Court, there is in addition to the objective of ensuring compliance with the order a punitive element. This punitive element may need to be invoked in order to assert the Court's authority in particular circumstances. I have considered whether present circumstances

call for such an order against Mr. O'Toole. I do not consider

that they do. The Court's authority in cases such as the present may have to be asserted ina graduated way. A sequestration order will be made against the organization. I do not consider imprisonment should be imposed upon Mr. O'Toole at this stage and to fine him now or order sequestration against him would appear to achieve little to advance the interests of the administration of justice. However, this 1s not to say that if Mr. O'Toole breaches the permanent injunction granted by the Court on 12 July

MUDGINBERRI STATION PTY. LIMITED v THE AUSTRALASTIAN MEAT INDUSTRY

At a glance

Court

Decision date

Source

Judgment (209 paragraphs)

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Parties