Mudginberri Station Pty Ltd v. The Australasian Meat Industry Employees Union & Ors [1985] FCA 465

This is a motion by Mudginberri Station Pty. Limited, the

Industry Employees Union, the Union, and the second respondent, Jack O'Toole, Mr. O'Toole, who is the federal secretary of the Union, for contempt. When referring to the Union and Mr. O'Toole together I shall describe them as the respondents. The notice of motion also names other respondents, but when the matter came on for hearing before me counsel for the applicant stated that it was proposed to

The notice of motion before me is one of an increasing number of applications and notices of motion arising out of a lengthy dispute relating to the abattoir and meat processing works conducted by the applicant at Mudginberri Station near Jabiru, east of Darwin. The applicant sought interlocutory injunctive relief from this Court to restrain the respondents and other officers of the Union from alleged

contraventions of s. 45D of the Trade Practices Act, the Act.

The applicant alleged that since 10 May 1985 its abattoir had been the subject of a secondary boycott in the form of a picket organised by the Union which is an organisation of employees registered under the Conciliation and Arbitration Act, 1904. It also alleged that Mr. O''Toole and other officers and members of the Union were participating in the picket. The matter came before Mr. Justice Beaumont who held that there was a serious question to be tried between the parties, and that the balance of convenience lay overwhelmingly in favour of preserving the position until the issues

His Honour granted interlocutory injunctions with a view to allowing the abattoir to operate and to remove the picket pending the final hearing. The matter came on for final hearing before Mr. Justice Morling. His Honour found that on 9 May 1985 the applicant commenced its operations at Mudginberri for the 1985 season which, because of climatic conditions in the Northern Territory, is confined to the months from May to November - that is, the dry season. The following day the picket line was established and was maintained thereafter. It was not disputed before his Honour that the Union was instrumental in organising the picket line, and that it continued to be responsible for maintaining it; nor was it disputed before his Honour that Mr. O'Toole and other respondents were all taking a part in the

His Honour held that the effect of the picket line was to shut down the applicant's exports of its products and that the shut-down caused and was causing the applicant substantial losses. His Honour held that the applicant had made out its case that the Union, Mr. O'Toole, and other respondents were engaging in conduct proscribed by sub-s. 45D(1) of the Act; that they were, in concert with each other, engaging in conduct that hindered or prevented the supply of services by government meat inspectors to the applicant, and that such conduct was engaged in for the purpose and was likely to have the effect of causing substantial loss or damage to the

The real issue before his Honour was whether the conduct of the respondents was protected by sub-s. 45D(3) - that is, whether the

conduct in which they were engaged was in concert with some of the

applicant''s employees; and if it was, whether it had as its dominant purpose and was substantially related to the remuneration, conditions of employment or working conditions of those employees. His Honour held that the conduct of the respondents in the proceedings before him was not protected by sub-s. 45D(3) because the dominant purpose for which it was being engaged in was not substantially related to the remuneration, conditions of employment, hours of work or working conditions of any of the applicant's employees. His Honour said that

"To the irresistible inference that the real reason why the picket line is being maintained is unrelated to the remuneration, conditions of employment, hours of work or working conditions of the applicant's employees. It is related to the

general policy of the Union that all meat workers ' in the Northern Territory should be paid according

to the tally system notwithstanding the terms of the award handed down on 20 April 1985."

His Honour held also that the evidence did not establish that the conduct then being engaged in by the respondents was being: engaged'in

by them in concert with any of the applicant's employees.

Mr. Justice Morling made orders on 12 July 1985, only two of

which I need mention. I will read the first two ordérs in full -

"1. THE COURT ORDERS THAT the First, Second, Third, Fourth and Fifth Respondents and each of them be restrained by themselves, their servants and agents from imposing, maintaining, giving effect to or enforcing any ban on the provision of goods or services to the Applicant at the Mudginberri Abattoirs ("the Abattoirs") or from setting up or maintaining any picket line at or in the vicinity of the Abattoirs where any such ban or picket line has as one of its purposes 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 business including:

(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 its ordinary day to day activities in the conduct of its-business as an export meat processing works~ and an Abattoirs 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

2. THIS COURT FURTHER ORDERS THAT the First, Second, Third, Fourth and Fifth Respondents and each of them be restrained by themselves, their servants and agents from:

(a) Aiding, abetting, counselling or procuring any person or persons to engage in the aforesaid conduct.

(b) Inducing or attempting to induce a person or persons whether by threat promises or otherwise to engage in the aforesaid' conduct.

(c) Being in any way either directly or indirectly knowingly concerning in or party 'to engagement in the aforesaid conduct.

(dad) Conspiring with any other person or persons to engage in the aforesaid conduct."

The Union and Mr. O'Toole are the first and second respondents respectively referred to in Mr. Justice Morling's orders. The history of the matter is set forth in some detail in the reasons for judgment of Mr. Justice Morling so I need not repeat much of what is said there by his Honour. It is perhaps desirable, however, that I say a little more about the curial history of the matter; and I refer to these

Following the grant of interlocutory injunctions by Mr.

Justice Beaumont on 12 June 1985 the applicant applied to this Court by an earlier notice of motion seeking orders that the first to fifth respondents show cause why they should not be punished for contempt of court for breach of the injunctions. The matter came before the Chief Judge, Mr. Justice Bowen, who held on 21 dune 1985 that he was satisfied that the picket line remained in place with the approval of the Union, and that there had been aclear breach of Mr. Justice

His Honour ordered, so far as is presently relevant, that the Union, in respect of its breach of the orders of Mr. Justice Beaumont of 12 dJume, be fined the sum of $10,000 and ordered that from the service of the order - that is, the Chief Judge's order - onwards there be a further fine of $2,000 a day should that breach continue. His Honour stood that matter over, so far as the other respondents were concerned, and ordered the Union to pay the applicant's costs of

A further application was made to this Court which was also

heard by the Chief Judge, which resulted in his Honour ordering, on 18 July 1985, that a writ of sequestration issue against the Union; that the first to fifth respondents - which included Mr. OQ'Toole - pay to the applicant its costs of the proceedings incurred since 21 June 1985; and made certain other orders that are not relevant for present

Appeals have been lodged from the judgments of the Chief dudge and of Mr. Justice Morling and none have yet been determined. The appeal from the judgment of Mr. Justice Morling has not yet been

Following the final orders of Mr. Justice Morling made on 12 July 1985, the applicant filed the notice of motion on 22 July 1985

The statement of charge in the notice of motion refers to the orders of Mr. Justice Morling of 12 July 1985 and, so far as is presently relevant, those orders numbered 1 and 2 made by his Honour,

The statement of charge then proceeds as follows, so far as

"€b) Personal service of a sealed copy of the said orders was effected as follows:

(1) Upon the First Respondent on 15 July 1985 at Sth Floor, 377 Sussex St., Sydney being its registered office.

(ii) Upon the Second Respondent on13 July 1985 at Oenpelli Road, Mudginberri, N.T.

{c) As at the present date the First Respondent by itself and its officers the Second, Third, Fourth and Fifth Respondents and each of the Second, Third, Fourth and Fifth Respondents- in full knowledge of the continuing existence of the picket line are continuing to disobey

the Order aforesaid. (d) Each of the Respondents is aiding and abetting, counselling or procuring other persons to form part of or participate in the continuing maintenance of the said picket line. (e) Bach of the Respondents is directly or indirectly knowingly concerned in or a party to the continuing maintenance of the said picket line. (f) Each of the Respondents is conspiring with the others to continue the maintenance of the said picket line. On the evidence which is now before me, I am satisfied that the Union and Mr. O'Toole were each served with the orders made on 12 July 1985 by Mr. Justice Morling and that they were endorsed with a notice calling the attention of the Union and Mr. O'Toole to the

I have judged the questions in issue by applying the standard of proof beyond reasonable doubt. It was agreed between the parties

The evidence consisted of affidavits and the oral evidence of Mr. A.G. James, the solicitor for the applicant. His evidence was concerned primarily with the identification of Mr. O'Toole as the person who was interviewed during a current affairs' programme" known as "Territory Extra" and broadcast on 19 July 1985 on the Australian

I accept Mr. James as a truthful and reliable witness and I

am satisfied that it was Mr. 0O'Toole with whom the interview on radio

It has been established that the picket line was set up well

before 12 July 1985 and remained in place until at least 22 July, when

the notice of motion was served upon the respondents.

The Union was instrumental in and responsible for- establishing and maintaining the picket line at all relevant times."

It has also been established that Mr. O'Toole played a part in the maintenance of the picket line before 13 July 1985. I select that date because it was then that he was served with Mr. Justice Morling's

Whether Mr. O'Toole himself breached Mr. Justice Morling's orders after being served with them is a question of some difficulty.

Counsel for the applicant relied strongly on the radio interview with

Mr. O'Toole oni19 July. Although the statements then made by Mr.

O'Toole are consistent with his own involvement in the maintenance of

the picket line by the Union, they are also consistent with other hypotheses, including his role as being essentially that of spokesman

The evidence of Mr. O'Toole's involvement in relation to the

picket line after 13 July is slender and ambiguous. The fact that he

It has not been established, in my opinion, that Mr. O'Toole breached Mr. Justice Morling's orders. It has, however, been

established that the Union did. I shall now hear evidence and

1 certify that this and the nine (9) preceding pages are a true copy of the Reasons for Judgment herein of his Honour