Re F Sharkey & Company Pty Ltd & Ors v Joseph Fisher & Ors [1980] FCA 146; (1980) 50 FLR 130 (26 November 1980)

Trade Practices - secondary boycott - contractors previously engaged or nominated by Water Board phased out as the result of industrial pressure brought to bear on Board and Minister by Union representing men employed in Board's day labour force - Board a statutory body representing the Crown - whether the grant of injunctive relief against the Union and its officials would prejudicially affect the Crown - Bradken Consolidated Limited v. B.H.P. Co. Limited [1979] HCA 15; (1979) 53 ALJR 452 - Trade Practices Act 1974, ss.45D, 4(2).

Counsel referred to the decision of Franki J. in Trade Practices Commission v. Legion Cabs (Trading) Co-operative Society Limited [1978] FCA 47; (1978) A.T.P.R. 40-092. He submitted that the decision was distinguishable from the present case. Alternatively he submitted that, to the extent that this case was covered by that one, it (Legion Cabs) was wrongly decided.

4. Next it was submitted that the conduct engaged in by the Union and its officers was not, within the meaning of s.45D(1) of the Act, engaged in "for the purpose . . . . . . . of causing . . . . . substantial loss or damage to the business" of the applicants. It was submitted that the word "purpose" in s.45D(1) referred to the subjective purpose which the officers of the Union, and through them, the Union had. The real reason for serving the notice and entering into the arrangement contained in the February 1980 correspondence was deposed to in the evidence of Mr. Fisher. It was submitted that it was incorrect to ascribe the real reason, or one of the real reasons (see s.45D(2)) for the Union's conduct as the causing of damage to the applicants. It was submitted that the decision in Wribass Pty. Limited v. Swallow [1979] FCA 3; (1979) 38 F.L.R. 92 was distinguishable or, if not, wrongly decided. Counsel placed reliance upon what had been said by J.B. Sweeney J. in his dissenting judgment in Transport Workers' Union of Australia v. Leon Laidely Pty. Limited [1980] FCA 25; (1980) 28 A.L.R. 589 at p. 598 in relation to s.45D(3). Counsel submitted that the judgments of the majority did not purport finally to determine the question (see pp. 594-595 and 600-602).

The most recent consideration of the problem by the High Court is to be found in Superannuation Fund Investment Trust v. Commissioner of Stamps (South Australia) [1979] HCA 34; (1979) 26 A.L.R. 99. The question for decision in that case was whether the Trust, which was a body corporate established by the Superannuation Act 1976 (Commonwealth), was liable to pay South Australian stamp duty upon three memoranda of transfer of land in South Australia. The Chief Justice and Mason J. were of the opinion that the Trust was a manifestation or emanation of the Crown in right of the Commonwealth. Stephen and Aickin JJ. expressed a contrary view. Murphy J. did not find it necessary to reach a conclusion on that particular question.

"The nature of the trusts upon which the Trust holds its funds demonstrates that it is by no means a 'bare trustee' holding property to which some beneficiary is absolutely entitled in the sense that it may call for immediate transfer of the funds. It has been held that a bare trustee who holds property on trust for the Crown is entitled to the same privileges and immunities as the Crown itself - see Grain Elevators Board (Vic) v. Dunmunkle Corporation [1946] HCA 13; (1946) 73 C.L.R. 70 at 74, per Latham C.J.;

Furthermore, it is plainly established that the functions which the board now carries on were certainly the functions of government up to the time the Act came into force on 31 March, 1925 (see s.2(1)(c)). That appears from the provisions of the Metropolitan Water and Sewerage Act of 1880 (43 Vic. No.32) and the amendments thereto, all of which the Act repealed (see s.5 and the First Schedule). The former legislation was considered by the High Court in Federated Engine Drivers and Firemen's Association of Australasia v. Broken Hill Proprietary Co. Limited [1911] HCA 31; (1911) 12 C.L.R. 398. In the view of Griffith C.J. (p.414), Barton J. (p.425) and O'Connor J (p.441) the then board was in effect the Crown. It was described as a department of the State Government.

"It has always been recognised in Australia that the conduct of railways is a function of the governments of the States: see the Railway Servants Case (1906), 4 C.L.R. 488 at pp. 534-535; Wynyard Investments Pty. Ltd. v. Commissioner for Railways (N.S.W.) [1955] HCA 72; (1955), 93 C.L.R. 376, at pp.385, 390, and cf. at p.397 and General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) [1964] HCA 69; (1964), 112 C.L.R. 125, at p. 134. That fact is by no means conclusive, for a body which discharges public functions is not necessarily an agent of the Crown, but it does provide some assistance to the view that the Commissioner is acting on behalf of the Crown. However, when all the matters which I have mentioned are considered, there can be no doubt that the Commissioner is an agent of the Crown in right of the State of Queensland, and entitled to its privileges and immunities."

In City of Launceston v. The Hydro Electric Commission [1959] HCA 12; (1959) 100 C.L.R. 654 there are to be found passages (pp.661- 662) which I regard as supporting the view to which I have come in this case, notwithstanding the care which must, as I say, be used in using the rating cases when a problem of the kind here in question has to be considered. I do not find it necessary to set out what their Honours there said in that case.

Finally, I should refer to State Electricity Commission of Victoria v. City of South Melbourne [1968] HCA 49; (1968) 118 C.L.R. 504, a case which was very much relied on by counsel for the applicants. In my opinion the Court, in the joint judgment which it published, plainly distinguished the case from the type of case which is here under consideration. Counsel placed great reliance upon the decision because of the provisions of s.12 of the State Electricity Commission Act 1958 which was under consideration. It empowered the Commission to administer the Act and exercise its statutory rights, powers and authorities and discharge its statutory duties "subject to the Minister". Thus the section was not dissimilar to s.7(2) of the Act here in question which I have relied upon in the present case. But, after referring to s.12 and another provision, s.21, their Honours said (118 C.L.R. at p.509):

(1980) 50 FLR 130

(1979) 53 ALJR 452