for an unspecified period of time, commencing some time

before a date "about 3 weeks before 15 February 1990". He

approached Mr. Helms, the manager of the applicant's depot at

Mildura, on Thursday 15 February 1990 at 4.00 pm and said

that the applicant had not replied to a request for "a

meeting with the directors" of the applicant. On Mr. Helms'

evidence it is not possible to make a finding as to whether

the request for a meeting was made by "the TWU" (which, in

any event, might mean either the union or the Victorian

Branch) or by "his (i.e. Mr. Robertson's) members" - see

Robertson that the company had contacted the union and showed

him copies of two facsimiles. One (Exhibit D), dated 7

February 1990, from Mr. Ross Pollard, the managing director

"The Secretary,

Transport Workers Union of Australia,

(Victoria Branch)

By Facsimile No. (03) 646 1792

Dear Sir,

Our Mildura transport business has been

contacted by your representative Mr. Kevin

Connors on 23.1.1990 who has sought a

meeting with us.

Our business is a member of the National

Transport Federation Ltd. (NTF), which is

authorised to act on our behalf in all

industrial issues.

We therefore advise your union to contact

the NTF regarding your enquiries, before

any meeting will be agreed to by us. The

NTF can be contacted by telephone on (03)

640 8201 or by facsimile on (03) 640 8219.

We trust that you will respect our right to

be properly represented in this issue and

await further word from the NTF before

commencing further discussion with your

union."

The other (Exhibit C), dated 12 February 1990, from Mr. Keith Wise, the Secretary of the Victorian Branch of the union, to Mr. Pollard, relevantly read as follows:-

"Re: Request by K. Connors

Contrary to some companies (sic) belief,

respondency to awards, State or Federal,

carries with it responsibilities which

cannot be discharged on your behalf by the

N.T.F.

You are required to observe certain minimum

conditions and keep wage records, etc. The

union is entitled to seek to examine these

documents and conditions, and in the event

that these requests are refused, a breach

of the relevant award may occur. This has

nothing to do with the N.T.F., but is a

legal requirement falling squarely on your

company.

We suggest that your company meet with Mr.

Connors as requested."

5. After seeing those facsimiles Mr. Robertson said he

"believed" that Mr. Robertson made a phone call before he

returned, at about 5.30 pm on 15 February 1990, with Mr.

Hollis, another member of the Drivers' Committee, and told

Mr. Helms that there would be a strike. On Mr. Helms'

evidence it is not possible to make a finding as to precisely

what was said to him at that time by Mr. Robertson; he gave

evidence that Mr. Robertson said "We're taking the boys out"

(transcript p 251.3) but later he said that Mr. Robertson

had "said that we are going out" (transcript p 254.5).

6. A strike by the employee drivers began that night and

a picket line was established the following day, 16 February

1990 with four signs that read "T.W.U. picket line". At

about midday on 28 February 1990 (i.e. after the service of

the court's order) two of those signs were changed to read

"G.T.S. picket line" and the same change was made to a third

sign at about 4.00 pm on that day; the fourth sign remained

7. On 16 February 1990 Mr. Pollard spoke by telephone to

Mr. Keith Wise (the Secretary of the Victorian Branch). Mr.

Wise told him that "he knew nothing about the strike and that

he did not authorise it as he was at federal meetings all

week" and that the "employees had probably withdrawn their

labour themselves and that he supported this". He also told

Mr. Pollard that "he was getting a man organized to go up to

8. On Monday, 19 February 1990 Mr. Connors arrived at the

applicant's depot in Mildura. It is inferred that he was

sent by Mr. Wise. Mr. Connors was not present at the site

when the strike began nor when the picket line started.

9. Mr. Connors was an organizer of the Victorian Branch

of the union and under sub-rule 30(e) was "subject to the

control and direction of (the) Branch Committee of Management

as expressed through the Branch Secretary". Under sub-rule

30(a) that Committee "shall, subject to these Rules, have

control of all business of the Union within the area over

10. On 28 February 1990 Mr. Gary Mann, warehouse manager

for Lindemans Wines Pty Limited, was visited by Mr. Watkins

of the AWU, Mr. Smythe, an AWU shop steward, and Mr. Hamish

Weir. Mr. Mann in his affidavit deposed that Mr. Weir

introduced himself as "... Hamish Weir and I am a TWU

organizer"; in his oral evidence Mr. Mann said that he

"believed" that he recalled Mr. Weir saying that he was a TWU

organizer (transcript 228). On that evidence, coupled with

the applicant's documentary evidence that Mr. Weir held the

office of "Trustee" of the Victorian Branch, I am not

prepared to find that Mr. Weir stated that he was "a TWU

organizer". Mr. Weir also said to Mr. Mann: "We are

determined not to lose this dispute with GTS and if you do

this (i.e. not load any of the applicant's trucks) for us we

11. On the evidence Mr. Connors was on the picket line at

least on 19, 20, 21 and 28 February. In his affidavit, Mr.

Pollard deposed that on 20 February Mr. Connors "was standing

by the trucks of two contractors who had gone through the

picket line into (the) depot (at Mildura). He was writing

details down on a pad". During his cross-examination Mr.

Pollard said (transcript 268) that - on a day which was not

identified - Mr. Connors "was actually there organising the

bans and the pickets". I am not prepared to accept that oral

evidence. It did not appear in his affidavit and Mr.

Pollard, in his oral evidence, showed a distinct tendency to

"argue the case" for the applicant; in any event it is not

affidavit sworn by Mr. D. F. Matthews, a director of the

applicant, on 6 March 1990 as to events on that day at

Mildura. The affidavit was admitted subject to objection.

It is now ruled that the affidavit is admissible. That

affidavit exhibited a note of a statement made by Mr.

Commissioner Neylon in proceedings before the Victorian

Industrial Relations Commission on 5 March 1990. That note

recorded the Commissioner as saying that on 23 February 1990

a notification had been received "from the State Secretary of

the Transport Workers' Union notifying the existence of a

13. On 2 March 1990 Mr. Connors showed an identification

card to Mr. Helms, who gave evidence that, to the best of his

recollection, it said "T.W.U. and Kevin Connors with a photo

14. The Deputy Industrial Registrar's certificate (Exhibit

"B") listed both Mr. Connors and Mr. Hamish Weir as being

office holders of the Victorian Branch of the union - the

former as an Organizer who was a Committeeman and the latter

9. It was accepted by the applicant's counsel that those were the offices held but they contended that each was a servant or agent of the union itself - because of "the relationship between branch and federal union". Before leaving the facts it may be added that there was no evidence that the Victorian Branch or any Branch officer or any officer of the union played any part in the commencement of the strike or the establishment of the picket line; nor was there any evidence of any express authority conferred upon Mr. Connors or Mr. Hamish Weir by the union or by any Committee or by any officer of the union having authority to do so. As to two of the matters alleged in the Particulars of the Charge it should be said that (1) there is no evidence that Mr. Hamish Weir carried an identification card confirming "his authority to act on behalf of the respondent" (2) although there is evidence that Mr. Connors produced a card to Mr. Helms on 2 March 1990, the evidence does not satisfy me that that card confirmed "his authority to act on behalf of the respondent". Nor is there any evidence of the terms of the instructions (if any) given to Mr. Connors in relation to his visit to Mildura. There is no evidence that Mr. Connors attempted, on 28 February 1990, to induce or threaten Mr. Vorlicek not to load or remove goods from the applicant's premises at Mildura. Mr. Vorlicek made it plain to Mr. Connors that he was not attempting to load or unload product at the applicant's premises.

10. The court's order was made under the Trade Practices Act 1974. Section 45D(5) of that Act includes the following provision:

"If two or more persons (in this

sub-section referred to as the

"participants") each of whom is a member or

officer of the same organization

of employees ... engage in conduct in

concert with one another, ... the

organization shall be deemed for the

purposes of this Act to engage in that

conduct in concert with the participants

..."

In Actors and Announcers Equity Association of Australia v Fontana Films Pty. Ltd. [1982] HCA 23; (1982) 40 ALR 609 the High Court held that that sub-section is invalid. The reasons for judgment of Murphy J. included (at 642) the following passage:-

"In the light of experience of Australian

industrial relations, it cannot rationally

even be presumed that the conduct in

concert of two or more members of an

organization of employees is the conduct of

the organization. The conduct is often

unsupported by or occasionally opposed by

the organization. Also such members are

often members of other organizations and of

industrial and non-industrial bodies which

may sponsor the conduct. The fact is that

hundreds of thousands of members of federal

organizations (of employees) belong to

trade or industrial unions registered under

State Acts."

11. The need for evidence was emphasised by the High Court in The Commonwealth Steamship Owners' Association v The Federated Seamen's Union of Australasia [1923] HCA 40; (1923) 33 CLR 297 (the Seamen's Union) where Isaacs and Rich JJ. said (at 308) that:

"... no Court can act on mere suspicion,

particularly when the consequences are of a

penal nature."

Similarly, in The Waterside Workers' Federation of Australia v Burgess Brothers Limited [1916] HCA 2; (1916) 21 CLR 129 (Burgess) Griffith CJ. said (at 134):

"... in a Court of Justice mere surmise or

suspicion is not sufficient. A person or a

corporation is not in a Court of Justice

held liable for the actions of others

unless his or its authority to do the

actions on his or its behalf is established

by evidence."

That statement concerned a civil action for damages for conspiracy "to cause and compel the plaintiff company to break their contracts with other persons working for them". Barton J. said (at 134):

"... If the Hobart branch had no authority

from the present appellants for their

action, the case against the latter fails

for want of evidence, even if the Hobart

branch, or its members, did actually

conspire and combine to cause the

respondent company to break their contract

with their customers ..."

"... There being no express authority

conferred either by antecedent instructions

or by the rules of the appellants, is an

authority to be implied from the relation

between it and the local branch? I find no

circumstances sufficing to raise that

implication, for I find nothing in the

relative positions of the two bodies to

warrant the supposition that the one is

responsible for the acts of the other not

expressly authorized. Indeed, there is

nothing to show that when the crucial

action was taken at Hobart the Waterside

Workers' Federation knew of what was being

done, nor has any document been referred to

which would show that it was at that time

even consulted as to the course of action

to be taken."

12. In the present case the evidence does not establish that (in the words of Barton J.) the union "was at that time even consulted as to the course of action to be taken" i.e. consulted by the Victorian Branch, or by any organizers or officers of that Branch in relation to any of the acts relied upon by the applicant as the basis for the charges. There was no evidence that the applicant or its solicitors, at any time relevant to the present proceedings, ever discussed - or even attempted to discuss - with any Federal officer of the union any aspect of the matters, including, for example, whether Mr. Connors or Mr. Weir had any authority to speak on behalf of the union. It should be noted, however, that I am not finding affirmatively that the union or its Federal officers were not consulted as to any relevant course of action. The Federal union knew because of its representation by counsel in proceedings brought by the applicant before von Doussa J. on 27 February 1990 that there were allegations that Mr. Connors had been on the picket on 19, 20 and 21 February 1990.

13. The applicant's counsel sought to rely on the union's knowledge coupled with its inaction in controlling office holders of the Victorian Branch. They relied on the union's knowledge of the court's order, of the existence of the picket line and of Mr. Connors presence on it in seeking to distinguish Burgess on the basis that in that case the governing body had no knowledge of the acts. The union was on 27 February 1990 served, by facsimile transmission from the applicant's solicitors, with a copy of the court's order, accompanied by a letter addressed to the attention of the Federal Secretary, Mr. Ivan Hodgson. That letter was in terms that appeared to assume that the organization and its officials would do "all that is necessary to ensure the immediate lifting of any bans and limitations ... and otherwise do all such things as are necessary to ensure compliance with the order."

14. A letter in identical terms was also sent by facsimile transmission to the Secretary of the Victorian Branch of the union on 27 February 1990. On 28 February 1990 the solicitors for the applicant wrote to the solicitors for the union stating that "despite service" of the order, members of the union were continuing to picket the applicant's premises; the letter put the union on notice that contempt proceedings would be issued unless the conduct complained of ceased forthwith. There was no response to those letters. In addition the applicant relied on the fact that on 6 March 1990, five days after the issue of the contempt proceedings, Mr. Connors was in Mildura and told Mr. Matthews that the picket was back on. A short time later on that day, the picket which had been lifted was back in place.

15. An analagous argument was put by the applicant in General Aviation Services (U.K.) Ltd. v Transport and General Workers' Union and Ors. (1975) ICR 276 in the Court of Appeal. As Scarman L.J. said (at 306-7):-

"There is one final point with which it is

necessary to deal. The union never

disciplined or dismissed the shop stewards:

how then can it be said that they did not

possess the authority of the union to black

GAS? This is a factor to be considered

with all the other circumstances: its

weight will vary from workplace to

workplace. If, as in Heatons' case, shop

stewards have a general implied authority

to take industrial action, the union has to

show some act on its part revoking or

limiting their authority: if, as was the

fact, in my judgment, at the airport, shop

stewards have no such authority, it does

not necessarily follow that the union has

adopted or authorised their actions by not

disciplining or dismissing them."

16. In the present case, notwithstanding the lack of any reply by the union, the real position of the union is no more than one of inaction. The reason for such inaction is not known and as Griffith CJ. said in Burgess case "mere surmise or suspicion is not sufficient".

17. The applicant sought to rely upon the rules of the union in support of its contention that Mr. Connors and Mr. Weir were acting as the servants or agents of the union. Before turning to the terms of the rules, it is desirable to refer to the principles, enunciated by the High Court, relevant to a consideration of the rules, including the principles that (1) there can be "no presumption of authority for the agent to do what the principal could not lawfully do" and (2) that a "rule must be construed as authorizing the Branch to settle local disputes by legal, not illegal, methods".

18. As to the first of those two principles, in Burgess Isaacs J. (at 138) said:

"Consequently, on the well established

principles of law - the first, that of two

reasonably possible intendments that which

is in favour of legality is preferably

accepted (Co. Litt. 42a; Russell v

Amalgamated Society of Carpenters and

Joiners (1912) AC 421, at pp 435, 436 and

Amalgamated Society of Engineers v Smith

[1913] HCA 44; (1913) 16 CLR 537 at p 566), and the

second, that there is no presumption of

authority for the agent to do what the

principal could not lawfully do (Poulton v

London and South Western Railway Co. LR 2

QB 534, and Walters v Green (1899) 2 Ch D

696 at p 703) - rule 16 cannot be read as

impliedly giving authority to commit a tort

or other unlawful act."

19. As to the second principle in the Seamen's Union (at 312), Higgins J. said:

"There is nothing in all this to suggest

that the Branch's action is to be treated

as the action of the Union. But even if

rule 71 is to be treated as making the

Branch an agent of the Union, the rule must

be construed as authorizing the Branch to

settle local disputes by legal, not

illegal, methods; and no act of the agent

can impose on the principal criminal

liability for breach of the award unless

the Union itself be proved to take part in

or authorize the commission of the breach

(Chisholm v Doulton (1889) 22 QBD, 736;

Roberts v Woodward (1890) 25 QBD, 412;

Emary v Nolloth (1903) 2 KB, 264)."

20. In the Seamen's Union Knox CJ. cited Burgess with approval and Isaacs and Rich JJ. (at 307) rejected an argument that the decision of a Branch meeting constituted a breach by the registered organization, saying:-

"It was said that the mere fact of that

decision being made at the Branch meeting

constituted a breach by the organization of

the term of the award referred to. The way

in which that argument was presented was as

follows:- By the registered rules of the

respondent organization, Branches are

established; and it was contended that each

Branch so completely represented the whole

organization at its own locality that

whatever it did, rightly or wrongly, must

be taken to be the act of the whole

organization. ... The Union is composed of

members as its units. For convenience,

Branches are established at large shipping

centres, but the government and control of

the Union as a corporate or quasi-corporate

body is vested in a general meeting of the

members, the chief executive authority

being committed to a Committee of

Management following the instructions of

the meeting of members. A Branch has its

own business; but its own Branch business

is not the business of any other Branch,

and still less the business of every other

Branch, or of the Union as a whole."

Higgins J. said (at 310-311):

"But even if we can fairly treat the

resolution of the Victorian Branch as an

aiding of job control, it was a resolution

of the Branch, not of the Union. Counsel

for the Association, however, have examined

the rules of the Union, and contend that

the action of the Branch is action of the

Union. In particular, reliance is placed

on rule 71: "In the event of a dispute

occurring as to wages or working conditions

in any State, the members of the Branch in

such State may take such steps as will lead

to an immediate settlement of the dispute,

but if there should be any likelihood of

the dispute extending beyond the limits of

the State, the Branch officials shall

immediately notify the General President

and the General Secretary, and these two

officials shall take such steps as the

necessity of the case requires." But, in

the first place, if the Branch exercise

this power to try to settle a dispute

confined to a State, the action which it

takes is not necessarily the action of the

Union. A Branch cannot usually be treated

as an agent of the Union, so as to make the

acts of the Branch the acts of the Union

(Denaby and Cadeby Main Collieries Ltd. v

Yorkshire Miners' Association (1906) AC

384; Smithies v National Association of

Operative Plasterers (1909) 1 KB, 310).

Counsel cannot point to any clause in the

rules of the Union that prevents these

cases from applying to this case."

Lastly, Starke J. said (at 315-316):

"The relation of the Union and the Branches

under these rules is not very clear, but

they do not, in my opinion, constitute the

Branches the Union for local purposes, nor

give them any power to commit or bind the

Union or other members of the Union by

their resolutions (Waterside Workers'

Federation of Australia v Burgess Brothers

Ltd. [1916] HCA 2; (1916) 21 CLR 129; Denaby and Cadeby

Main Collieries Ltd. v Yorkshire Miners'

Association (1906) AC, 384; Smithies v

National Association of Operative

Plasterers (1909) 1 KB, 310). The Branches

have, no doubt, some powers of

self-government with respect to local

affairs, but those powers belong to them as

independent units and not as

representatives or agents of the whole Union."

Union."

21. The applicant company sought to meet the principles enunciated in Burgess and the Seamen's Union case by relying upon what was said by Fullagar J. (with whom Dixon CJ. and Kitto J. agreed) in Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30. His Honour said (at 81):-

"But in truth, as has been said, the branch

has in law no existence separate from that

of the federation. It is merely an

aggregate of members which is an integral

part or section of the whole federation,

having that degree of autonomy which is

permitted to it by or under the

constitution of the federation. It

represents the federation in the port of

Hobart. In and for the port of Hobart it

is, so to speak, the federation."

22. In that case there was an express finding of fact by the trial judge which was accepted by the High Court. As Fullagar J. said (at 81):

"There was abundant evidence to support his

Honour's finding that the continued

formation of those lines and the

obstruction of the Hurseys' path to work

was not a matter of mere spontaneous action

on the part of individual members of the

branch, but was organized and directed as a

branch activity ...

(At p 82) ... But the members of the

governing body of the federation were well

aware from the beginning of what was going

on, and the federation made it known to the

branch, and took steps to make it known to

the public, that the branch had their full

support and sympathy in 'the struggle' ..."

23. The applicant's counsel have argued that the decision was not dependent on those findings of fact. However, in my opinion the reasons for judgment of Fullagar J., relied upon by the applicant, should not be read as impliedly cutting down the principles enunciated by the High Court in Burgess and in the Seamen's Union case (supra). In this connexion it should be noted that Burgess was itself referred to in Williams v Hursey (at p 82) by Fullagar J. - on a different point but without any suggestion that it was no longer a correct statement of the law.

24. The rules of the union were analysed by senior counsel for the applicant, who referred to Rule 2 - the union's objects, Rule 5A(a) - supreme control of union vested in Federal Council, Rule 5B(g) - the formation of Branches for "the purpose of assisting the Federal Council to control and manage the Union" - see also Rule 6(a).

25. He also cited rules 10(a) and 22(b)(iii). He placed particular reliance upon Rule 30(a) (which is referred to earlier) and to Rule 32(e) which requires Branch Organizers to "assist in the work of the Branch generally, and discharge such duties as may be allotted to them by the Branch Secretary".

He also relied on Rule 31 which provided as follows:-

"31 - Mutual Support

(a) All Branches are pledged to loyally

support each other, financially or

otherwise, when required.

(b) The Federal Council may withhold

assistance from any Branch entering

upon a dispute without first having

obtained the sanction of the Federal

Council.

(c) The Federal Council may pay all or

any part of the expenses incurred by

or on behalf of a Branch in an

appeal to a Board or Court of

Conciliation or Industrial Appeal or

other approved tribunal."

26. Senior counsel for the union, in his submissions as to the rules, placed considerable reliance upon Rule 52 which includes the following provisions:-

52 - Industrial Awards, Agreements and

Disputes

Federal Industrial Matter

....

(b) ....

Whenever an industrial dispute occurs

... in a State or Territory, and such

dispute may affect members in another

Branch ..., the Branch Secretary of

the Branch concerned shall forthwith

inform the Federal Secretary in

writing of all relevant details of

the industrial dispute.

When any dispute occurs involving

members in more than one Branch, no

action including a cessation of work

shall be taken without the approval

of the Federal Council or Federal

Committee of Management.

....

Branches - State Industrial Matters

(d) An industrial dispute or other

industrial matter either of which is

solely confined to one State ... may

be submitted to the appropriate State

tribunal which functions within the

State concerned. All documents used

in connexion with an industrial

dispute or other industrial matter as

defined in this clause shall be

signed by the Branch Secretary of the

Branch concerned, otherwise the

Branch Committee of Management of the

Branch concerned is empowered to

control or manage, by resolution at a

meeting, an industrial dispute or

other industrial matter not covered

in clauses (a), (b) or (c) of this Rule."

27. The applicant in its written submission advanced an argument as to the construction of Rule 52 which in my opinion cannot be upheld. I accept the written submission by counsel for the union as to the construction of the relevant paragraph; I accept that the second last paragraph of Rule 52(b) is directed towards a situation where a dispute, believed to be intrastate, may "affect members in another Branch or ...". The last sentence of Rule 52(b) is directed towards disputes involving "members in more than one Branch". The word "may" is to be contrasted with the word "involving".

28. In the light of the passages quoted from both Burgess and the Seamen's Union case, in my opinion the rules relied upon by the applicant do not support its submission. It follows that the applicant's motion must be dismissed.

29. The union's counsel also advanced submissions (transcript 334) that even if, contrary to their submission, the union was liable for the actions of Mr. Connors and Mr. Hamish Weir, those actions did not constitute any breach of the court's order. In the light of the conclusion already expressed, it is not necessary to deal with those submissions; having regard to the fact that a fresh motion for alleged contempt by persons, including Mr. Connors, has been filed in the court, it is undesirable that I should express any opinion as to those submissions.