Trade Practices - Secondary Boycott - Purchase by appellant of Victorian milk for sale in its New South Wales stores - Refusal by New South Wales milk vendors to supply appellant's stores with New South Wales milk - Alleged contravention of s.45D of Trade Practices Act that conduct of respondents prevented or hindered the acquisition by customers of milk from appellant - Whether a prevention or hinderance of acquisition fell within section if there was also a prevention or hinderance of supply - Nature of requisite purpose.

Trade Practices Act 1974 s.45D

Counsel for the Appellant: Mr F M Douglas QC with Mrs S R W Emmett

Counsel for the Respondents: Mr D G Williamson QC with

Mr M J R Huntington

Solicitors for the Respondents: Sly & Weigall

The appellant bring in Short Minutes of an order on a day to be fixed by the Court.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. (See also Order 37 rule 2(3).)

This appeal raises a question of the construction of s.45D of the Trade Practices Act 1974 ("the Act"). A number of the provisions of that section were relied upon at first instance but, before us, the appellant, who was the unsuccessful applicant before the primary Judge, has relied on only one, s.45D(1)(b). The paragraph is as follows:-

"45D. (1) Subject to this section, a person

shall not, in concert with a second person, engage

in conduct that hinders or prevents the supply of

goods or services by a third person to a fourth

person (not being an employer of the

first-mentioned person), or the acquisition of

goods or services by a third person from a fourth

person (not being an employer of the

first-mentioned person), where--

(a) ...

(b) the fourth person is a corporation and

the conduct is engaged in for the

purpose, and would have or be likely to

have the effect, of causing--

(i) substantial loss or damage to the

business of the fourth person or of

a body corporate that is related to

that person; or

(ii) a substantial lessening of

competition in any market in which

the fourth person or a body

corporate that is related to that

person supplies or acquires goods or

services."

2. It is to be observed that the section prohibits conduct which hinders or prevents the supply of goods or services by a third person to a fourth person and conduct which hinders or prevents the acquisition of goods or services by a third person from a fourth person. The appellant relies on so much of the paragraph as relates to conduct that hinders or prevents the acquisition of goods as distinct from the supply of goods.

3. The facts of the matter are in short compass and were not in dispute before us. The findings made about them were not challenged by either of the parties. The account that we are about to give comes substantially from the primary Judge's reasons for judgment.

4. For a number of years a dispute has been smouldering in relation to the supply of Victorian milk to retail outlets in New South Wales. The appellant conducts a chain of supermarkets. It obtained supplies of Victorian milk, which was cheaper than New South Wales milk, and wished to continue to sell both Victorian and New South Wales milk. To this end it entered into an agreement dated 14 June 1985 with a company, Midland Milk Pty Limited, which was a Victorian milk supplier. Another party to the agreement was Davids Holdings Pty Limited which was described as a distribution agent. Under the agreement, as subsequently varied, the appellant did not buy the milk, but retailed it as an agent for Midland Milk Pty Limited at a commission of 10.25 cents per litre.

5. The respondents to the appeal are an association known as Amalgamated Milk Vendors Association Inc, which is incorporated under the Associations Incorporation Act 1984 (NSW), and a number of milk vendors who were described in the application as the Sixth Respondents. On 5 August 1987, a meeting of the councillors of the Association was held. The councillors felt strongly that the supply of Victorian milk to the supermarkets operated by the appellant posed a serious threat to their businesses and to the businesses of other milk vendors.

6. As his Honour said, the background to this dispute is the complicated structure which has been built up within the dairy industry within Australia. One of those complexities is the attempt to divide the industry into compartments at State boundaries, so far as concerns its impact upon "whole milk", ie milk supplied for human consumption as such, to be distinguished from "manufacturing milk", the balance of milk produced by dairy farmers. A consequence of the system was that the appellant was able to purchase Victorian milk at a price well below that paid for New South Wales milk. His Honour said:

"In the highly regulated milk industry, the

sale of Victorian milk through Jewel stores

(as I shall call the applicant's supermarkets)

has an immediate impact on individual milk

vendors in New South Wales. For, by virtue of

a system of licensing, each store purchases

its New South Wales milk from a particular

vendor at a controlled price. That vendor

operates only in a defined area, so that if a

large quantity of other milk comes into that

area through its Jewel store, the vendor's

gross receipts must diminish while many of his

overheads will remain the same."

7. At the meeting held on 5 August 1987 a number of councillors made clear their views that supply of New South Wales milk to the appellant's supermarkets should be terminated while those stores continued to sell Victorian milk. His Honour said that it must have been obvious that action of that kind could only be effective if it was concerted, but, if it were concerted, it could have a severe impact upon the appellant, both because some of the appellant's customers would be likely to prefer to continue to buy New South Wales milk, and also because the appellant could not obtain enough Victorian milk to meet all its requirements. His Honour said that, if a supermarket could not supply the milk a customer wished to purchase, the possibility that it would lose the customer altogether, or for a period, though difficult to translate precisely into figures, must be added to the lost sales of milk, when considering the impact upon each of the stores.

8. His Honour found that the councillors present at the meeting were unanimously in favour of a concerted termination by milk vendors of the supply of New South Wales milk to the appellant's supermarkets. He said that that unanimity was not translated into a resolution only because of a warning by one of the councillors that the Association could not be involved, nor could it support, any industrial action, pickets, bans or the like, as this would be contrary to the Act. But it was said at the meeting that, if individuals of their own volition decided that they wanted "to do things", they could do so, but the Association could not support them.

9. His Honour went on to analyse the evidence of the conduct in which milk vendors then proceeded to engage. In the result milk supplies were denied to a number of the appellant's supermarkets by milk vendors during the week of 3 August 1987. Delivery of New South Wales milk stopped entirely between 6 August and 13 August 1987 to all the appellant's supermarkets other than those at Wagga and Queanbeyan. Supplies resumed only after the making of an interlocutory application for injunction which was made at the time of the institution of the proceedings.

10. As mentioned, the milk vendors in question were named as the Sixth Respondents to the application and are the Sixth Respondents to this appeal. Subject to a submission based on purpose with which we shall later deal, there was no issue before us concerning the question whether the milk vendors who denied supply to the appellant's supermarkets were acting in concert. His Honour's task and our task in this respect have been aided by admissions made by the Sixth Respondents and also by the Association which became the seventh respondent to the application. The admissions were expressed as follows:

"In the event that any one or more of the Sixth

Respondents, for whom Sly & Russell act, is

found to have engaged in conduct that would,

if it had been engaged in in concert with a

second person, have been in breach of Section

45D of the Trade Practices Act, each such

Sixth Respondent admits that such conduct was

engaged in in concert with the Seventh

Respondent and all of the Sixth Respondents

for whom Sly & Russell act will, without

further admissions, give undertakings to the

Court, in such form as the Court considers

appropriate, to refrain, by themselves, their

servants and agents, from engaging in conduct

that would constitute a further breach of

Section 45D of the Trade Practices Act.

The Seventh Respondent admits that it acted in

concert with such Sixth Respondents (if any)

as is or are found to have engaged in conduct

that would, if it had been engaged in in

concert with a second person, have been in

breach of section 45D of the Trade Practices

Act."

11. The case was put to his Honour in a number of ways all of which he rejected. It has been put to us, as we have earlier said, in only one way. It is based entirely on so much of s.45D(1)(b) of the Act as proscribes the hindering or preventing of the acquisition (not supply) of goods by a third person from a fourth person where the fourth person is a corporation. His Honour rejected the appellant's case based upon that provision in the following passage from his judgment:

"To treat the actions of the milk vendors as

conduct that hindered or prevented the

acquisition of milk by customers of Jewel

stores is to look beyond the direct effect of

those actions upon supply to the stores, and

to take account of an indirect or ultimate

effect upon the availability of milk to the

customers of the stores. Counsel for the

respondents submits that the section should be

construed as concerned with direct effects,

rather than indirect effects. He points out

that Parliament, in enacting the Trade

Practices Act, has repeatedly distinguished

between direct and indirect effects. Where it

has thought fit, it has provided by reference

to both: see ss. 47(2), (3), (6), (7), (8),

(9) and (13), 50(1) and (1A). There is force

in this submission. But to my mind, there is

even greater force in the further

consideration that s.45D(1) deals separately

with supply of goods or services to a 'fourth

person' and acquisition of goods or services

from a 'fourth person'. It would be

inconsistent with the structure and evident

intent of the provision to treat an

interference with supply to the applicant, not

under that part of the provision which deals

with supply to it, but as an indirect

interference with acquisition from it. But it

would be quite anomalous if such an approach

could lead to liability for the indirect

effect in a case (such as the present) where

the terms of the legislation exclude liability

for the direct effect. In my opinion,

s.45D(1) contemplates two levels of activity,

supply to a corporation of its requirements,

and supply by it to its customers; and the

subsection makes separate provision for

interference by a secondary boycott at each of

those levels. In neither case, does that

provision extend to indirect consequences at

the other level."

12. Counsel for the appellant submitted that the case fell squarely within the provisions of the paragraph upon which it relied. Counsel for the respondent submitted:

(a) his Honour's reasons and conclusion were

correct;

(b) although the only express reference in

the paragraph to purpose was in the

phrase, "engaged in for the purpose ...

of causing substantial loss or damage to

the business of the fourth person (ie the

appellant)", a breach of the paragraph

would not be established unless it were

shown that the purpose was damage to the

appellant's business; the dominant

purpose was not damage to the appellant's

business but the protection of the milk

vendors' own businesses;

(c) there was no evidence, or no sufficient

evidence, to establish that the actions

of the respondents would have, or would

have been likely to have, the effect of

causing substantial loss or damage to the

appellant's business.

13. We find it convenient to set out the terms of the relevant paragraph upon which the appellant relies comprehensively. In other words, what follows consists only of the elements of the paragraph upon which the appellant relies. Those elements are as follows:

"A person shall not, in concert with a second

person, engage in conduct that hinders or

prevents the acquisition of goods by a third

person from a fourth person where the fourth

person is a corporation and the conduct is

engaged in for the purpose, and would have or

be likely to have the effect, of causing

substantial loss or damage to the business of

the fourth person."

14. In the appellant's submission each milk vendor is a "first person" within the meaning of the paragraph, each other milk vendor and the Association is a "second person", the customers of the appellant's supermarkets are "third persons" and the appellant is the "fourth person".

15. His Honour found that the appellant could not succeed on this basis because he thought that it would be inconsistent with the structure and evident intent of the paragraph to treat an interference with supply to a person, not under that part of the paragraph which deals with supply to it, but as an indirect interference with acquisition from it. He concluded that it would be anomalous if there could be liability for the indirect effect in a case such as the present where the terms of the legislation excluded liability for the direct effect.

16. In support of their submissions that his Honour's conclusion should not be disturbed, counsel for the respondents made some general submissions about the nature and purpose of s.45D of the Act. They emphasised that the section was one dealing with secondary boycotts. They contrasted its provisions with those of s.45A of the Act and the definition in s.4D thereof of the expression "exclusionary provision". It is unnecessary to refer to the detail of the definition, but it is true, as counsel submitted, that it deals with a primary, as distinct from a secondary, boycott. In the course of their argument counsel mentioned that the appellant might have been able to rely upon s.45A and s.4D but for the fact that none of the milk vendors was in competition with any other. That is because of the regulated system which exists in New South Wales for the control of the retail sale of milk.

17. Counsel for the appellant submitted that the words of the paragraph upon which the appellant relied should be given their plain and ordinary meaning and that, subject to the remaining arguments upon which the respondents relied, the case fell within them. They submitted that the plain and unambiguous meaning of the words should not be displaced by a consideration of the heading to the section which is, "Secondary Boycotts". They also said that the respondents' conduct did constitute "a collective secondary boycott" because it hindered or prevented the acquisition of milk by the appellant's customers and thus restricted their dealings with the appellant.

18. We agree with the submissions made by counsel for the appellant. In our opinion the paragraph contains two separate and distinct provisions, one dealing with supply to a corporation such as the appellant and the other dealing with the acquisition by persons of goods or services from such a corporation. The question whether particular conduct constitutes a contravention of either of these provisions should be determined as a matter of construction, without making any judgment as to whether the result is desirable or undesirable in policy terms. The fact that a particular case may not be covered by one part of the paragraph is no reason to deny relief if it is in terms covered by another part of it. We can see no reason why the express words of the paragraph should be given the limited or qualified meaning for which the respondents contend. Furthermore, if it matters, the evidence did establish that there was a secondary boycott. Certainly, the denial of supply to the appellant constituted a primary boycott. But that denial had the consequence of supply in turn being denied to the appellant's customers. Either they went without New South Wales milk or they were forced to obtain supplies of it elsewhere.

19. In the submission of counsel for the respondents, an approach in accordance with that adopted in the last paragraph is erroneous because it fails to give sufficient effect to the ambit of the expression "in concert". In counsel's submission that expression has inherent in it an element of purpose in the sense that persons acting in concert necessarily do so to achieve a common purpose. In this case the primary purpose of the milk vendors was to protect their own businesses. That purpose was to be achieved by denying the appellant supplies of milk. For the purposes of the submission, counsel conceded that that might in consequence involve the respondents having also the purpose of injuring the appellant's business. But, so they submitted, on no basis did the evidence establish that their purpose was to harm or injure the appellant's customers. Effectively, so it was submitted, that is what must be found against them before the paragraph will apply to this case which depends upon the prevention or hindering of the acquisition of goods rather than the prevention or hindering of their supply.

20. In essence, counsel's submission was that, if A is in dispute with B and does something which A knows must damage B, the fact that A damages C as a consequence of damaging B is irrelevant. It is A's motive or purpose in damaging B which is the only relevant motive or purpose.

21. We think that the submission should be rejected because it fails to apply the plain words of the paragraph. The respondents did in concert engage in conduct that hindered or prevented the acquisition of goods, namely, milk, by the appellant's retail customers from the appellant. That is the only objective fact to which the paragraph at that point refers. Purpose does not at that stage come into the matter. It does become critical eventually because the paragraph will not apply unless the conduct in which the respondents have engaged was engaged in for the purpose of causing substantial loss and damage to the appellant's business. But that is a separate question to which the later submissions made by counsel for the respondents are directed.

22. It is perhaps unnecessary to add that one would not lightly read into an expression, such as "in concert", a requirement that an applicant for relief must establish some particular purpose of the respondents, in this case, harm to the appellant's customers, before the provision will apply, when the section itself, in a number of other contexts, expressly requires proof of purposes of various kinds. If the legislature had intended the meaning of the expression "in concert" to be affected by considerations such as are relied upon by counsel for the respondents, one would have expected it to use appropriate words to make its intention clear.

23. In reaching the conclusion that the conduct of the respondents was conduct that hindered or prevented the acquisition of goods by the appellant's customers from the appellant we do not overlook the necessity to identify the relevant goods. But we do not see the necessity to go further than to identify those goods as "milk" (or, perhaps, "pasteurised milk"). The evidence does not establish that the denial of New South Wales milk by the respondents to the appellant had the effect of preventing the appellant supplying milk to its customers. The appellant had access to some Victorian milk, although not enough to enable it to supply normal requirements of its customers. For all that we know it may have been possible for the appellant to obtain the balance of its needs from elsewhere; perhaps from some other State or New Zealand. But, whether or not there was such a possibility, there is no doubt that the respondents' conduct hindered the appellant supplying its customers, and, consequently, hindered the customers in acquiring milk from the appellant. That is enough to bring the case within the opening words of s.45D(1).

24. We turn to the submission that the dominant purpose of the respondents was not to damage the appellant's business but to protect the milk vendors' own businesses. It is to be observed that the phrase "dominant purpose" is not used in para.(1)(b) of the section. It is to be found in subsec.(3), but subsec.(3) has no application to the circumstances of the present case. In our opinion the submission is answered by reference to s.4F(b) of the Act, which reads as follows:

"4F. For the purposes of this Act--

(a) ...

(b) a person shall be deemed to have engaged

or to engage in conduct for a particular

purpose or a particular reason if--

(i) the person engaged or engages in the

conduct for purposes that included

or include that purpose or for

reasons that included or include

that reason, as the case may be;

and

(ii) that purpose or reason was or is a

substantial purpose or reason."

25. Consequently, not only is it not necessary for the appellant to show that damage to its business was the dominant purpose of the respondents; it does not matter that it appears that the respondents had some other purpose, such as the protection of their own business interests. The only relevant question is whether, despite the existence of that purpose, the respondents had, as a substantial purpose, the infliction of damage upon the business of the appellant.

26. As we see the case, there can be no doubt that the respondents possessed such a purpose. It is true that this purpose was an immediate purpose rather than an ultimate purpose, but it is too late in the day to contend, at least in this Court, that the only type of purpose which may satisfy a description in s.45D(1)(b) is an ultimate purpose. The point was made in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 85; (1979) 27 ALR 367. In that case Bowen CJ, with whom Evatt J agreed, dealt with duality of purpose in this way, at p 374:

"Nevertheless, the fact that a union and its

members acting together have a union purpose

does not necessarily exclude the possibility

that they had, also, the purpose of causing

substantial loss or damage to the business of

a corporation. The statement of Evatt J in

McKernan v Fraser [1931] HCA 54; (1931) 46 CLR 343 is

apposite. His Honour in that case (at 403)

said: 'Sir Godfrey Lushington said, in

special reference to combined action against

employers or non-unionists on the part of

unionists, that to ask the question whether

they act to defend their own trade interests

or to injure their economic adversary for the

time being is equivalent to asking of a

soldier, who shoots to kill in battle, whether

he does so for the purpose of injuring his

enemy or of defending his country. The

analogy is sound because combined strike

action is usually undertaken for the purpose

both of causing harm to the employers and for

the improvement or maintenance of the

standards of unionists'."

"In the absence of any suggestion of a dominant

purpose of the type described in s.45D(3), it

suffices, in view of the provisions of

s.45D(2), that the purpose of causing

substantial loss or damage to the appellant's

business was a purpose, whether dominant or

subsidiary, of the respondents in engaging in

the relevant conduct."

27. The Full Court returned to the same question in the following year, in Transport Workers Union of Australia v Leon Laidely Pty Ltd [1980] FCA 25; (1980) 28 ALR 589. At p 594 Bowen CJ referred to the evidence on behalf of the respondent unions that the "sole purpose of the conduct of which complaint is made is to protect the employment of the workers of Amoco who are members of the Transport Workers Union". He commented:

"While it is understandable that the ultimate

purpose of the respondents, in taking the

action which they did, was to protect the

employment, the other evidence would support

an inference that their means of achieving

their object and, therefore, their immediate

purpose, was to cause Amoco to cease supply to

Leon Laidely. When Amoco did cease supply,

the men returned to work. It was common

ground that the respondents would have

appreciated that their action in causing Amoco

to cease supply to Leon Laidely would cause

substantial loss or damage to Leon Laidely.

However, it is pointed out that the purpose

referred to in s.45D(1) is the subjective

purpose of those who are engaging in the

conduct. It remains, therefore, to consider

whether the purpose of causing loss or damage

could be inferred to be one of their purposes.

Conduct may fall within s.45D(1) if it is one

of the purposes, even if it is not the

dominant purpose, of persons acting in concert

(s.45D(2)). The respondents could have called

out the drivers of Leon Laidely who were

Transport Workers Union members. They chose

to call out the Amoco drivers until Amoco

ceased the supply to Leon Laidely. There was

no evidence that they had any malice towards

Leon Laidely. But their purpose of causing

cessation of supply must, if carried out,

immediately cause the loss or damage in question."

28. The approach indicated in these cases has been expressly adopted by other members of the Court: see for example, per Lockhart J in Industrial Enterprises Limited v Federated Storemen and Packers' Union of Australia (1979) 2 ATPR 40-100 and per Smithers J in Wribass Limited v Swallow [1979] FCA 3; (1979) 38 FLR 92 at p 102. It has been implicitly adopted in numerous other cases. Conduct falling within the opening words of s.45D will rarely be adopted out of disinterested malice. Ordinarily, the purpose of inflicting damage upon the business of a person is to cause that person to modify its behaviour in some way for the advantage of the person occasioning the damage, or its members. In other words, the damage is a means to an end. Consequently, although a primary purpose of the milk vendors was to protect their own businesses, another purpose which they had was to damage or injure the appellant's business. That was the means by which they intended to achieve their primary purpose. Upon the view of s.45D(1) long accepted in this Court, that is enough.

29. That leaves the submission that there was no evidence or no sufficient evidence to establish that the respondents' actions caused, or would have been likely to have caused, substantial loss or damage to the appellant's business. In our opinion, that submission should be rejected. The appellant conducts a chain of supermarkets. Milk is one of the products which it sells. Customers who cannot obtain milk from a supermarket are likely to go elsewhere. Once they do, the result is likely to be, not only lost sales of milk, but lost sales of other products as well, all this leading to a likely reduction in turnover and profits.

30. In the result we would allow the appeal with costs. The form of the order which should be substituted for the order made by his Honour needs to be precisely formulated and we would propose that the matter be adjourned so as to enable counsel, on a day convenient to the Court and the parties, to bring in short minutes of order.

I regret to say that I do not share the opinion of Sheppard and Wilcox JJ. on the application of the provisions of s 45D of the Trade Practices Act 1974 to the facts as found by the learned primary judge.

2. In particular, I disagree that one can permissibly apply s 45D of the Trade Practices Act 1974 so that a primary boycott of a corporation by its suppliers is a secondary boycott by those suppliers of the customers of the corporation.

3. A direct interference with supply to a corporation almost inevitably affects the capacity of a corporation to supply its product to its customers. In my opinion, such a direct interference with supply to a corporation is not an interference with the supply by a corporation to its customers.

4. Section 45D of the Trade Practices Act 1974 has been a contentious provision and its intrinsic worth has been doubted: "Secondary Boycotts Under Attack: the Australian Experience" by Breen Creighton (1981) 44 Modern Law Review 489, particularly at 495-7. Two aspects in particular have created difficulties in the operation of the section.

5. The first of these is the drafting, in particular, the quadripartite structure of s 45D(1). In practice this has meant that, rather like a cryptic crossword, one has to sit down pen in hand and attempt to work out the various permutations and combinations of first, second, third and fourth persons in any particular factual circumstances. This case provides a graphic example of the consequences of that technique of drafting. The original application postulated five bases on which it was said that the milk vendors and the Association were in breach of s 45D. At the hearing before the learned primary judge, three of these bases were relied on. On the appeal, only one is relied on. In respect of the same manner of drafting in s 45D(1A), a Full Court of the Federal Court in Epitoma Pty. Ltd. v. A.M.I.E.U. [1984] FCA 202; (1984) 3 FCR 55, in respect to a submission that the style of drafting gave rise to the possibility of capricious and irrational results, held that, at the least, there was a serious question to be tried as to whether a literal construction, leading to such results, should prevail. The Court said at 60:-

"The respondents' second basis for challenging his

Honour's finding of a prima facie case under s

45D(1A) raises a question of construction. The

argument seeks to avoid the literal meaning of s

45D(1A) by resort to a 'purposive' construction.

In essence, the respondents fasten upon the

excepted relationship specified in the provision

'...a third person (not being an employer of that

first-mentioned person)...' as an indication that

the section is aimed at what are, in truth,

secondary boycotts; thus, the argument runs, if

the appellant were right, depending upon who is

selected, however arbitrarily, as the first and

second persons in s 45D(A1), it would be possible

to rotate personalities in a way which would avoid

the intended operation of the provision. In

short, the respondents say that a nonsensical

result would occur if the section meant that if,

on the one hand, A conspires with B, there would

be no contravention, whereas on the other, if B

conspires with A, a contravention would be

in Cooper Brookes (Woollongong Pty. Ltd. v.

Federal Commissioner of Taxation (1981) 147 CLR

297 at 320-321 to support the contention that a

literal construction of a statute will be departed

from if the result would be capricious and irrational.

Accepting, as we do, the decision and the

reasoning in Cooper Brookes' case we are not

persuaded that the construction contended for by

the appellant is capricious and irrational, quite

apart from the impact of s 45D(6). At all

events, it is both unnecessary and inappropriate

that we express any concluded view on this

question in an interlocutory appeal. Once it is

conceded that it was, at the very least, arguable

that a literal construction should prevail it

inevitably follows that there is a serious

question to be tried on this issue. To borrow the

language of Lord Diplock in Dimbleby's case

(Dimbleby & Sons Ltd. v. National Union of

Journalists (1984) 1 WLR 427), it is 'no part

of the court's function on an application for an

interlocutory injunction to decide difficult

questions of law which call for detailed argument

and mature consideration' at 436."

6. The second major area of difficulty is with the concept of "purpose". Both of these aspects arise in the present proceedings.

7. The facts concerning this litigation and the issues they raise are set out in the reasons of Sheppard and Wilcox JJ.

8. The position was that milk vendors, members of the Amalgamated Milk Vendors Association Inc. (the Association), voluntarily agreed to withhold supply of New South Wales pasteurised milk to stores operated by Jewel Food Stores Pty. Limited ("Jewel"), while those stores were selling Victorian milk.

9. His Honour found that Jewel could not obtain enough Victorian milk to meet all its requirements. He found that in the non-delivery to Jewel stores (except stores in Wagga Wagga and Queanbeyan) of New South Wales pasteurised milk between 6-13 August 1987, the individual milk vendors and the Association acted in concert. There is no appeal from that finding.

10. Confining the words of the sub-section to those on which the appellant now relies, the sub-section would read:-

"A person shall not, in concert with a second

person, engage in conduct that hinders or prevents

the acquisition of goods by a third person from a

fourth person where the fourth person is a

corporation and the conduct is engaged in for the

purpose, and would have or be likely to have the

effect, of causing substantial loss or damage to

the business of the fourth person."

11. In the facts of the present case, there is no relevant employer-employee relationship.

12. Such a prohibition has been contained in the section since the original s 45D was first enacted by Act No. 81 of 1977, where what is now a "fourth person" was referred to as "a corporation".

13. The appellant submits that each milk vendor is a "first-named person"; each other vendor, and the Association, is a second person; the customers of Jewel are "third persons" and Jewel is the "fourth person".

14. The appellant's submission is that the denial of supply by the milk vendors to Jewel hindered or prevented the acquisition of milk by Jewel's customers from Jewel. The appellant's argument, which finds favour with Sheppard and Wilcox JJ., is that the primary boycott of Jewel stores by the milk vendors constitutes a secondary boycott of Jewel's customers. That such was not the intention of the legislature seems to me to be implicit in the explanatory memorandum circulated by the Minister when s 45D was first introduced by the Trade Practices Amendment Bill 1977:-

"The Bill contains special provisions for the

prohibition of collective boycotts. Collective

primary boycotts (where the boycott seeks to

restrict the dealings of the parties with the

target person) are prohibited as 'exclusionary

provisions' (defined in new section 4D (clause 6))

- new section 45(2)(a)(i) and 45(2)(b)(i).

Collective secondary boycotts (where the boycott

seeks to restrict the dealings of persons, other

than the parties, with the target person) are

prohibited where they have or are likely to have a

prescribed effect - new section 45D."

15. The consequences of the conclusion by the majority would, in my respectful view, take the section where it was never intended to operate, and might, in suitable factual circumstances, have significant implications on industrial relations generally in this country. In particular, it would catch a primary boycott by self-employed persons such as the milk vendors in the present case, but would not extend to a withdrawal of labour by employees of a corporation because of the limitation that the fourth person not be an employer of the first-mentioned person.

16. A mechanistic matching of the "four persons" referred to in the section in the context of a primary boycott of a corporation by suppliers to the corporation tends to camouflage what really is the relevant "conduct", the relevant "goods" being acquired and the relevant connection between the conduct and the substantial loss or damage. It is necessary to identify with some precision what the relevant conduct is. In this case it is the non-delivery of New South Wales pasteurised milk by the milk vendors to a wholesaler acquirer of that milk, Jewel.

17. What are the relevant goods the acquisition of which is said to be prevented or hindered? Are the goods the acquisition of which is said to be hindered or prevented New South Wales pasteurised milk, Victorian pasteurised milk, or simply pasteurised milk regardless of its geographic origin?

18. The sole basis on which the appellants now assert a breach of s 45D is that the conduct of the milk vendors hinders or prevents "the acquisition of pasteurised milk by individual customers of Jewel (the third person) from Jewel (the fourth person). In this regard, the acquisition of pasteurised milk which is hindered or prevented includes the acquisition of pasteurised milk supplied to Jewel by the sixth respondents" (my emphasis). This, it seems to me, is an assertion by the appellants that the conduct of the milk vendors hinders or prevents the acquisition by customers of Jewel, of pasteurised milk of whatever origin.

19. The non-supply of New South Wales pasteurised milk does not hinder or prevent the acquisition of Victorian pasteurised milk by Jewel's customers, although the conduct is engaged in to persuade Jewel not ot acquire Victorian pasteurised milk.

20. Without New South Wales milk, Jewel cannot satisfy all its customers, because the supply of Victorian milk is in sufficient to satisfy the demands of all of Jewel's customers. The non-delivery of New South Wales milk has the consequence that some of Jewel's customers are not able to obtain pasteurised milk from Jewel; it also results in all of Jewel's customers not being able to obtain New South Wales pasteurised milk.

21. All that the non-supply of New South Wales pasteurised milk does is affect the capacity of Jewel to supply New South Wales pasteurised milk to its customers. So, it seems to me, it is only the acquisition of New south Wales pasteurised milk which might possibly be hindered or prevented.

22. If the appellant's case can properly be regarded as an assertion that the conduct of the milk vendors hinders or prevents the acquisition by Jewel's customers of New South Wales pasteurised milk, (a matter not the subject of submissions, and one about which I have serious reservation), does that interference have the effect of causing substantial loss or damage?

23. In my opinion the customers of Jewel are concerned to acquire pasteurised milk independently of the geographic origin of that milk. Customers of Jewel would be concerned with the quality and price of the pasteurised milk purchased from Jewel, and would not chauvinistically be concerned with the state of origin of the cows which produced it. That being so, any loss or damage to Jewel is occasioned by the fact that Jewel cannot obtain enough non-New South Wales pasteurised milk; it is not because it cannot obtain any New South Wales pasteurised milk. The non-delivery of New South Wales milk is the causa sine qua non of the difficulties experienced by Jewel's customers. The inadequacy of alternative supplies of pasteurised milk is the causa causans of the difficulties of Jewel's customers in acquiring pasteurised milk.

24. The section requires that the non-delivery of New South Wales milk to Jewel be likely to have the effect of causing substantial loss or damage to the business of Jewel. I note at this stage the unhappy phrasing "likely to have the effect of causing". I take this simply to mean "likely to cause". There are in truth two transactions. First, there is the wholesale supply of New South Wales pasteurised milk by the milk vendors to Jewel. The second transaction is the retail sale of pasteurised milk from whatever source by Jewel to the customers of Jewel In my opinion, the first does not hinder or prevent the second.

25. In Cole v. Whitfield [1988] HCA 18; (1987-1988) 165 CLR 360, the Full High Court, in a joint judgment, substantially embraced the "free trade" approach to the interpretation of s 92 of the Constitution and overthrew the "criterion of operation" formula for the interpretation of s 92, which doctrine had its origins in O. Gilpin Ltd v. Commisssioner for Road Transport and Tramways (NSW) [1935] HCA 8; (1935) 52 CLR 189 at 205-6. The Court in Cole said, at 401:-

"The doctrine is highly artificial. It depends on

the formal and obscure distinction between the

essential attributes of trade and commerce and

those facts, events or things which are

inessential, incidental, or, indeed, antecedent or

preparatory to that trade and commerce. This

distinction mirrors another distinction, equally

unsatisfactory, between burdens which are direct

and immediate (proscribed) and those that are

incorrect, consequential and remote (not proscribed)."

"In a context in which the doctrine was seen as

supporting a constitutional guarantee of the right

of the individual to engage in interstate trade,

it scarcely seemed to make sense to say that

production for the purpose of trading interstate

with the product: (Grannall v. Marrickville

Margarine Pty. Ltd. [1955] HCA 6; (1955) 93 CLR 55: Beal v.

Marrickville Margarine Pty. Ltd. (1966) 114 CLR

283. and importation of aircraft with which to

engage in interstate air transportation (Reg. v.

Anderson; Ex parte Ipec-Air Pty. Ltd. (1965) 113

CLR 177: Ansett Transport Industries (Operations)

Pty. Ltd. v. The Commonwealth [1977] HCA 71; (1977) 139 CLR 54)

fell outside the constitutional protection on the

ground that the relevant activities were not

essential attrivutes of interstate trade. The same

comment may be made about Damjanovic & Sons Pty.Ltd.

v. The Commonwealth [1968] HCA 42; (1968) 117 CLR 390...In each of

these cases, the legislation affected interstate

trade in a substantial way, yet, because the

effect was indirect or consequential, s 92 had no

application."

26. Yet notwithstanding that criticism by the Court of the approach to s 92 in the Grannal, Beal and Ipec cases, it seems to me that it is still valid to inquire whether an interference at one point in a series of intended transactions amounts to a prevention or hindrance of a later transaction in the series. There is the old nursery rhyme telling how for want of a nail a kingdom was lost. Is it right to say that a person who refuses to supply a farrier with a nail, by that conduct interferes with the defence of the realm?

27. In my respectful opinion, even after Cole v. Whitfield (supra), the prohibition on the importation of an aircraft does not hinder or prevent interstate air freight, and the refusal to supply New South Wales pasteurised milk to Jewel does not hinder or prevent the sale of pasteurised milk to Jewel's customers.

28. The learned primary judge, in rejecting the present submission of the appellant as constituting a breach of s 45D(1) said:-

"To treat the actions of the milk vendors as

conduct that hindered or prevented the acquisition

of milk by customers of Jewel stores is to look

beyond the direct effect of those actions upon

supply to the stores, and to take account of an

indirect or ultimate effect upon the availability

of milk to the customers of the stores."

"...45D(1) deals separately with supply of goods or

services to a 'fourth person' and acquisition of

goods or services from a 'fourth person'. It

would be inconsistent with the structure and

evident intent of the provisions to treat an

interference with supply to the applicant, not

under that part of the provision which deals with

supply to it, but as an indirect interference with

acquisition from it. But it would be quite

anomalous if such an approach could lead to

liability for the indirect effect in a case (such

as the present) where the terms of the legislation

exclude liability for the direct effect. In my

opinion, s 45(1) contemplates two levels of

activity, supply to a corporation of its

requirements, and supply by it to its customers;

and the subsection makes separate provision for

interference by a secondary boycott at each of

those levels. In neither case, does that

provision extend to indirect consequences at the

other level."

30. Next, it is necessary that the relevant conduct be engaged in for the purpose of causing substantial loss or damage to the business of Jewel.

31. The argument for the appellant proceeds along these lines: it must have been obvious that the concerted conduct by the milk vendors would cause damage to the business of Jewel. A person intends the natural consequences of his act and the natural consequences of the non-delivery of New South Wales pasteurised milk to Jewel was that Jewel would suffer substantial loss or damage, therefore the milk vendors intended to cause substantial loss or damage to Jewel and it can therefore be said that at least one of the purposes for which the conduct was engaged in was the causing of substantial loss or damage to Jewel. The submission, equating fore-knowledge with intention, and intention with purpose, is routinely made and seems routinely to have been accepted.

32. First, as the so-called presumption that a person intends the natural consequences of his act, a proposition not infrequently encountered in this type of proceedings (see eg Epitoma v. A.M.I.E.U., supra at 59,) it is well to remember the observations of the High Court (Dixon CJ, Webb and Kitto JJ.) in Stapleton v. the Queen [1952] HCA 56; (1952) 86 CLR 358 at 365:-

"The introduction of the maxim or statement that a

man is presumed to intend the reasonable

consequences of his act is seldom helpful and

always dangerous. For it either does no more than

state a self evident proposition of fact or it

produces an illegitimate transfer of the burden of

proof of a real issue of intent to the person

denying the allegation."

After the judgment of the House of Lords in Director of Public Prosecutions v. Smith (1961) AC 290, where it was held that the only thing that can rebut the presumption that a man intends the natural and probable consequences of those acts is proof of incapacity to form an intent, insanity or diminished responsibilty, Dixon CJ, in Parker v. The Queen [1963] HCA 14; (1962-63) 111 CLR 610, with the concurrence of all the other members of the Court, said at 632:-

"There are propositions laid down in the judgment

which I believe to be misconceived and wrong.

They are fundamental and they are propositions

which I could never bring myself to accept...

I wish there to be no misunderstanding on the

subject. I shall not depart from the law on the

matter as we had long since laid it down in this

Court and I think Smith's Case (1961) AC 290

should not be used as authority in Australia at

all."

33. More importantly in the present case, "intention" is not "purpose", and it is wrong to treat the concepts as interchangeable. The section does not require simply that the conduct be engaged in with the intention of causing substantial loss or damage; and it is wrong to equate a finding of the existence of that intention to a finding that the conduct was engaged in for the purpose of causing substantial loss or damage.

34. It is true that the effect of s 45D(2) and para. 4F(b) is that a person is deemed to have engaged in conduct for a particular purpose if the person engaged or engages in the conduct for purposes that included or include that purpose and that purpose was or is a substantial purpose. Those provisions recognise that persons can engage in conduct for a number of purposes. If logically a distinction is properly to be maintained between means and ends, it is, I believe, wrong to characterise the means by which a prupose is sought to be achieved as a co-existing purpose.

35. It is possible to envisage a special case in which one of the purposes for which conduct is engaged in is the purpose of causing substantial loss or damage. If in truth one of the objects of the activity is to cause damage, as could be the case where the person is actuated by malice, one might be entitled logically and fairly to characterise one of the purposes as a purpose of causing substantial loss or damage. In most cases, however, the causing of damage, while foreseeable and foreseen if the actor turned his or her mind to it, will be the means by which the purpose of the activity is sought to be achieved, and the causing of substantial loss or damage will not be the purpose or one of the purposes for which the conduct is engaged in.

36. It is to be noted that there is a significant lack of symmetry between the positions of persons who are employees and persons who are not employees. Section 45D(1B) provides that it is a defence if the defendant proves that the dominant purpose of the defendant engaged in conduct amounting to a contravention of sub-section 45D(1A) was to "preserve or further a business carried on by him". That defence is not available where the conduct amounts to a contravention of s 45D(1)(b). Moreover, the requirement in 45D(1) that the fourth person not be an employer of the first-mentioned person, cannot apply where the first or second persons are not employees but independent contractors supplying the fourth-mentioned person.

37. Next, s 45D(3), providing that a person shall not be taken to contravene or to be involved in a contravention of sub-section (1) or (1A) by engaging in conduct where the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of that person or anther person employed by an employer of that person, speaks of "the dominant purpose".

38. That provision in no way mitigates the obligation of an applicant ot establish, if it can, that conduct alleged to be a contravention of s 45D(1) was engaged in for the purpose of causing substantial loss or damage or that one of the purposes for which the conduct was engaged in eas the purpose of causing substantial loss or damage. It is only after that has been established that consideration of what is "the dominant purpose" may arise.

39. It has to be said also that the dominant purpose of which s 45D(3) speaks is confined to issues which seem solely to arise in the employer/employee relationship. It seems to me surprising that if the dominant purpose for which the defendant engaged in conduct was to preserve or further a business carried on by him, that can afford a defence to a contravention of s 45D(1A) but not a defence to s 45D(1)(b). This is a further consideration, in my view, for holding that s 45D(1)(b) does not apply in the factual circumstances of this case.

40. As to the findings by the learned primary judge as to purpose, his Honour said:-

"It must have been obvious that action of this kind

could only be effective if it was concerted; but

if it was concerted, it could have a severe impact

on the applicant."

41. Having found that the applicant failed in each of its attacks under s 45D(1) for reasons with which I respectfully agree, his Honour, in considering the application of s 45D(1A) said:-

"It is clear the purpose was to prevent the

applicant who is not an employer of any of the

respondents, from selling Victorian milk through

its stores. That, in the circumstances, was the

likely effect."

"I am satisfied...that the dominant purpose for

which each of the sixth respondents engaged in the

conduct concerned was to preserve his business as

a milk vendor. I do not think there is any doubt

about this conclusion.

42. In Nauru L.G.C. v. A.S.O.A [1978] FCA 37; (1978) 27 ALR 535 Northrop J. said at 544, in a lengthy passage which bears repeating:-

"Difficulties arise in proving a purpose for which

a person engages in particular conduct. There may

be many purposes activating that person, but under

s 45D(2) if one of the purposes is that

proscribed by s 45D(1) than that person

contravenes the section. It may be said that a

person intends the natural consequences of his

acts and that accordingly if, as a necessary

effect of conduct engaged in for a purpose,

substantial loss or damage is caused, then, of

necessity, that conduct is engaged in for purposes

including a purpose of causing substantial loss or

damage. In my opinion, such a conclusion does not

follow. The plaintiff carries the onus of proof,

albeit on the balance of probabilities and albeit

to establish a prima facie casr in the sense

already described. There is no provision by which

the onus is shifted to the defendants: cf s 5(4)

of the Conciliation and Arbitration Act. It is

well to remember the words of Viscount Cave L.C.

in Sorrell v. Smith (1952) AC 700; (1925) All

ER Rep 1. An issue in that case was whether a

combination of two or more persons for the purpose

of injuring a man in his trade was unlawful and,

if resulting in damage to him, was actionable.

The Lord Chancellor said (AC at 715): 'That the

defendants combined in a proceeding, the necessary

effect of which would have been to injure the

plaintiff in his trade unless he submitted to

their conditions, may be assumed; but did they do

so for the purpose of injuring the plaintiff in

his trade, or was it their purpose and object to

forward or defend their own trade? I am satisfied

that the latter is the true view. The learned

trial judge found as a fact that the defendants

were not actuated by any spite against the

plaintiff or by any intention or desire to injure

him. Their purpose was to defeat the 'distance

limit policy' of the retail federation, which they

considered injurious to the free sale of their

newspapers; and because the plaintiff, at the

instance of the retail federation and in concert

with them, was endeavouring to forward that policy

by withdrawing his custom from Ritchie's, the

defendants, as a counter move, declined to supply

Watson's with papers which they could hand on to

the plaintiff. Both moves were episodes in a

trade war which was being waged between the

retailers of newspapers on the one hand and the

producers and wholesalers on the other, and were

adopted in the supposed interests of one or the

other side. Stroke and counter stroke, whether

wise or not, were equally prompted by a desire

to forward or protect trade interests. The plaintiff

struck the first blow, and when it was countered

by a similar blow struck by the defendants ran to

the court for protection. His attitude recalls

the saying of a French author: 'Cet animal est

tre mechant; quand on l'attaque, il se

defend.' ("This animal is very dangerous; when

attacked it defends itself.") Apparently he

forgot that if the defendants were acting

illegally then so was he, and that if he was

acting illegally a court of equity would hardly be

disposed to help him. I think that in this case

it was proved that the defendants took action for

the sole purpose of protecting their own trade,

and accordingly that they have not committed or

threatened to commit any wrong and are not liable

to any proceedings.: see also McKernan v. Fraser

[1931] HCA 54; (1931) 46 CLR 343, per Evatt J. at 371."

43. These observations may be contrasted with those of Beaumont J. in Chevron Transport Corporation v. Seamen's Union of Australia [1983] FCA 188; 49 ALR 180 at 184. Beaumont J. there said:-

"In the present case, however altrustic the

original motives of the respondents may have been,

I am satisfied that the applicant has established

a prima facie case that the respondents intended

the natural consequences of their action in

imposing the bans and that those consequences were

the occasioning of significant financial loss to

the applicant. In my opinion, that loss could

fairly be characterized as substantial in the case

of a large oil tanker. Even if one accepts that

the ultimate objective of the repondents may have

been the improvement of the working conditions of

the seamen, the applicant has made out a prima

facie case that the means to that end chosen by

the respondent was the imposition of bans which

were designed to harm the applicant. The

applicant has thus established a prima facie case

of a contravention of s 45D(1)."

I respectfully cannot acept that if the means to an end which were adopted by the respondent was the imposition of bans which were designed to harm the applicant, that establishes that the conduct was engaged in for the purpose of causing substantial harm or damage.

44. In this context, reference is invariably made to the observations of Evatt J. in McKernan v. Fraser [1931] HCA 54; (1931) 46 CLR 343 at 403, where he said:-

"Sir Geoffrey Lushington said, in special reference

to combined action against employers or

non-unionists on the part of unionists, that to

ask the question whether they acted to defend

their own trade interests or to injure their

economic adversary for the time being, is

equivalent to asking of a soldier who shoots to

kill in battle, whether he does so for the purpose

of injuring his enemy or of defending his country.

The analogy is sound, because combined strike

action is usually undertaken for the purpose, both

of causing harm to the employers and for the

improvement or maintenance of the standards of the

unionists. As Lord Sumner said in Sorrell v.

Smith (1925) AC at p 734: 'All well planned

and successful commercial actions of this kind

must prejudically affect the rival and is intended

to do so.' Such is the commencing and not the

finishing point of the relevant inquiry."

45. What must be remembered is Evatt J.'s interchangeable use of "intention" and "purpose", as his observations at 399,400 and 401 indicate. At 401, for instance, his Honour said:-

"Before the defendants can be held liable, we must

ascertain the object or motive of the combination

beyond the immediate intention or purpose of

inflicting injury."

In that action for, inter alia, conspiracy to injury the plaintiffs, the High Court determined the judgment should have been given for the defendant. The basis for the finding of the majority is reflected in the observations of Dixon J., as he then was, at 362:-

"It appears now to be settled that, for a

combination or acts done in furtherance of the

combination to be actionalbe in such

circumstances, the parties to the alleged

conspiracy must have been impelled to combine, and

to act in pursuance of the combination, by a

desire to harm the plaintiff, and that this must

have been the sole, the true, or the dominating,

or main prupose of their conspiracy. At any rate

so I understand the doctrine which has slowly won

its way to final acceptance by the House of Lords

(Sorrell v. Smith (1925) AC 700).) To adopt a

course which necessarily interferes with the

plaintiff in the exercise of his calling, and thus

injures him is not enough. Nor is it enough that

this result should be intended if the motive which

actuates the defendants is not the desire to

inflict injury but that of compelling the

plaintiff to act in a way required for the

advancement or for the defence of the defendants'

trade or vocational interests."

Evatt J. said at 404 of McKernan and those acting with him that:

"Their intention and purpose was to carry out their

Union's policy against each and every member who

was engaged in the attempt to destroy it."

(My underlining)

"The combination was not imbued with 'independent

malevolence' (Lord Sumner's expression) or

'disinterested malevolence' (the quotation of

Cardozo CJ). No doubt the combination had an

'animus' against the opposing group, and wished to

'punish' or 'discipline' them. But the resentment

and indignation of McKernan and those joined with

him against Fraser, Stapleton and all the members

of the rival Union were intimately bound up with

their sentiment of loyalty to their trade

organization.

This conclusion would be sufficient to dispose of

the cause of action against McKernan based upon

'conspiracy to injure'."

47. If a person were to shoot another person who was attacking him, the intention of the first person would be to kill or disable the attacking person, but the purpose of the first person would be to protect himself. It is, in my respectful view, a misuse of language to say that the means by which an objective is pursued is a "primary' purpose, and the objective being pursued a "secondary" purpose.

48. In Tillmans Butcheries Pty. Ltd. v. A.M.I.E.U. [1979] FCA 85; (1979) 27 ALR 367, Bowen CJ., Having referred to the statement of Evatt J. in McKernan v. Fraser (supra) said at 374:-

"Evidence in the case before us leads, in my view,

to the conclusion that the respondents knew that

the only pressure that would be effective against

Tillmans was the prospect of actuality of loss or

damage. To cause it was one of their purposes."

If this is regarded as a finding of fact, it is unexceptionable. If it purports to equate knowledge of consequences with purpose, I respectfully disagree. And Deane J. said at 382:-

"The purpose referred to in s 45D(1) is the

operative subjective purpose of those engaging in

the relevant conduct in concert."

"...the question to be answered in determining

whether conduct was engaged in for a 'purpose'

mentioned in s 45D(1) of the Act is, to adopt the

words of Viscount Simon L.C. in Crofter Hand Woven

Harris Tweed Co. Ltd. v. Veitch [1941] UKHL 2; (1942) AC 435 at

444-5, to be answered not by reference to whether

it was appreciated that the relevant conduct might

have the specified effect but by reference to the

real reason or reasons for, or the real purpose or

purposes of, the conduct and to what was in truth

the object in the minds of the relevant persons

when they engaged in the conduct in concert. In

so far as the Union was concerned, its purpose

must, of course, be determined by reference to the

purpose of those through whom it acted."

While his Honour said that the black ban in that case "was plainly imposed as a means of bringing pressure to bear upon the appellant..., (t)he point and purpose of the respondents' imposing and procuring observance of the black ban was that it would cause substantial loss or damage to the appellant's business..."

49. If, as is usually the case, the result of concerted action is the causing of damage to the target, it does not at all follow that at least one of the purposes for which the conduct was engaged in was the causing of damage. This approach, which attributes as a purpose that which frequently is not a purpose but a means, is to be contrasted with the true position as indicated by Viscount Simon L.C. in Crofter Hand Woven Harris Tweed Company Limited v. Veitch [1941] UKHL 2; (1942) AC 435.

"The question to be answered, in determining

whether a combination to do an act which damages

others is actionable, even though it would not, be

actionable if done by a single person, is not 'did

the combiners appreciate, or should they be

treated as appreciating, that others would suffer

from their action, but 'what is the real reason

why the combiners did it?' Or, as Lord Cave puts

it, 'what is the real purpose of the combination?'

The test is not what is the natural result to the

plaintiffs of such combined action, or what is the

resulting damage which the defendants realize or

should realize will follow, but what is in truth

the object in the minds of the combiners when they

acted as they did.. It is not consequence that

matters, but purpose; the relevant conjunction is

not (illegible) so the ...' but (illegible) in order that'.

Next, it is to be borne in mind that there may be

cases where the combination has more than one

'object' or 'purpose'. The combiners may feel

that they are killing two birds with one stone,

and, even though their main purpose may be to

protect their own legitimate interests

notwithstanding that this involves damage to the

plaintiffs, they may also find a further

inducement to do what they are doing by feeling

that it serves the plaintiffs right. The analysis

of human impulses soon leads us into the quagmire

of mixed motives, and even if we avoid the word

'motive', there may be more than a single

'purpose' or 'object'."

It is only when there is this further element, which may fairly be identified as "independent malevolence" or "disinterested malevolence", to use the expressions quoted by Evatt J. in McKernan (supra), that it might properly be said that one of the purposes was to cause substantial loss or damage.

51. In this case in determining "purpose", what the vendors did was done in order that Jewel would desist from dealing in Victorian milk; it was not done in order that substantial loss or damage would be caused to Jewel. In my opinion, the conduct of the milk vendors was not engaged in for the purpose of causing substantial harm or damage to Jewel nor was that a purpose for which the conduct was engaged in.

52. For each of the reasons that the conduct of the milk vendors did not prevent or hinder the acquisition of goods from Jewel, that that conduct did not have the effect or was likely to have the effect of causing substantial damage to Jewel and that that conduct was not engaged in for the purpose of causing substantial loss or damage to Jewel, nor was that one of the milk vendors' purposes, I would dismiss the appeal with costs.