Tillmanns Butcheries Pty Ltd v The Australasian Meat Industry Employees Union & Ors [1979] FCA 132

Federal Court of Australia|1979-07-01|Before: Deane JJ

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Trade Practices - Secondary boycott - Conduct hindering or preventing supply of goods - Whether conduct engaged in for purpose of causing substantial loss or damage -

Whether likely to have the effect of causing substantial

TILLMANNS BUTCHERIsPTY. LIMITED v. THE AUSTRALASIAN MEAT

INDUSTRY EMPLOYLCES UNION, THE AUSTRALASTAN NEAT TNDUSTRY EMPLOYELS UNION N.S.W. BRANCH, ALAN SHER™OCK, TOMAS NCBLE, THOMAS HANNAN, FREDERICK HANKINSO. anG RECINALD SCHOF =LD

and THE AUSTRALASIAN MEAT INDUSTRY EMPLOYZSES UNION, SoA

SHERLOCK, THOMAS HANNAN, FRODTRICK HANAKINSON and REGINALD SCHOFIELD v. TILLMANNS BUTCHDRILS PTY. LIMITED

) NEW SOUTH WALES DISTRICT REGISTRY) N.S.W. No. G156 of 1978

AND: THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, THE AUSTRALASIAN MEAT INDUSTRY EMPLOYLES UNION N.S.W. BRANCII], ALAN SHERLOCK, THOMAS NOBLE, THOMAS HANNAN, FREDERICK HANKINSON and REGINALD SCHOFIELD

THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, ALAN SHCURLOCK, THOMAS HANNAN, FREDERICK HAN<INSON and REGINALD SCHOFIELD

ORDER JUDGES MAKING ORDER: Bowen C.J., Evatt and Deane JJ. DATE OF ORDER: [ O8CEMBER 19-79

The appeal against the first, third, fifth, sixth and seventh respondents be allowed.

The cross appeal of those respondents be dismissed. The appeal against the second respondent be dismissed. The first respondent its servants and agents and the third, fifth, sixth and seventh respondents be restrained from imposing, giving effect to, or enforcing any ban on the slaughtering of livestock

for the appellant at the abattoirs of Canberra Abattoir Pty. Limited at Canberra or of Conkey & Son Limited at Cootamundra or the delivery of meat by such abattoirs to the appellant where any such ban has the purpose and would have or be likely to have the effect of causing substantial loss or damage to the business of the appellant of a wholesale and retail butcher at Canberra or Queanbeyan unless such ban has as its dominant purpose one of the purposes referred to in sub-s.45D(3) of the Trade Practices Act 1974 as amended.

The first, third, fifth, sixth and seventh respondents pay to the appellant the costs of the appeal and the cross appeal.

The appellant pay to the second respondent its costs of the appeal.

The first, third, fifth, sixth and seventh respondents pay to the appellant one-third of its costs of the proceedings before the trial Judge.

The appellant pay to the second respondent and to the respondent Thomas Noble their respective costs of

) NEW SOUTH WALES DISTRICT REGISTRY) N.S.W. No. Gi56 of 1978

\ THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, THE AUSTRALASIAN MEAT INDUSTRY EMPLOYESS UNION N.S.W. BRANCH, ALAN SHERLOCK, THOMAS NOBLE, THOMAS HANNAN, FREDERICK HANKINSON and REGINALD SCHOFIELD

THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, ALAN SHFRLOCK, THOMAS HANNAN, FREDERICK [ANKINSON and REGINALD SCHOFIELD

BOWEN C.J.: This iS an appeal against the judgment of a single Judge of the Federal Court of Australia in which the applicant, Tillmanns Butcheries Pty. Limited ("T1llmanns") failed to establish a case for a final injunction and

damages under ss.80 and 82 in relation to s.45D of the Trade

Practices Act (hereafter referred to as "the Act"), The applicant had alleged that the Australasian Meat Industry Employees' Union ("the AMIEU"), a number of its organisers and the New South Wales Branch of the Union acted in concert to hinder or prevent supplies of meat to Tillmanns in breach of s.45D.

Tillmanns is conducting this appeal against the first, third, fifth, sixth and seventh of the original respondents, having no argument with the finding of the trial Judge that no case was made out against either the New South Wales Branch of the AMIEU or Mr. Thomas Noble.

Counsel for Tillmanns formally indicated that he would be contesting the whole of the balance of his Honour's judgment, however, he informed the Court that in fact he would not be seeking damages but only a final injunction under s.80.

The material part of para.45D(1)(a) of the Act upon which Tillmanns relies requires proof of a number of elements before breach of the section can be established:-

Their conduct must hinder or prevent the supply of goods or services by a third person to a corporation;

The conduct must be engaged in for the purpose of causing substantial loss or damage to the business of the corporation;

The conduct must be such that it would have or be likely to have the effect of causing substantial loss or damage to the business of the corporation.

Conduct does not fall within the section if it was engaged in by employees of the subject corporation or was primarily for a purpose related to remuneration, conditions of employment, hours of work, working conditions or termination of the employment of employees.

Section 80 empowers the Court to grant an injunction restraining conduct that constitutes or would constitute a contravention of s.45D (para.80(1)(d)); attempting contravention (para.80(1) (e)); aiding, abetting, counselling or procuring contravention (para.80(1)(€)); inducing or attempting to unduce contravention (para.80(1)(g)); being directly or indirectly knowingly concerned in contravention (para.80(1)(h)); or consplring with others to contravene s.45D.

On 20 December 1977 Tillmanns sought an order nisi and interim injunctions restraining the respondents in the above terms. An order nisi was made returnable on 3 dJanvary 1978

and injunctions were granted to operate up to and including

that date. However, on 29 December 1977 the terms of these injunctions were amended to simply restraining the respondents from conduct hindering or preventing supply of meat to Tillmanns with the mandatory rider that they take such action as was within their power and necessary to ensure that supplies of meat were restored by 30 December 1977. These latter injunctions were continued after 3 January until the final hearing of the matter in November 1978.

In November 1978 the learned trial Judge came toa the conclusion that the first, third, fifth, sixth and seventh respondents "in concert engaged in conduct that prevented the supply of goods by Canberra Abattoir Pty. Ltd. to the Plaintiff Co." He did not expressly decide that the respondents had the relevant purpose, though his judgment 1s not inconsistent with the view that they did have it. He declined to find that their conduct had the relevant effect.

At the trial the case for Tillmanns was slanted heavily towards proving actual substantial loss or damage and the trial Judge quite rightly found that "the only evidence of loss or damage adduced was inconclusive and scanty".

Counsel for Tillmanns before us took issue with the

learned trial Judge's statement in relation to his refusal

"In my view the plaintiff Company 1s not entitled to argue that the conduct would be likely to cause substantial loss where the means of proving whether in fact it did cause substantial loss is in its power."

Counsel submitted that his Honour had misconstrued the section and in fact a party could elect to bring his case for an injunction in either or both of two ways; namely, by proving actual substantial loss or damage or the likelihood of substantial loss or damage.

It is not entirely clear what his Honour meant by his reference to the applicant not being "entitled to argue". The section appears to permit a claim for an injunction to be based on proof either of the likelihood of damage or on the proof of damage. Perhaps his Honour had in mind the principle that where the facts are available they are to be

preferred to prophecies (Willis v. The Commonwealth (1946)

73 C.L.R. 105 at p.116) or as was claimed by Counsel for the respondents it may have been the way in which the case was conducted that influenced his Honour to say this. the statement of claim in paragraph 14 claimed as a result of the action taken not that Tillmanns was likely to suffer loss or damage to its business, but that 1t had suffered loss . of damage to its business, although paragraph 17 is in more general terms alleging a contravention of s,45D. In the course of the trial when opening the case, Counsel for Tillmanns stated that he expected that the evidence would be that the applicant's business was very seriously interfered with from 9 December 1977 and through the Christmas period and that it suffered substantial loss financially. In other words, it was suygested that the case made for Tillmanns was

actual damage and not likelihood of damage. It may be, of

course, that the case for Tillmanns was stated in this way Since 1t waS claiming damages and that it still intended to rely upon the likelihood of damage as a basis for its claim for an injunction.

I do not consider that Tillmanns in claiming an injunction at the trial was precluded from relying upon the likelihood of substantial loss ov damage, if 1t could prove it. Although the quoted statement of the learned trial Judge leaves some doubt in my mind, I think it should be taken from the whole of his judgment that his Honour concluded on the facts that Tillmanns had failed to prove either substantial loss em damage or the likelihood of substantial loss orf damage. On the appeal the main argument advanced for Tillmanns was that the likelihood of substantial loss of damage had been established and that an injunction should have been ordered.

This 1S not a question which turns upon the credibility of witnesses, The question for us 1S One On which, giving respect and weight to the conclusion of the trial Judye, we

are obliged to reach our own conclusion (Warren v. Coombs

The evidence before the trial Judge was that a Mr. Sherlock and a Mr. Noble representing the AMIEU entered Tillmanns' shop at 57 Crawford Street, Queanbeyan at 8.00 a.m. on 9 December 1977. They asked to see the employees. This request was refused by Mr. Tilimann, the Managing

Director of Tillmanns, as 1t was neither the smoko nor the

lunch time. Mr. Sherlock persisted, making it plain his business was to unionise Tillmanns employees. He was restrained and retaliated by telling Mr. T1llmann he would black ban the shop. He then proceeded to a telephone booth, appeared to make a call, returned and confirmed that Tillmanns shops were now black banned.

Shortly afterwards, according to Mr. Ramsay, the Manager of Canberra Abattoir Pty. Limited ("Canberra Abattoir"), Messrs. Sherlock and Noble conducted a meeting of AMIEU members at the Canberra Abattoirs with his consent. As a result of this meeting, Mr. Ramsay, was informed by Mr. Sherlock that, 1n Mr. Ramsay's words:

carcasses of meat so contained in our chillers were

slaughter animals for him this meatworks would stop

At that time Canberra Abattoir held for Tillmanns 32 live cattle awaiting slaughter and the carcasses of 20 head of cattle and 17 pigs which were held in its chiller. Mr. Ramsay gave further evidence that he put 10 of Tillmann's cattle on the killing list for the next day but that they were not killed. Thereafter until 28 December he did not put forward any cattle of Tillmanns for slaughter for the

reason that he did not want to antagonise the men and have

Evidence was given by two industrial officers of the

Meat and Allied Trades Federation of Australia (New South

Wales Division) of conversations they had had with two of the respondents, Mr. Schofield and Mr. Hannan, On 12 December 1977 Industrial Officer William Patterson spoke to Mr. Schofield who said:

Mr. Martin Iffland, the other Industrial Officer, had a conversation with Mr. Hannan on 13 December in which Mr. Hannan said:

Martin, if any of the other butchers get meat for him they will be black banned too."

Mr. Philip Ryan, the Personnel and Industrial Officer at Conkey & Sons Ltd., the owners of an abattoir at Cootamundra, also deposed to a conversation he had had with Mr. Hannan on 9 December 1977. Mr. Ryan said he was unformed by Mr. Hannan of a ban on Tillmanns and that he was told not to supply Tilimanns. He agreed to that. Ilowever, there was no satisfactory evidence as to whether cattle were actually slaughtered or supplied by Conkeys for Tillmanns. The evidence suggested no slaughtering had been done for Tillmanns for some months. No further evidence was called

in relation to supplies from other abatto1rs in the area.

There was evidence that approximately one week after the ban had been imposed, a quantity of Tillmann's meat which had been in Canberra Abattoir's chillers since before the ban, was released to avoid further deterioration. The meat was released after consultation between Mr. Ramsay and the AMIEU representative at the Canberra Abattoir.

The first question 1s whether the first, third, fifth, sixth and seventh of the original respondents in concert with each other engaged in the conduct 1n question. Acting in concert involves knowing conduct, the result of communication between the parties and not simply Simultaneous actions occurring spontaneously. There 1S ample evidence to support the finding of the trial Judge that they acted in concert.

The next question is whether their conduct hindered or prevented the supply of goods or services to Tillmanns. 'The scope of-"engaging in conduct" 1s widened by sub-s.4(2) of the Act. It 1s to be read as a reference, amongst other things, to doing or refusing to do any act, including the arriving at, or the giving effect to a provision of an understanding (para. 4(2)(a)). A reference to conduct, when that expression is used aS a noun otherwise than as Mentioned in para. 4(2)(a), 18 to be read as a reference to the doing of or the refusing to do any act, including, amongst other things, the arriving at or the giving effect to a provision of, an understanding (para. 4(2)(b)). A

reference to refusing to do an act includes a reference to

refraining (otherwise than inadvertently) from doing that act or making it known that the act will not be done (para. 4(2)(c)).

The evidence pointed to at least an understanding between Mr. Sherlock and the Canberra Abattoir members of the AMIEU that Tillmanns was to be "black banned". Mr. Iffland's and Mr. Patterson's evidence indicated that the ban was much wider and extended to all members of the AMIEU. Mr. Iffland's evidence of a conversation with Mr. Hannan showed that Mr. Hannan, on behalf of the union, intended to enforce that ban in other abattoirs and butcher shops. At Canberra Abattoir, T1illmanns cattle were put on the killing list but not killed, which evidence may lead to an inference that the employees who were members of the Union either refrained from dealing with those beasts or indicated that the threat of a strike was not an empty one. This conduct and the 'forced retention of the slaughtered beasts hindered or prevented the supply of meat from Canberra Abattoir to Tillmanns. Even though meat that had been held in the chillers there had been released to Tillmanns after about a week, cattle of the Company that were intended for slaughter in December were not killed until after 28 December,

In my opinion the proper conclusion from the evidence 1s that there was "conduct" by the respondents in terms of the definition which hindered or prevented the supply of goods

There was also "conduct" on the result of which the evidence 1S equivocal in terms of hindering or preventing supply from other sources.

The next question 1s whether the conduct was engaged in for the purpose of causing substantial loss or damage to the business of Tillmanns. To constitute a contravention of s.45D the purpose of causing substantial loss or damage must exist. However, it may be only one of the purposes of tne respondents and need not necessarily be the dominant one for the section to apply (sub-s.45D(2)).

The trial Judge did not go into purpose as a separate Matter. The proscribed purpose may be difficult to prove as an independent matter especially where the dominant purpose of the ban is to extend union membership or further union interests,

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 ac damage to the business of a

corporation, The statement of Evatt J. in McKernan v.

Fraser (1931) 46 C.L.R. 343 is apposite. H2zs Honour in that

unionists on the part of untonists that to ask the question whether they acted to defend their own

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 1s sound because combined strike action ts usually undertaken for the purpose both of causing harm to the employers and for the improvement or maintenance of the standards of unionists."

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 Tillmanns was the prospect of actuality of loss or damage. To cause it was one of their purposes.

However, the proscribed purpose in s.45D 18S not simply the purpose of causing loss or damage but "Substantial" loss or damage.

The word "substantial" would certainly seem to require loss or damage that is more than trivial or minimal. According to one meaning of the word the loss or damage would have to be considerable (see Paleer v. Grinling [1948] A.C. 291 at pp.316-317). However, the word is quantitatively imprecise; it cannot be said that it requires any Specific level of loss or damage. No doubt in the context in which 1t appears the word imports a notion of relativity, that 1S to say, one needs to know something of the circumstances of the business affected before one can arrive at a conclusion whether the loss or damage in question should be regarded as substantial in relation to that business.

In the case before us the ban affected the raw materials

for Tillmanns' business and even though it was a large and

diversified butchery and smallgoods producer it nevertheless

depended on meat. There 1s evidence for an iuference that the ban was intended to be a total one. There is evidence too that Mr. Tillmann was not prepared to relent and that the union was quite prepared for the ban to last indefinitely. In my view, having regard to the number of beasts involved in the ban in the present case and the circumstances proved the proper conclusion is that the purpose was to cause substantial loss or damage.

The next question is whether the conduct was such that it would have or be likely to have the effect of causing substantial loss or damage.

The word "likely" is one which has various shades of meaning. It may mean "probable" in the sense of "more probable than not" - "more than a fifty per cent chance', It may mean "material risk" as seen by a reasonable man "such as might happen", It may mean "some possibility" more than a remote or bare chance. Or, it may mean that the conduct engaged in is inherently of such a character that 1t would ordinarily cause the effect specified.

In Australian Telecommunications Commission v. Krell

(1976) 14 S.A.S.R. 303, Bray C.J. had to consider the meaning of the word "likely" in s.139B of the Post and Telegraph Act 1901-1973 (Cth). The context, of course, was different. However, Bray C.J. concluded it meant "more probable than not" in that context. His Honour expressed

the view that that was the natural and ordinary meaning of

construction applicable where the statute being interpreted is a penal statute or one which, as un the case of s.139B, imposed an additional liability beyond the liability in tort.

It was suggested by Joske J. in Trade Practices Commission v. Total Australia Ltd. [1975] A.T.P.R. 40 014 that "likely" in sub-s.47(5) of the Trade Practices Act was equivalent to "calculated" and he referred to Thurley v. Hayes (1920) 27 C.L.R. 548. However, in that case "calculated" was interpreted to mean "likely" in order to rid the word of its overtones of intention.

The American cases in this area are not overly helpful as S.3 of the Clayton Act uses the word "may". The only

certainty is that "may" means more than a mere possibility.

The standard varies from a "potential" in Anchor Serum Co.

v. Federal Commissioner of Taxation 217 F2d 867 at p.872 to

a "probdbility" in Standard Fashion Co. v. Magrane-Houston

Co. 258 U.S. 346. In the latter case reference was made to the effect of the word "substantial" on "may". In was considered that this should lift the requirement of proof because the effect was not simply lessening of competition but "substantial" lessening of competition.

The circumstances to which s.45D may apply are so various, that I hesitate to place a gloss on the section by preferring one meaning of "likely" rather than another for the determination of this particular case. It 18

unnecessary to do so, because I have formed the view, that

whichever meaning is adopted the evidence leads me to the conclusion that the likelihood of substantial loss or damage has been established.

During the period from 9 December 1977, when the ban was imposed at Canberra Abattoir to 20 December 1977 when the proceedings were commenced and an anterim injunction obtained, Tillmanns was conducting a retail and wholesale business in two shops selling meat and smallgoods and was dependent for its supply upon meat slaughtered at Canberra Abattoir. This supply was interrupted in two ways, first, 1t had 32 live cattle awaiting slaughter and the proper conclusion from the evidence 1s that the slaughter of these cattle was hindered or prevented by the ban at least until 28 December 1977; secondly, it had 20 head of cattle and 17 pigs which had been slaughtered and were held by Canberra Abattoir in its chiller. The proper conclusion fiom the evidence' is that supply of this meat from the chiller was hindered or prevented by the ban for upwards of a week until Canberra Abattoir obtained agreement from the Union representative to its release to avoid further deterioration. There was evidence Tillmanns was operating its stores turning over stock, depositing its gross receipts in its bank and paying its bills. fThere was evidence that the amount of gross receipts deposited was down in comparison with the corresponding period a year before. This last mentioned evidence is somewhat inconclusive in the

absence of evidence about the possible factors, which might

have affected the figures for those respective periods. However, while the evidence of loss or damage to the buSiness was unsatisfactory and unsufficient to prove any specific loss or damage, it was not such as to lead to the conclusion that loss or damage was not likely.

In my view the interruption of supply, which was proved, should, having regard to the ordinary course of human affairs, be anferred to be likely (in any of the senses mentioned) to have had the effect of causing some loss or damage to Tillmann's business. Furthermore, having regard to the number of beasts involved in the interruption of Tillmann's normal source of supply, I think the proper inference to be drawn 1s that the likelihood was that such loss or damage would be substantial.

In determining whether such loss or damage would be likely to be substantial it 1s relevant to look at immediately available alternative sources of supply. the evidence on this aspect is equivocal. Threats were made that the ban would be placed on alternative sources of supply but the evidence does not show these threats were carried out except in the case of Conkeys. But neither does the evidence show whether Tillmanns was able to obtain supplies from other sources. Indeed, the proposition that an effective ban must include evidence of refusal to supply by other abattoirs or butchers in Moss Vale, Goulburn and other smaller slaughterhouses is not self evident. But

whether the proposition is sound or not, I think the proper

conclusion from the evidence in the case before us 1s that there was a likelihood of substantial loss or damage to the business of .Tillmanns resulting from conduct of the respondents engaged in for that purpose, That being so, I think Tillmanns has shown it was entitled to an injunction,

It is true that no overt action against Tillmanns has been taken by the respondents for some considerable time. I have considered whether in view of this the Court should now hold its hand and not grant an injunction. However, the absence of action by the respondents may be accounted for by the existence of the interim injunction, until it was discharged by the trial Judge. Thereafter there was the possibility and then the pendency of the appeal. In these circumstances it would be wrong to conclude from the period of quiescence that an injunction 1S no longer necessary.

I would allow fTillmanns' appeal against the first, third, fifth, sixth and seventh of the respondents and I would dismiss the cross-appeal of those respondents. I would dismiss Tillmanns' appeal against the second respondent the Australasian Meat Industry Employees' Union, New South Wales Branch.

I would grant an injunction restraining the first respondent, the Australasian Meat Industry Employees' Union its servants and agents and the third, fifth, sixth and seventh respondents from imposing, giving effect to, or enforcing any ban on the slaughtering of livestock for

Tillmanns at the abattoirs of Canberra Abattoir Pty. Limited

at Canberra or of Conkey & Son Limited at Contamundra or the delivery of meat by such abattoirs to Tillmanns where any such ban has the purpose and would have or be likely to have the effect of causing substantial loss or damage to the business of Tillmanns of a wholesale and retail butcher at Canberra or Queanbeyan unless such ban has as its dominant purpose one of the purposes referred to in sub-s.45D(3) of the Act. I would order that the first, third, fifth, sixth and seventh respondents pay Tillmanns' costs of the appeal and the cross-appeal and that Tillmanns pay the costs of the second respondent the New South Wales Branch of the Union of the appeal.

There remains for consideration, the costs of the proceedings before the trial Judge. A large part of the evidence involved in those proceedings was concerned with Tillmanns' unsuccessful claim for damages. In all the circumstances I consider that the appropriate order between Tillmanns and the first, third, fifth, sixth and seventh respondents is that those respondents pay one-third of Tillmanns' costs of the proceedings before the trial Judge. I would order that Tillmanns pay the costs of the second respondent the New South Wales Branch of the Union and the

costs of the respondent Thomas Noble, of those proceedings.

= I certify that this and the if precedine pares ate a true coppof the Reasuns for cu... "herein of his Honour the Chief Judge, 5° rWiget Bowen

NEW SOUTH WALES DISTRICT REGISTRY) N.S.W. No. G156 of 1978

THE AUSTRALASIAN MDAT INDUSTRY EMPLOYEES UNION, TIE AUSTRALASIAN MEAT INDUSTRY EMPLOYCES UiH1LON N.S... BRANCH, ALAN SHERLOCK, 'THOMAS NOBLE, THOMAS HANNAN, FREDERICK HBANKINSON and REGINALD SCHOFIELD

THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, ALAN SHERLOCK, THOMAS HANNAN, FRGDURTCK UANXINSON and REGINALD SCHOFIELD

EVATT J.: I have had the advantage of reading the reasons for judgment prepared by Bowen C.J. in this matter. I

agree with such reasons and with the orders proposed.

THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION N.S.W. BRANCH, ALAN SHERLOCK, THOMAS HANNAN, FREDERICK HANKINSON and REGINALD SCHOFIELD

THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, ALAN SHERLOCK, THOMAS HANNAN, FREDERICK HANKINSON and REGINALD SCHOFIELD

DEANE J: The appellant, Tillmanns Butcheries Pty. Limited, 1s a wholesale and retail butcher which carries on business in Canberra and Queanbeyan. On 9 December, 1977, 32 head of cattle were held awaiting slaughter on its behalf at the abattoir conducted in the

Australian Capital Territory by Canberra Abattoir Pty. Limited.

The carcasses of 20 head of cattle and 17 pigs were held for the

appellant'1in Canberra Abattoir Pty. Limited's chiller.

The first-named respondent, the Australasian Meat Industry Employees' Union ("the Union"), is an organization of

employees registered under the provisions of the Conciliation and

Arbitration Act 1904. The membership of the Union apparently includes, inter alios, employees of wholesale and retail butchers and employees in abattoirs. The four remaining personal respondents are the President, the Secretary and two organizers of the Union. A fifth personal respondent, who was not served with

the notice of appeal, was struck out as a party and the appellant

-3- does not press the appeal against the other remaining respondent which is the New South Wales Branch of the Union. Except where the contrary 1s expressly indicated, references to "the respondents" in this judgment are to the respondents against whom the appellant presses the appeal, that is to say, the Union and the four remaining personal respondents. The respondents, for their part, filed a notice of cross appeal in which they challenged some of the findings of the learned judge of first

St. John J., at first instance, found that the respondents "in concert engaged in conduct that prevented the supply of goods by Canberra Abattoir" to the appellant. In the plain language used by his Honour and in argument before us, they placed "a black ban" on slaughtering of beasts for, or delivery of meat to, the appellant. They procured that the Union's members employed by Canberra Abattoir Pty. Limited lend their support to that black ban. One result of the black ban, in the context of that support, was that the carcasses held in the chiller at Canberra Abattoir Pty. Limited's premises were not available to the appellant for approximately a week. After about a week, the Manager of Canberra Abattoir Pty. Limited informed the local representative of the Union that, in his opinion, the carcasses had been long enough in the chiller and that he proposed to release them "rather than have them deteriorate any further". With the local representative's concurrence, the carcasses were

then released to the appellant. Another result of the black ban

. -4- was that slaughtering for the appellant at the abattoir ceased from 9 December, 1977 until 28 December, 1977 when, after injunctive relief had been granted to the appellant by a Judge of this Court, the black ban ceased to operate and slaughtering on the appellant's behalf resumed. In the meantime, the 32 head of cattle which were held awaiting slaughter remained on agistment on a grazing property of Canberra Abattoir Pty. Limited. The industrial officer of the Cootamundra Abbatoir of Conkey & Son Limited, at which the appellant occasionally had livestock slaughtered, was informed of the black ban by a representative of the Union and requested to observe it. His response was: "Yes, all right". On checking however, he ascertained that no livestock

was held awaiting slaughter on the appellant's behalf.

The plain inference from the evidence 1s that when the black ban upon processing for the appellant was imposed, it was intended by the respondents to be of indefinite duration. Presumably, it waS intended to remain in operation until the appellant acceded to demands made of it on behalf of the Union. There is a passage in the evidence which might warrant the inference that the abattoir conducted by Canberra Abattoir Pty. Limited was the only abattoir in close proximity to Canberra or Queanbeyan available to the appellant and that the possible alternative abattoirs were "at Moss Vale, Goulburn, and the little slaughter houses around there", Be this as it may, it is clear

from the above numbers of carcasses and livestock that, at the

time the black ban was imposed and enforcement of it at Canberra Abattoir Pty. Limited's abattoir was procured, the appellant, for the purposes ofits business, used the facilities of Canberra

Section 45D of the Trade Practices Act 1974 provides, for present purposes, that, subject to the section, a person shall not, in concert with another person, engage in conduct' that hinders or prevents the supply of goods or services by a third person to a corporation where 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 corporation. As has been mentioned, the learned judge at first instance held that the respondents, in concert with one another, engaged in conduct which prevented the supply of goods by a third person, Canberra Abattoir Pty. Limited, to a corporation, the appellant. If one substitutes "goods or services" for "goods", that finding was, in my view, plainly warranted by the evidence. Indeed, even though the respondents challenged that finding in their notice of cross appeal, no real argument attacking it has been advanced on their behalf. There remains the question whether the relevant conduct was engaged in for the purpose, and would

have or be likely to have the effect, of causing substantial loss

St. John J., found that the appellant had not discharged

the onus of establishing that the relevant conduct was, for the

purposes of s.45D(1), conduct which "would have or be likely to have" the effect, of causing substantial loss or damage to the business of the appellant. It was, in view of that finding, unnecessary for his Honour to express any conclusion on the

question whether the conduct had been engaged in for a purpose mentioned in s.45D(1) and, as I read his judgment, he refrained from so doing. There is no real dispute between the parties as to the relevant primary facts. In these circumstances, it is éncumbent upon the members of this Court, while according respect and weight to any conclusions of the trial judge, to reach and

give effect to our own conclusion as to whether the relevant

conduct involved contravention or threatened contravention of s.45D of the Act (Warren v. Coombs (1979) 23 A.L.R. 405 at p. 423;

Commissioner for Railways v. Ruprecht (1979) 25 A.L.R. 481 at pp. 490 and 498).

At. first instance, the appellant sought both injunctive relief and damages. A considerable body of evidence was led, on behalf of the appellant, aimed at establishing that the relevant conduct had, in fact, caused financial loss or damage to the appellant's buSiness. This evidence went some way towards showing that the appellant's gross takings had fallen during the period in which the ban was enforced by comparison to some other periods. It failed to establish that any loss of gross revenue was the result of the black ban. Not surprisingly, un view of the claim for damages, emphasis in the proceedings at first instance appears

to have been placed upon establishing that the relevant conduct

-7- had, in fact, had the effect of causing substantial loss or damage to the appellant's business. There is, however, notning in the Material before us which would warrant a finding that, in so far as the claim for injunctive relief is concerned, the appellant abandoned its right to seek relief on the ground that the relevant

conduct, if continued, would, or would be likely to, have the

On the hearing of the appeal, senior counsel for the appellant abandoned any claim to an order for damages. His argument that the appellant was entitled to injunctive relief was based almost entirely upon the argument that the conduct would have been likely to have the effect of causing substantial loss or damage to the business of the appellant. It was submitted, on behalf of the respondents, that this argument was not open to the appellant by reason of the manner in which the proceedings were conducted at first instance. As I have said, there 1s nothing in the material before us which would warrant holding that the appellant had, at first instance, abandoned its entitlement to

rely, for injunctive relief, on the likely effect of the relevant

conduct. The argument 1S properly open to it on the appeal.

Section 45D, like any legislative provision that proscribes engaging in conduct "in concert" or with a particular "purpose", possesses difficulties of application. These difficulties of application are compounded by the use of words,

Such as "subsStantial" and "likely", which are more appropriate to

8 a maze than to legislative provisions exposing officials of trade unions and others to actions for substantial damages in respect of activities which they may genuinely regard as coming within their legitimate field of endeavour. The Legislature having created these difficulties however, it 1s the judicial duty, in an appropriate case, to attempt to resolve them. This involves, for the Purposes of the present matter, giving consideration to the meaning of the words "likely" and "Substantial" in s.45D(1) and to

the nature of the "purpose" to which the sub-section refers.

The word "likely" can, in some contexts, mean "probably" in the sense in which that word is commonly used by lawyers and laymen, that is to say, more likely than not or more than a fifty per cent chance ("an odds-on chance": per Lord Hodson, Czarnikow

Ltd. v. Koufos [1969] 1 A.C. 350 at p. 410 and see, as to the

meaning of the word "probable", Eggleston, Evidence, Proof and

Probability, 1978, p. lOff). It can also, in an appropriate

context, refer to a real or not remote chance or possibility regardless of whether it is less or more than fifty per cent. When used with the latter meaning in a phrase which is descriptive of conduct, the word is equivalent to "prone", "with a propensity" or "liable". When so used, it is sometimes equated with the concept of foreseeability in the law of negligence (see, for example,

Overseas Tankship (U.K.) Ltd. Vv. The Miller Steamship Co. Pty. Ltd. & Anor. (Wagon Mound No. 2) [1967] 1 A.C. 617 at pp. 634-5;

-9- Callaghan v. Wm. C. Lynch Pty. Ltd. (1962) 79 W.N. (N.S.W.) 830 at p. 835). Thus, if I fire a rifle through drawn curtains into a quiet lane in a country village, it is not likely, in the sense of more likely than not or an odds-on chance, that I will injure anyone. It would, however, be difficult to deny that there was a real chance or possibility (or likelihood in that sense) that an occasional passer-by would be wounded by the bullet. Plainly, the act of firing a rifle through drawn curtains into a lane used by pedestrians would be an act which was, in the circumstances, prone or liable (likely in that sense) to cause injury to a passing

In Australian Telecommunications Commission v. Krieg Enterprises Pty. Ltd. (1974) 14 S.A.S.R. 303 at pp. 308-313), Bray C.J., after an instructive consideration of relevant authorities, expressed the view that the ordinary and natural meaning of the word "likely" 1S synonymous with the ordinary and natural meaning of the word "probable" and both words mean that there is an odds-on chance of the thing happening. His Honour added that statutes containing the words have usually been construed that way, particularly so where the statute 1s a penal statute or is imposing an additional liability in tort. This view, 1f accepted, would lead to the conclusion that, prima facie, the word "likely" in s.45D(1)} means probably in the sense of more likely than not.

While dictionary definitions and examples of judicial and lay

usuage can be adduced to offer strong support for that view, I am'

unable to accept that likely is synonymous with "more likely thai.

Soe shin nate ak A LLL Ud Seal axtalia, At tart tea bel A fee beter Lek hee eee Rie ee Lot ah et ed

-10- not" or that if there 1s a 49.9% chance of an event occurring it would ordinarily be denied that it was likely (or "quite likely") that the event would occur. Nor does 1t appear to me that there is a presumption that, in a legislative provision proscriping conduct that is likely to cause loss or damage to another, the legislative intent was that conduct which had a 49.9% chance of

causing such damage was to be outside the proscription.

Section 45D(1) proscribes conduct only if it be engaged in for the purpose of causing loss or damage to the business of the relevant corporation. Even though conduct be engaged in for such a purpose it will be outside the proscription contained in the sub-section unless it "would have or be likely to have" that effect. Plainly the reference to "would be likely to have" is meant to convey a lower degree of likelihood than the reference to "would have". In the case where conduct has not occurred, a court would be constrained to determine whether conduct "would have" the specified effect by reference to the ordinary standard of whether it was more likely than not that 1t would. In such a case, 1f "likely" 1s interpreted as meaning "more likely than not", it would add little to the practical scope of the section. On the

other hand, if conduct had run its ordinary course and had not had the specified effect, 1t would be but rarely that a court would feel justified un disregarding the lesson of the event and finding that while the conduct did not have the specified effect it had been more likely than not that it would have that effect (See per

Dixon J. Willis v. The Commonwealth (1946) 73 C.L.R. 105 at p.

The conclusion which I have reached is that, in the context of s.45D(1), the preferable view 15 that the word "likely" is not synonymous with "more likely than not" and that 1f relevant conduct 1s engaged in for the purposes of causing loss or damage to the business of the relevant corporation, it will suffice, for the purposes of the sub-section, if that conduct is, in the circumstances, such that there 1s a real chance or possibility that 1t will, if pursued, cause such loss or damage. Whether or not such conduct is likely (in that sense) to have that effect 15S a question to be determined by reference to well-established standards of what could reasonably be expected to be the consequence of the relevant conduct in the circumstances. In determining the answer to that question, 1t will be relevant that the persons engaging in the conduct did so with the purpose of

The word "substantial" 1s not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision. In the phrase "substantial loss or damage", 1t can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. [It can be used in a relative sense or can indicate an absoluvre

significance, quantity or size. The difficulties and

-12- uncertainties which the use of the word is liable to cause are well illustrated by the guidance given by viscount Simon in Palser ve Grinling ([1948] A.C. 291 at p. 317) where, after holding that, in the context there under consideration, the meaning of the word

was equivalent to "considerable, solid or big", he said:

"Applying the word in this sense, it must be left to the discretion of the judge of fact to decide

as best he can according to the circumstances of each case ...".

(See also Terry's Motors Limited v. Rinder [1948] S.R. (S.A.) 167

at p. 180 and Granada Theatres Limited v. Freehold Investments

(Leytonstone) Limited [1958} 1 W.L.R. 845 at p. 848).

In the context of s.45D(1) of the Act, the word "substantial" is used in a relative sense in that, regardless of whether it means large or weighty on the one hand or real or of substance as distinct from ephemeral or nominal on the other, 1 would be necessary to know something of the nature and scope of the relevant business before one could say that particular actual or potential loss or damage was substantial. As at present advised, I incline to the view that the phrase, substantial loss or damage, in s.45D(1) includes loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal. It is, however, unnecessary that I form or express any concluded view in that regard since the vltimate conclusion which I have reached is the same regardless of which of the alternative

meanings to which reference has been made is given to the word

The "purpose" referred to in s.45D(1) 1s the operative subjective purpose of those engaging in the relevant conduct in concert. In this regard, one may contrast the purpose referred to in s.45D(1) with the objective purpose of an arrangement under

s.260 of the Income Tax Assessment Act 1936 (see Peate v. Federal

Commissioner of Taxation (1964) 111 C.L.R. 443 at p. 468).

It suffices, for present purposes, to say that, in my view, 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. Limited v. Veitch ([1942] A.C. 435 at pp.

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

As has been mentioned, the black ban «as, when imposed, of indefinite duration. On 20 December, 1977, that is some 11 days after the imposition of the black ban, the appellant instituted proceedings seeking injunctive relief in this Court, An ex parte injunction was granted on that day and, some days later, was continued in varied form. That injunction, remained in operation until the hearing of the matter by St. John J. The black ban had been relaxed to permit the release of the carcasses held in the chiller to prevent "further" deterioration. Otherwise, it was still in force at the time the proceedings were instituted. By 28 December, 1977, the black ban had ceased to be operative - presumably in compliance with the terms of the injunction. In these circumstances, it is apparent that the injunction prevented the relevant conduct from having the full effect which it would have had if the black ban had continued to be enforced.

St. John J. would appear to have taken the approach that, in the context of the manner in which the case was presented by the appellant before him, it was not open to the appellant to rely upon the propensity of the relevant conduct to cause loss or damage to the appellant's business but that the appellant was required to establish that the actual effect of the conduct had been to cause such loss or damage. I am respectfully unable to agree with that approach. In my view, it was neither necessary nor correct to determine whether the conduct would have had or

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (216 paragraphs)