Transport Workers Union of Australia (NSW Branch) & John Barry McLean & David Arthur McNally & George Henry McKaly v Navair Pty Ltd [1980] FCA 141

GENFRAL DIVISION No G 61 of 1980 No G 70 of 1980 NEW SOUTH WALES DISTRICT

THE TRANSPORT WORKERS UNION OF AUSTRALTA THE TRANSPORT WORKERS UNION OF AUSTRALIA NEW SOUT! WALES BRANCH

JUDGE MAKING ORDER: EVATT J. DATE OF ORDER: 23 JANUARY 1981

THE COURT ORDERS THAT: The Notice of Mction herein dated 3 December 1980 be dismissed with costs.

sought damages against the five respondents pursuant to s.82

It us common ground that the first respondent is an organization of employees registered under the Conciliation and Arbitration Act 1904; that the second respondent 1s an undustrial union registered under the provisions of the New South Wales Industrial Arbitration Act 1940; that the third respondent 1S a member of and an organizer employed by the second respondent and that the fourth respondent is also a member of the second respondent who was in July 1980 an employee of Mobil O11 Australia Limited (Mobil ©11) a company

Such application came on for directions hearing and for hearing of an application under s.80(2) of the Act for unterum wnjunction before Frank. J. on 14 and 15 August 1980. It was then ordered that the matter proceed by way of Pleadings, directions being made in respect of a time-table for such pleadings and the administering of interrogatories and the answering thereof in accordance with 0.16 of the Federal Court Rules. Subsequently, the hearing of the matter

On 15 August 1980 Frank: J, having refused to make any order for interim injunction against the first and fifth

respondents made (inter alia) the following order:-

By application filed 4 August 1980 and numbered Gél of 1980 Navair Pty. Limited a company incorporated under the Companies Act (New South Wales) 196) sought certain orders pursuant to s.80 of the Trade Pratices Act 1974 (the Act), including an interim anjunction, against five respondents, namely Transport Workers' Union of Australia (the Federal Organization), Transport Workers' Union of Australia New South Wales Branch (the State Union), John Barry Mclean, David

Arthur McNally and George Henry McKay. The applacant also

"The second respondent, Transport Workers' Union of Australia New South Wales Branch, by itself, uts servants and agents, the third respondent John Barry McLean and the fourth respondent David Arthur McNally be each restrained until the determination of the proceedings in No.G6l of 1980 or further order from engaging 1n conduct in contravention of s.45D of the Trade Practices Act 1974 tun concert with any person that hinders or prevents the supply of aviation gasolene or other petroleum product by Mobil 01] Australia Limited to any driver of a tanker vehicle of Navair Pty. Limited who is not un breach of the Transport Industry Petroleum etc. Distribution (State) Award of 18 Apriid 1980, where such conduct is engaged in for the purpose and has or would be likely to have the effect of causing substantial loss or damage to the business of the Applicant."

In his reasons for oral judgment Franki J. stated:-

"I consider that this 1s a matter in which I prefer to give oral judgment rather than to delay to express my reasons, perhaps more fully, in a reserved Judgment. This is an application under section 80 of the Trade Practices Act 1974 for an tunterlocutory wnjunctton to restrain conduct said to be un contravention of section 45D of the Act. The application 1s brought by Navair Pty. Limited, a company which operates approximately 30 atreraft from Bankstown A.irport. The aircraft are used for flight training, air charter services and commuter airline operations.

The first respondent 1s the Transport Workers Union of Australia. I am not

satisfied that there is evidence of any significance against the first reespondent.

The second respondent 31s the Transport Workers Unton of Australia New South Wales Branch, and it 1s admitted that it 1s an industrial unton registered under the

provisions of the Industrial Arbitration Act 1940, New South Wales.

The third respondent is John Barry McLean, a union organizer employed by the second respondent.

McNally, an employee of Mobil O1l Australta Limited, which I will call Mobil O11, which operates a depot at Bankstown situated within the airport perimeter. It 1S admitted that he 1s a member of the second respondent.

The fifth respondent us George Henry McKay, but there 1s no evidence against him.

The applicant refuels atrceraft at Bankstown Airport utilising a mobtle fuel tanker vehicle. Prior to a time towards the end of May 1980, the tanker had beeen driven by two employees of the applicant, at least one of whom was a non unionist.

It was the practice to drive the tanker to the Mobil 011 depot in the airport where it was filled, e.ther by an employee of Mobil O11 or by the driver of the vehicle. It was then the practice to drive the tanker to the various atrrecraft and refuel them from the tanker.

On 18 April 1980 an award was made under the New South Wales Industrial Arbitration Act entitled "Transport Industry - Petroleum etcetera Distribution (State) Award". Clause 40 sub-clause (1) of that award provides:

of the Transport Workers' Union of Australia NSW Branch shall he in the following terms:

(a) In the employment of persons by an employer no discrimination shall be exercised against members ef the union.

(b) Where a worker other than a member of the union 1s enguged, such worker shall within 14 days after commencing work make application for membership of the unton and if accepted shall complete such application.

on which this award takes effect make application for membership of the unton and 1.f accepted shall complete such application.

(d) Any person who has made application for membership of the union iwn accordance with this clause, and whose application is rejected, and any person expelled from membership, shall be deemed to be a member of

the union for the purpose of this award, except a person struck off

Whilst wut ws necessary to express some views upon the evidence it must be remembered that I am only forming such views as are appropriate for interlocutory proceedings, and that nothing I say 1s to be regarded as a conclusive finding relevant to the determination of the application for a permanent injunction when that application comes on for hearing, or relevant to any other proceedings which are or may be before any court or tribunal.

It would appear the principal task of the driver of the tanker, for example, before 7 August 1980 - one was a Mr Namroud - was to Operate the tanker for the purpose of refuelling aircraft, and this would appear to be within the definition of "aerodrome attendant" in clause 2 of the award.

I reiterate I am making no finding to this effect, and point out that there 1s no evidence before me as to the scope of the Carters Etcetera (State) Conciliation Committee, and 1t seems that the award only applies to employees referred to in clause 1 of that award. I am simply saying that on the material before me it appears likely that the driver of this tanker, at least tn the past, has been withtn that classification of aerodrome attendant.

Since about 23 May 1980 attendants employed by Mobil 011 have refused to allow the applicant's tanker vehicle to be filled with fuel at the depot. On about 30 May 1980 the respondent, Mr McLean, addressed a meeting of aircraft operators, saying in substance that there was a dispute because the Transport Workers Union wanted the award

the land and that anybody who refuels aircraft must be a member of the Transport

Mr McLean also produced on that occasion a copy of the award. There was some question whether Mr McLean used the word "dispute" or unstead, the word "ban". On 21 July 1980 the fourth respondent, Mr McNally, telephoned the managing director of the applicant, Mr Hazelton, and complained that the applicant's tanker was being refuelled at night, and said that 1f this was seen to happen again "we will turn off the power for the key-lock system and at will mean that nobody can use _ the key-locks".

It seems that after normal working hours there was a bowser where fuel could be obtained, but that bowser was locked and that

the applicant had in its possession a key to the bowser.

On 25 July 1980 the fourth respondent refused to fill the tanker when driven to the

Mobil O11 depot by Mr Hazelton after the fourth respondent had asked him - that 1s, Mr Hazelton ~ whether he had a union badge and he had said that he had not.

An application was made to me in chambers on 30 July 1980 to grant an ex parte injunction, but I refused to do this, and this application that 1s before me now was filed on 4 August 1980 and served on the second respondent on 5 August 1980.

The third respondent said in evidence that since 1969 the o11 section of the Transport Workers Union has been in dispute with Mobil O11 Australia Limited on many occasions over the tussue of manning at

Bankstown airport. He also said that in early April 1980, before the award which I _ had mentioned came into force, there were

discussions between him and others and Mobil O11 concerning issues of safety, manning and the use of non-union labour. Io am not impressed with the relevance of those aspects of the proceedings now before me.

It seems prior to 5 August 1980 the applicant had been able to fuel its atrreraft at Bankstown by taxi-1ing the aircraft to the bowser at the Mobil depot but that union action prevented this since abovt 5 August

1980 and that this unton action applied not only to the applicant but also to the Royal Aero Club of New South Wales which habitually used its own tanker to refuel uts planes at the airport.

I make reference to some allegations concerning the way 1n which members of the Hazelton family performed work but I am not impressed with the relevance of that material in these proceedings. I consider uf I regard Mr McNally as the first person, Mr McLean, or the second respondent, as the second person, Mobil O1.l Australia Limited as the third person and the applicant as_ the fourth person within the words of section 45D, and I think 1t 1S appropriate so to do, then there has been conduct between the first person, Mr McLean and the second person, either Mr McNally or the second respondent which, so far as 1s necessary for the proof of a pruma facie case, should be regarded as having been engaged in for the purpose and as being such as would have or be likely to have the effect of causing substantial loss or damage to the business of the applicant. I have un mand section 45D (5) in relation to the second respondent.

It was submitted on behalf of the respondent that any relevant conduct fell within the defence provided by section 45D(3). Ilowever, without dealing with this section in precise detail in relation to the particular facts of this case, 1t seems to me clear that looking at the matter as [ should look at it in regard to the establishment of a prima facie case, the dominant purpose for the conduct engaged un was for the purpose of ensuring that persons who drive the relevant tanker were members of the second respondent. It seems to me as far as is relevant for determination of whether a prima facie case exists that the applicant has succeeded."

H.s Honour then considered the question of the balance of convenience during which he observed:- -

"I consider that a critical guest1ion in this case 158 that arising from examination of clause 40 of the award to which T have referred and I think this 1s a very important

question tin relation to the exercise of the court's discretion.

It seems to me that is a matter that I have to bear carefully in mind. I consider that the court should proceed on the basis that the award wus validly made although, as I have said, its scope 1s by no means clear on the evidence before me."

On 21 August 1980 a Statement of Claim against the first four respondents in G 61 of 1980 was filed by the applicant. Such statement of claim was numbered G 70 of 1980. Thereafter documents filed in the matter have been numbered G 70 of 1980. On 8 December 1980 the Court ordered that G 61 of 1980 and G 70 of 1980 be consolidated, it being

noted that the applicant was not proceeding against Mr McKay,

On 11 September 1980 the four respondents filed their defence which denied (unter alia) that the third and fourth respondents were members of the first respondent; that the respondents committed the breaches of s.45D of the Act alleged un the Statement of Claim and further said, pursuant to s.45D(3) of the Act, 1n answer to the whole of the claim, that any conduct in which the responcgents may be found to have engaged which would otherw1tse amount to a contravention of s.45D of the Act was for a dominant purpose substantially related to the remuneration, conditions of employment or

working conditions of Mr McNally or those of his and his

pursuant to 0.16 r.l, filed and served a notice on the second, third and fourth respondents requiring those respondents to

answer specified interrogatories, totalling un all 37.

Interrogatory numbered 37 was the only interrogatory

directed to the second respondent, the State Union.

Interrogatories numbered 1 to 21 inclusive were directed to Mr McNally whilst interrogatories numbered 21 to 36 inclusive were directed to Mr McLean. As both Mr McIean and Mr McNally objected to answering most of such iunterrogatortes on various grounds, the applicant on 3 December 1980 fr1led a notice of motion seeking orders that the third and fourth respondents be directed to answer their respective unanswered interrogatories. This procedure was

apparently taken under 0.16 r.5 of the Rules of Court.

Such motion came on for hearing on 8 and 9 December 1980 when leave was granted to the two respondents to file further verified statements in answer to interrogatories beyond the date earlier set by the Court for so doing. On 9 December 1980 the Court adjourned the hearing of the motion to 17 December 1980 to enable additional grounds of objection to answering certain unterrogatories which had been argued to be verified by the respondents. Such verification having been

filed by 17 December 1980, the Court then ordered that the

notice of motion be dismissed with costs, indicating that reasons for judgment could not then be given owing to the Court's commitments aunterstate but that ait was then anticipated that such reasons would be published towards the end of the Court vacation some three or four weeks before 16 February 1981, the date set for the hearing of the substantive

matter. Such reasons for judgment are now published.

It is emphasised that no wiunterrogatory has been directed to the first respondent, the Federal Organization. That respondent clearly acquired a corporate character upon registration under the provisions of the Conciliation and Arbitration Act 1904 (see ss.136 and 146, Jumbanna Case (1908)

6 C.L.R. 309 and William -v- Hursey (1959) 103 C.I.R. 30 @ 52).

As stated, the State Union has been asked only the one iunterrogatory. Such interrogatory has been answered and

verifiled by one, Edward C McBeatty, the Secretary of the

Union. That interrogatory and answers are as follows:-

37A. Look at the letter dated 7 November 1980 1980 written by the Secretary Treasurer to the Industrial Registrar and say (a) Did the second respondent authorise

the respondent Mclean to address the meeting referred to in that letter?

(b) If no, did the respondent McLean address this meeting during the course of his employment as an organizer of the second respondent.

YS necessary, in my view, to set them out in full together with the answers to those to which Mr McNally or Mr McLean did not object. Each .unterrogatory 1s numbered with the letter "A"

whilst the answer thereto as verified bears the corresponding

Despite the length of the other 36 interrogatories it

employed by MOBIL OIL AUSTRALIA LIMITED at its depot at Bankstown Airport? Yes.

Did part of your duties include refuelling the tanker vehicle of the Applicant when required?

On or about the 21 July 1980, did you telephone the Managing Director of the Applicant, Mr J.D.B. Hazleton? Yes.

If so, for what purpose did you telephone him? (objected to)

If so did you say to him these words or words having a similar effect: "You have been seen to f111 your tanker truck from the key-lock system after the depot has closed. If this is seen to happen again, we will turn off the power for the key-lock system so that nobody can use 1ut."?(objected to)

Were you between 21 July 1980 and 10 September 1980, a member of the Transport Workers Union of Australia, New South Wales?

Were you between the same dates a member of the Transport Workers

On 21 July 1980 were you requested by Mr J.B.D. Hazleton to refuel or permit to be re-fuelled, the petrol tanker vehicle of the Applicant?

If no, for what reason did you not refuel 1t? (objected to)

If you did not refuel it had you previously discussed your decision not to refuel it with any other person? (objected to)

If yes, with whom did you discuss your decision not to refuel?

For what purpose did you refuse to refuel or permit to be refuelled

Did you intend, by your refusal to refuel the said vehicle to co-erce(sic) the Applicant unto engaging members

(1) not applicable (11) wf applicable, (objected to)

If yes to question 14(sic), did you intend, in order to achieve your purpose, to cause damage to the business of the Applicant?

(4) not applicable (11) wf applicable, (objected to)

If no to question 17, how did you intend to achieve your purpose?

(1) not applicable (11) 1£ applicable,(objected to)

As an official of the Transport Workers Union of Australia (New South Wales

agree with the Respondent Mclean that you would refuse to refuel the tanker vehicle of the Applicant?(objected to)

address a meeting of aircraft operators at the Royal Aero Club, Bankstown Airport?

be applied to the refuelling of tanker vehicles at Bankstown

Airport when such vehicles were being driven by non-members of

the Second Respondent? (objected to) If yes, did you mean thereby that the refuelling of such vehicles

If no, what did you mean thereby? (1) not applicable

If yes to question 24 did you mean thereby that such ban would be imposed by members of the Second Respondent?

(11) w£ applicable, (objected to) Did you consult with David Arthur McNally in relation to this ban? (objected to)

Did you inform David Arthur McNally that the Second named Respondent had decided that the ban should be umposed? (objected to)

Did you inform David Arthur McNally that, until further notice, he should not refuel, or permit to be refuelled, the tanker vehicle of the Applicant? (objected to)

Did you inform him that the reason for such ban was the desire of the Second Respondent (The Transport Workers Union, New South Wales Branch) to enforce the provisions of the Transport Industry Petroleum and Distribution Industry (State) Award? (objected to )

Was 1t your intentton to coerce the Applicant unto employing members of the Second Respondent to drive 1ts tanker vehicle when 1t was engaged in refuelling aircraft.(objyected to) If yes, was it your purpose, in order to achieve the object in question 31, to cause Loss or

32B (1) not applacable (11) 1£ applicable, (objected to)

33A If no, what purpose did you expect the ban to achieve?

33B (1) not applicable (11) tf applicable, (objected to)

34A Did you, by means of the ban, intend to hinder the Applicant in carry.ung on its business?(objected to)

35A Did you by means of the ban intend to prevent the Applicant from competing with other airlines in offering charter and other services?(objected to)

36A Did you have, as a reason for the ban a purpose other than to coerce the Applicant to employ members of the Transport Workers Union (New South Wales Branch) as drivers of its tanker vehicle? (objected to)

Order 16 r.2(2) of the Rules of Court provides that "a party shall, .... answer interrogatories by filing and serving on the party requiring the answers:(a) a statement in accordance with rule 6; and (b) an affidavit veryifying that

Order 16 r.6(3) provides that "a party may object to answering any interrogatory on the following grounds but no other: (a) where the answering 1s not required by an order, that the interrogatory does not relate to any matter in question between him and the party requiring the answer; (b) that the interrogatory 1s vexatious or oppressive; and (c)

The grounds of objection to interrogatories numbered

5, 6, 11, 14, 21, 31, 34,35 and 36 have been verified as

(a) that it (the interrogatory) 1s vexatious, oppressive and an abuse of the process of the Court.

(b) that 1t 1s a fishing iunterrogatory. (c) that un answering the iunterrogatory I may tend to expose myself to the

(d) that the iunterrogatory seeks to question me as to my state of mind.

Grounds of objection to interrogatory numbered 12 have been verified as the same as grounds (a), (b), (cc) and (e}) above whilst grounds of objections to interrogatories 27, 28, 29 and 30 are verified as the same as grounds (a), (b), (c) and (e) together in each case with a further ground that the interrogatory seeks details of what was said and not the substance thereof. Interrogatory 23 1s also objected to on

this further ground together with ground (c) and (e) above.

In answers, 13B(11), 16B(a1), 17B(11), 18R(11), 24B(11), 25B(11), 26B(11), 32B(11) and 33B(11) the sole objection, if each or any of the unterrogatory 1s applicable,

After argument, Mr McDevitt Counsel for the Applicant

indicated that he was not pressing interrogatories 5A and 6A.

Before considering the validity of the above grounds of objections relevant parts of sub-sections of s.45D and other sections of the Act are referred to. The applicant's

claim alleges a breach of those parts of s.45D(1). which

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 .... where-

As claimed the "person" referred to in s.45D(1) is either Mr McNally or Mr Mclean, the "second person" 4s then respectively either Mr Mclean or Mr McNally, the "third

person" us Mobil O1l whilst the "fourth person" a1s_ the

The applicant does not claim that either the Federal organization and/or the State Union directly acted in concert with one another or with either or both the third and fourth respondents for a purpose contrary to s.45D(1). Consequently 1t ws unnecessary, at this stage at least, to determine whether the second respondent 1s a "person" within the meaning of that word tn s.45D(1) but 1t 1s noted that "person" is not defined in the Act. Section 22 of the Acts Interpretation Act

1901 provides that, unless the contrary intention appears,

"person" shall iunclude a body politic or corporate as well as an individual. Section 4(5) of the Act also provides that "the express references in this Act to corporattons and bodies corporate shall not be taken to imply that references to persons do not also include references to persons who are not

But the applicant claims that as a result of the alleged conduct of the third and fourth respondents both the first and second respondents (that 1s, the Federal organization and the State Union) are deemed to have contravened the provisions of s.45D(1) of the Act as a result

for purposes that include the purpose, of furthering the interests of its members in relation to their employment) engage 1n conduct 1n concert with

one another, whether or not the conduct 1s also engaged 1n tn concert with other persons, the

with the participants, and so to engage un that conduct for the purpose or purposes for which that conduct 1s engaged in by the partictpants, unless

the organization establishes that ut took all reasonable steps to prevent the participants from

Clearly both the Federal Organization and the State

Union are "organizations of employees" within the meaning of

Further, consideration must be given to the question whether the second respondent (the State Union) 1s a "body corporate" within the meaning of that phrase in s.45D(6). This complex question involves consideration of the New South Wales Trade Union Act 1881 and the Industrial Arbitration Act 1940 and numerous decisions of the English Courts, of the High Court of Australia, of the Australtan Industrial Court and its predecessor the Commonwealth Industrial Court, of the Supreme Court of New South Wales, of the New South Wales Industrial Commission and more recently of the Federal Court

The New South Wales Industrial Arbitration Act 1940 provides that "any trade union of employees" may be registered under that Act and on registration shall be an tundustrial union until such registration is duly cancelled. The Industrial Arbitration Act defines a "trade union" as meaning a trade union registered under the Trade Union Act. That Act defines the term "Trade Union" to mean any combination for regulating the relations between workmen and employers or between workmen and workmen .... and for imposing restrictive conditions of any trade or business etc. (see $s.31 of the Trade Unzon Act(N.S.W.)1881). Both Acts are silent as to the legal status

of a registered trade union and an industrial unton

Although there is strong support for the conclusion that a registered trade and tundustrial unton tn New South Wales has, by judicial wumplication, a corporate character, particularly wn proceedings brought under the New South Wales Act, thts question generally is, an my view, still to be

finally and authoritatively resolved (see Taff Vales's Case

1901 A.C. 426, Osborne's Case 1910 A.C. 87, Kelly's Case(1915)

84 L.J.K.B. 2236, Bonsor's Case 1956 A.C. 104, Williams -v- Hursey (1959) 103 C.L.R. 30 @ 63, 66, Egan -v- Sho

Distributive and Allied Employees Assocration (1979) 25 A.L.R.

257, Egan ~v- Barrier Branch of Amalgamated Miners'

Association (1917) 17 S.R. 243, Brailey -v- Sydney Branch of the Waterside Workers Federation (1935) A.R.(NSW) 148 @ 153;

Lasbies ~v- Mackay (1945) A.R.(NSW) 562 @ 574, Costello -v-

Gietzelt 1 F.L.R. 446, Hoolahan ~v- Gietzelt 1 F.L.R. 361,

Murphy -v- Applebee (1959) 3 F.L.R. 361 @ 364-365,Moore -v-

Doyle (1969) 15 F.L.R. 59, Transport Workers Union (NSW

Branch) & Ors -v- Leon Laidely Pty. Limited 28 A.L.R. 589).

Laidely's Case(supra) @ 595 where he states: "Dealing wtth

the position of the union there 1s some divergence between the English and Australian authorities relating to trade unvions, which leaves it a matter of some doubt and difficulty whether a trade union such as this respondent, registered under the Industrial Arbitration Act 1940 and governed by the Trade Union Act 1881, has legal personality or is to be regarded as

a "body corporate" for the purposes of the Acts Interpretation Act 1901 or as a "person" for the purposes of s.45D(1) of the Trade Practices Act 1976. This again appears to me to be a serious guestion to be tried in the light of all the facts as they exist after the ful] trial of the matter and not a matter to be decided definitively at this interlocutory stage."". T am also of Lhe opinion that this question should not in all the circumstances be decided definitively at this stage of this proceeding. Suffice it to say, that, in my view, there

1S a real possibility that, contrary to views expressed by

Deane J. in Laidely's Case (supra @ 602) and by Lockhart J. in

Leon Laidely Pty. Iimited -v- Transport Workers Union of

Australia & Ors 28 A.L.R. 129, the second respondent herein (the State Unton) 1s not a "body corporate" within the meaning

In the present proceeding the applicant is also claiming damages under s.82 of the Act. Section 45D(6)(b) prohibits such action against the third and fourth respondents 1f it ws determined that the organization of employees of which they were members at the relevant time was a_ body corporate. On the other hand, 1f 1t 1s determined that such organization was, at the relevant time, not a body corporate within the meaning of that phrase in s.45D(6) then no proceeding under s.82 can be directly brought against the

Accordingly the only further order that the Court could make un the present proceeding against either the third or fourth respondent 1s an order granting a permanent

aunjunction under and in accordance with s.80 of the Act.

If the applicant was not seeking an injunction under

s.80 of the Act against the third and fourth respondents, then the Court would have no jurisdiction to hear the action for

damages against them. Under such circumstances, should the

Court entertain a motion seeking orders directing those two

respondents to answer interrogatories relating to alleged past conduct by them which 1.f proved might support a finding of damage to the applicant when an order could not be made against them personally for the payment of such damaces as a

Obviously 1f the third and fourth respondent were not parties to the proceeding then no such interrogatories could be administered. Simply by joining the third and fourth respondents as parties to a proceeding in which damages are claimed against other respondents for the purpose of seeking, in the same proceeding, an injunction under s.80 of the Act against those two respondents does not mean that in those circumstances the applicant ws entitled to administer interrogatories directed to the third and fourth respondents which are not relevant to the issue whether a permanent injunction under s.80 should be granted. Such interrogatcries

would 1n my opinion be oppressive and need not be answered.

(1) Possibility of proceeding against Third and Fourth

I respectfully agree with the observations of Deane

J. in Refrigerated Express Lines (A/asia) Pty. Limited -v-

A.T.P.R. (Para .40-137)(Vol.2 A.T.P.R. 18,484) un which a review of the early cases dealing wath the principles relating to the

raising of an objection by a party to litigation to both the

discovery of documents and the providing of information 1f the result thereof would be to provide evidence against him which may be used to establish his liability to a penalty in other

"It ws a well established principle that a defendant in proceedings which are solely for the recovery of a pecuniary penalty should not be ordered to disclose information or produce documents which may assist in establishing his liability to the penalty (see, generally, per Isaacs d., R. -v- Associated Northern Collieries(1910) 11 C.L.R. 738 at pp.741-748; Naismith -v- McGovern(1953) 90 C.L.R. 336 at pp. 341-342; Martin -v- Treacher (1886) 16 Q.B.D. 507). Even where, as in the present case, the proceedings are not for recovery of a penalty but to prevent and redress crvil wnjury, a party to litigation ought not to be compelled to provide information or produce documents for inspection by the other party if the result thereof will be to provide evidence against him which may be used to establish his liability to a penalty in other proceedings (Derby Corporation -v- Derbyshire County

In the former case, that 1S to say in a mere action for a penalty, a court should, un the absence of statutory provision to the contrary, refuse to make any order at all against the defendant for discovery or production of documents or provision of unformatton for the reason that the whole and avowed object of the proceedings being the umposition and the recovery provision of information against the defendant can, so far as the prosecutor of the action 1s concerned,

properly have no other intended consequence (see R. -v- Associated Northern Collieries, Supra, at p.742). ......8-

In the latter case, that 1s 1n a case such as the present where the proceedings are not for the recovery of a penalty, there 1s no general rule precluding the making of an order for discovery or wtunterrogatories and there will ordinarily be no proper ground for objecting to an order for production of documents or proviston of iunformation being made. The party against whom such an order is made is left to object to producing particular documents or providing particular information on the ground that such production or provision may tend to expose him to a penalty. (See Mayor of the County Borough of Derby -v- Derbyshire County Council, supra, at p.553)."

If the State Union 1s a body corporate within the meaning of s.45D(6) and 1t 1s determined that, pursuant to the provisions of s.45D(5), the State Union is deemed to have contravened s.45D(1) as a result of the conduct of the third and fourth respondents then a percun.ary penalty not excecding $250,000 could be imposed against ut pursuant to the

provisions of s.76(1). Sub-section(2) of s.76 provides:-

"Nothing in sub-section (1) authorizes the making of an order against a person not being a body corporate by reason that the

person has contravened or attempted to contravene, or been

Accordingly if the second respondent 1s a kody corporate neither the third nor the fourth respondent could be

exposed to the imposition of a percuniary penalty for any

contravention or attempted contravention or being involved in a contravention of s.45D which might be determined in the present proceedings to have been committed by either or both

On the other hand, in such circumstances, if the State Union, 1S not a body corporate within the meaning of s.45D(6) a proceeding may be instituted in the Court for the recovery of the percuntary penalty referred to 1n s.76 for an alleged breach of s.45D by the union against an officer of the State Union as a representative of the members of the union at the relevant time (see s.45D(6)(c)(1) and s.77). In such a case the provisions of s.76(2) of the Act do not apply (s.45D(6){c)(11)) so that an order imposing such a percuniary penalty could be made against such officer. The maximum penalty that could be imposed in those circumstances 15S $250,000(s.45D(6)(c)(111)). Although such a proceeding can be instituted only against such officer, s. 45D(6)(c)(1) provides that such proceeding shall be deemed to be a proceeding against the third and fourth respondents as members of the

Any judgment or order made in such proceeding may be enforced by process issued and executed against any property in which the State Union has or any members thereof have in their capacity as such members a beneficial interest whether

vested in trustees or however otherwise held, as 1f the State

Unton was a body corporate and the absolute owner of the

Accordingly, although no process for the enforcement ef such a judgment or order could be issued and executed directly against any other property of the third or fourth respondents, those respondents would, in such circumstances, probably be tnterested in the property against which execution may be effected under s.45D(6)(c)(v). In my view, a Judgment or order in a proceeding brought under s.77 an_ such circumstances could be said to operate to effectively expose the third and fourth respondents to the possibility of the umposition of a percuniary penalty so as to permit those respondents to claim privilege against answering

interrogatories which may tend to expose them to such penalty.

Intercontinental Development Corporation Pty. Limited(1975) 1 A.C.L.R 253, by Bowen C.J. in Equity, Supreme Court of New

"Before turning to the particular questions, it us convenient to refer to the law relating to this head of privilege. ..... The question 1s as to when this objection may properly be

taken. The position appears to be that a witness ius entitled to refuse to answer a question on the ground that the answer may incriminate him, wf the answer may tend to expose the witness, or the husband or wife of the witness, to a criminal charge or penalty or forfeiture. (See R. -v- Boyes(1861), 1 B.& S. 311; 121 E.R. 730; Ex parte Reynolds (1882), 20 Ch.D. 294; Lamb -v- Munster (1882), 10 Q.B.D. 110; Triplex Safety Glass Co. Ltd. -v-_Lancegaye Safety Glass (1934) Ltd., (1939) 2 All E.R. 613; Mortimer -v- Brown (1970), 122 C.L.R. 493 at p.495; (1972) A.L.R. 723; Re John Pringle(1934), 34 S.R.(N.S.W.) 508 at p.512; Ex parte P.; Re Hamilton (157), 74 W.N.(N.S.W.) 397 at p.399). The bare oath of the witness that he is endangered 1s not to be regarded as necessarily conclusive of the matter. It ws for the court to consider from the circumstances of the case, and the nature of the evidence the witness 1s called upon to give, whether there 1s reasonable ground to apprehend danger of prosecution or forfeiture 1f the witness 1s compelled to answer. The danger must be real and appreciable, and not of an wmaginary or insubstantial character. If there is a risk, the court does not generally go into the question of whether it ls probable or not that proceedings will, in fact, be taken.

Two other comments may be made, namely, that a question which at first sight may appear innocent may, by affording a link in the chain of events, become a means of bringing home an offence to a witness,(see Osborn ~v- London Dock Co.(1855), 10 Ex. 698); 156 E.R. 620. Once the court 1s of the view that the witness 1s in danger, some latitude will be allowed to the witness in judging for himself the effect of any particular question (see Boyes' Case, supra, at p.330)".

Mr Toomey Q.C. who, with Mr Douglas, appeared for the respondents submitted that, despite s.78 of the Act, the third and fourth respondents were entitled to refuse to answer each of those interrogatories objected to on this ground of privilege if the answer thereto may tend to expose them to a

"Criminal proceedings do not lie against a person by reason only that the person- (a) has contravened a provision of Part IV; (b) has attempted to contravene such a provision' (c) has aided, abetted, counselled or procured a person to contravene such a provision; (d) has unduced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; (e) has been un any way, directly or undirectly, knowingly concerned un, or party to, the contravention by a person of such a provision; or (f) has conspired with others to contravene such a provision."

Mr Toomey submitted that the provisions of s.45D do not require the applicant in a proceeding such as the present to prove that the conduct complained of was done with the intent of causing damage. All the applicant 1s required to prove 1s an intent to do an act. He need not prove an jntent

that damage would flow from that act (See Tillmanns Butcheries

Pty. Limited -v- Australasian Meat Industrial Employees' Unton

and Others, 27 A.L.R. 367 @ 376 and 382-3; Laidely's

The unterrogatorices objected to on this particular ground were such that answers thereto may prove an intent to cause harm or damage and accordingly may tend to expose the two respondents to a criminal charge, namely common law conspiracy to do something contraryto law, or to do something

wrongful or harmful to another person, or to use unlawful

means un carrying out an object not otherwise unlawful. (as to the nature of such offence see generally, Watson and

Purnell, Criminal Law in New South Wales @ p.383 para. 1151

and cases there cited.). Such answers, 1t was claimed, would be beyond the protection given by s.78 of the Act which

applied only to acts which constituted a contravention of

I am satisfied from the circumstances of the case and the nature of those particular interrogatories that the respondents are called upon to answer that there 1s reasonable ground for those respondents to apprehend danger of prosecution for common law conspiracy or of civil actions for percuniary penalties. Accordingly, in my opinion, neither

respondent is required to answer those interrogatories.

Further, 1f a contrary view 1s taken regarding the danger to the third and fourth respondents of prosecution for common law conspiracy or of civil actions for percuniary penalties, I am of the opinion that those respondents are entitled to claim that those questions to which the claim of privilege has been made are in fact oppressive within the

This objection reads "that the interrogatory seeks to

question me as to my state of mind". In support of this ground Mr Toomey relied on the decision in Service and

Anor.-v- Coote (1891) Vol. 17 V.R. 40. In reply Mr McIevitt

relied on the decision in Jordan and Anor.-v- Sanders and

Anor .1934 S.A.S.R. 424. No reference was made to Service -v-

Coote in this latter decision. I understand the judgment of

Webb J. in Service -v- Coote has been followed both in the

Equity Division of the New South Wales Supreme Court and in the Victorian Supreme Court for many years. In my view that decision should be followed. Accordingly un my opinion this

ground of objection, where taken, has been validly taken.

For the reasons set out above the Notice of Motion 3s

I certify that this and thetmesrs, 9 Ad rreveding pazes are a true copy of the Reasons for Judiement herein of his Honour r Just-ce punil

IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY No. G61 of 1980.

AND: TRANSPORT WORKERS! UNION OF AUSTRALTA AND TRANSPORT WORKERS' UNION OF AUSTRALIA NEW SOUTH WALES BRANCH AND JOHN BARRY McLEAN AND DAVID ARTHUR McNALLY AND GEORGE HENRY McKAY.

ORDER JUDGE MAKING ORDER: FRANKT J. DATE OF ORDER: 15 August 1980. WHERE MADE: Sydney.

Upon the applicant by its Counsel undertaking to pay any party adversely affected by this Interlocutory Order such compensation (if any) as the Court thinks fit,

1. The second respondent, Transport Workers! Union of Australia New South Wales Branch, by itself, its servants and agents, the third respondent John Barry McLean and the fourth respondent David Arthur

of the proceedings in No. G.61 of 1980 or further order from engaging in conduct in contravention of s.45D of the Trade Practices Act 1974 in concert with any person that hinders or prevents the supply of aviation gasolene or other petroleum product by Mobil Oil Australia Ltd. to any driver of a tanker vehicle of Navair Pty. Limited who 1s not in breach of the Transport Industry - Petroleum etc. Distribution (State) Award of 18 April 1980, where such conduct is engaged in for the purpose and has or would be likely to have the effect of causing substantial loss or damage to the business

hours notice to the other parties to apply generally;

NEW SOUTH WALES DISTRICT REGISTRY No. G61 of 1980. GENERAL DIVISION

AND: TRANSPORT WORKERS' UNION OF AUSTRALIA AND TRANSPORT WORKERS' UNION OF AUSTRALIA NEW SOUTH WALES BRANCH AND JOHN BARRY McLEAN AND DAVID ARTHUR McNALLY AND GEORGE HENRY McKAY

I consider that this is a matter in which I prefer to give oral gudgment, rather than to delay to express my reasons, perhaps more fully in a reServedjudgment. This is an application under section 80 of the Trade Practices Act 1974 for an interlocutory injunction to restrain conduct

said to be in contravention of section 45D of the Act. The

application is brought by Navair Pty. Limited, a company which operates approximately 30 aircraft from Bankstown Airport. The aircraft are used for flight training, air

The first respondent is the Transport Workers! Union of Australia. I am not satisfied that there is evidence

The second respondent is the Transport Workers! Union of Australia New South Wales Branch, and it is admitted that it 1s an industrial union registered under the provisions

of the Industrial Arbitration Act 1940, New South Wales.

The fourth respondent is David Arthur McNally, an employee of Mobil Oil Australia Limited, which I will call Mobil Oil, which operates a depot at Bankstown situated

within the airport perimeter. It is admitted that he is

The fifth respondent is George Henry McKay, but there

The applicant refuels aircraft at Fankstown Airport utilising a mobile fuel tanker vehicle. Prior to a time towards the end of May 1980, the tanker had been driven by two employees of the applicant, at least one of whom was a

It was the practice to drive the tanker to the Mobil O11 depot in the airport where it was filled, either by an employee of Mobil 011 or by the driver of the vehicle. It was then the practice to drive the tanker to the various

On 18 April 1980 an award was made under the New South Wales Industrial Arbitration Act entitled "Transport Industry - Petroleum Etcetera Distribution (State) Award".

"Preference of employment to members of the Transport Workers! Union of Australia NSW Branch shall be in the following terms:

(a) In the employment of persons by an employer no discrimination shall be exercised against members of the union,

(b) Where a worker other than a member of the union 1s engaged, such worker shall within 14 days after commencing work make application for membership of the union and if accepted shall complete such application.

(c) Workers at present employed shall within 14 days from the date on which this award takes effect make application for membership of the union and if accepted shall complete such application.

(ad) Any person who has made application for membership of the union in accordance with this clause, and whose application is rejected, and any person expelled from membership, shall be deemed to be

a member of the union for the purpose of this award, except a person struck off the register for arrears of dues."

Whilst it is necessary to express some views upon the evidence it must be remembered that I am only forming

such views as are appropriate for interlocutory proceedings

and that nothing I say is to be regarded as a conclusive finding relevant to the determination of the application for a permanent injunction when that application comes on for hearing, or relevant to any other proceedings which are

It would appear the principal task of the driver of the tanker, for example, before 7 August 1980 - one was a Mr Namroud - was to operate the tanker for the purpose of refuelling aircraft, and this would appear to be within the definition of "aerodrome attendant" in clause 2 of

I reiterate I am making no finding to this effect, and point out that there is no evidence before me as to the scope of the Carters Etcetera (State) Conciliation Committee, and it seems that the award only applies to employees referred to in clause 1 of that award. I am simply saying that on the material before me it appears likely that the driver of this tanker, at least in the past, has been within that

Since about 23 May 1980 attendants employed by Mobil Oil have refused to allow the applicant's tanker vehicle to be filled with fuel at the depot. On about 30 May 1980 the respondent, Mr McLean, addressed a meeting of aircraft operators, saying in substance that there was a dispute because the Transport Workers' Union wanted the award enforced, and that the award was the law of the land and that anybody who refuels aircraft must be a member of the

Mr McLean also produced on that occasion a copy of the award. There was some question whether Mr McLean used the word "dispute" or instead, the word "ban", On 21 July 1980 the fourth respondent, Mr McNally, telephoned the managing director of the applicant, Mr Hazelton, and complained that the applicant's tanker was being refuelled at night, and said that 1f this was seen to happen again ' we will turn off the power for the key-lock system and

It seems that after normal working hours there was a bowser where fuel could be obtained, but that that bowser was locked and that the applicant had in its

On 25 July 1980 the fourth respondent refused to fill the tanker when driven to the Mobil 011 depot by Mr Hazelton after the fourth respondent had asked him - that is, Mr Hazelton - whether he had a union badge and he had said that he had not.

An application was made to me in chambers on 30 July 1980 to grant an ex parte injunction, but I refused to do this, and this application._that is before me now was filed on 4 August 1980 and served on the second respondent on 5 August 1980. I think the affidavit of service, which I have looked at, said at about 3.20p.m. on that day.

The third respondent said in evidence that since 1969

the oil section of the Transport Workers! Union has been in

dispute with Mobil Oil Australia Limited on many occasions

over the issue of manning at Bankstown airport. He also said that in early April 1980, before the award which I have mentioned came into force, there were discussions between him and others and Mobil Oil concerning issues of safety, manning and the use of non-union labour. I am not impressed with the relevance of those aspects to

It seems prior to 5 August 1980 the applicant had been able to fuel its aircraft at Eankstown by taxi-ing the aircraft to the bowser at the Mobil depot but that union action prevented this since about 5 August 1980 and that this union action applied not only to the applicant but also to the Royal Aero Club of New South Wales which habitually used its own tanker to refuel its planes at

I make reference to some allegations concerning the way in which members of the Hazelton family performed work but I am not impressed with the relevance of that material un these proceedings. I consider thatiw'Iregard Mr McNally as the first person, Mr McLean, or the second respondent, as the second person, Mobil Oil Australia Limited as the third person and the applicant as the fourth person within the words of section 45D, and I think it 1s appropriate so to do, then there has been conduct between the first person, Mr McLean and the second person, either Mr McNally or the second respondent which, so far as is necessary for the

proof of a prima facie case, should be regarded as having

been engaged in for the purpose and as being such as would have or be likely to have the effect of causing substantial loss or damage to the business of the applicant. I have

in mind section 45D(5) in relation to the second respondent.

It was submitted on behalf of the respondent that any relevant conduct fell within the defence provided by section 45D(3). However, without dealing with this section in precise detail in relation to the particular facts of this case, it seems to me clear that looking at the matter as I should look at it in regard to the establishment of a prima facie case, the dominant purpose for the conduct engaged in was for the purpose of ensuring that persons who drive the relevant tanker were members of the second respondent. It seems to me as far as is relevant for determination of whether a prima facie case exists that

I then come to consider the balance of convenience and also the question of the court's discretion. It seems that the applicant is managing to get its planes refuelled at places other than Bankstown airport but this involves considerable extra expense to the applicant. There has been some delay in bringing these proceedings to court but it has been previously held by this court that the ordinary principles of laches and other equitable principles which have been worked out in the Courts of Chancery do not necessarily, they may but do not necessarily, apply to applicants under section 80. It was dso put to me that damages would be adequate if the applicant ultimately

directions, will not come on for some time. But this court has habitually given interlocutory injunctions in relation to the trade practices field, Part Four of the Trade Practices Act in particular, and I think that this is a case where it is appropriate to consider that damages would not be the only remedy to which the applicant would be entitled if it suceeeds ultimately and not the only

Any order which I would make would have no effect on any conduct which was not in breach of the Act and I am also careful to ensure that any such order would not be one which would encourage conduct in breach of the award to which reference has been made. On the balance of convenience I think an order is appropriate. No legitimate business of the relevant respondents or any other persons would be affected by the order but undoubtedly the business of the applicant is beng serioysly affected by the conduct of the second, third and fourth respondents. I consider that a critical question in this case is that arising from examination of clause 40 of the award to which I have referred and I think this 1s a very important question in relation to

It seems to me that this is a matter that I have to bear carefully in mind. I consider that the court should proceed on the basis that the award is validly made although, as I have said, its scope 1s by no means clear on the evidence before me. If I were to grant an order sought in

the application limited in terms to conduct in contravention

of section 45D, although the applacant would not be, so it appears, in breach of the award by engaging a non- union driver, if a non-union driver were employed and he did not apply for membership of the second respondent within fourteen days of commencing work it would appear

There is no evidence whether at the time the trouble began in May 1980, Mr Namroud had made any application for union membership, I am not, of course, concerned with whether any person has or has not applied for union membership, except insofar as that question relates to

a provision in any relevant statute, regulation or award.

Mr Hazelton, in paragraph 4 of his affidavit of 42 August, said that on 16 June 1980, he told Mr McLean that he would become a member of the Transport Workers! Union and that Mr McLean said he would send him the necessary papers, but at the date of the affidavit, no

An undertaking has been tendered today on behalf of the second, third and fourth respondents in a form, exhibit 1, but that undertaking does not seem to me to be adequate, having in mind the terms of clause 40 of the award assuming, as I have, somewhat against the

As to the general approach to be made to applications of this sort, there are a number of cases to which I

suppose one could make reference, but I refer generally to

the gudgment in Industrial Enterprises Proprietary Limited

against The Federated Storemen and Packers Union of Australia, and I am looking at the report in Volume 2 of the Australian Trade Practices Reports at paragraph 40,100. No application has been made to the court under section 80AA of the Trade Practices Act. I propose to make an order in the folowing terms. Having said what I have

said, I do not know whether either counsel wish to add anything to what was said before as to the form of the order. I think it has been fully discussed and the order

I make is this, upon the applicant by its counsel undertaking to pay any party adversely affected (that party means party to these proceedings) by the interlocutory orders I am about to make, such compensation (if any) as the court

I order: (1) The second respondent, Transport Workers Union of Australia (New South Wales Branch) by itself, its servants and agents, the third respondent, John Barry McLean and the fourth respondent, David Arthur McNally, be each restrained until the termination of the proceedings number G61 of 1980, or further order, from engaging in conduct in contravention of section 45D of the Trade Practices Act 1974, in concert with any person that hinders or prevents the supply of aviation gasoline or other petroleum product by Mobil Oil

tanker vehicle of Navair Proprietary limited who is not intreach (and I have eliminated the words of clause 40, which I had suggested before) of the

Distribution (State) Award of 18 April, 1980, where such conduct 1s engaged in for the purpose and has or would be likely to

(2) I grant liberty to any party upon 24 hours notice to the other parties to apply

Now, those are the orders that I make. I add these comments, that I have eliminated the reference only to clause 40 of the award in the first order. I would also add these comments, that 1n the event of any application to apply coming before a Judge other than myself, I would not regard this-~judgment as inhibiting any view which that judge might wish to take at the time any application might come before him. I think that covers the matters that are proper to cover in the gudgment. If anybody would like me to read that