Wribass Pty Ltd & Swallow, John Edward & Australasian Meat Industry Employees' Union [1979] FCA 2

Wribass Pty. Ltd. or the imposition and implementation

required by the plaintiff from S.P. Holman & Sons Ply.

inducing any person to act or acting in concert with

any other person or persons in the engaging in any such

conduct or the continuing or implementing of any such ban co

attempting so to aid, abet, connsel, procure or induce; (b) aiding, abetting, counselling, procuring, being

any person whatever to engage in conduct in concert with

plaintiff from obtaining meat products for the purpose

2, 'these proceedings so far as they relate to the questions of dumage cr penalty be adjourncd to a date to be fixed

3. the defendants way Lo the costs te be taxcd by the Distries Registrar of

and incidentol to tbcse proceedings and the costs in the interlocutory proceedings herein which have

This is the trial of an action in which the plaintifs

secks relief against the defen Industry Employees Usion Cthe Union) and its Tasmanian

Branch Secretary Mr. Swallow, by way of injunction and damapos. Th: relief is sought in respect of the conduct of the defendants on 24 October 1978 and thercafter in the months of October and November State dustriih Relations to Lior to protect the the industry in ge to protest and p x 1 ip. Whe Secretar it ond nas been he is directed ta teps and 1 the

action to date comes arene rary and cor continue to take and advi to nan the mem )

ever vesour ces y to safeguard our intere necessary _for the Secretary

to enyre authors that the Committe requesting 42 noon Ho

s Burnie Supermarket be QO, 1978, the date set for alow the Secretary carly resolution to

orvoblem this meeting ana we cali. _ upon the Hou iW members

2, To resolve the urpes discussions w: Ebtule Covernmicut to to protect the woweinne CONG retail section.

that these matters can only he i arena and sot by legal means,

4, This meeting declares full support towards the industrial : jded

ction are kept full hold at 2,00 Oe case of the Hobart ap Wy 41978)

5. So as the me mbors informed a repo : on Filany Dec meeting the date

It appeers that the ban im fact was Lifted on or about 16 November.

In connection with the ban, Mr. Swallow communicated with $

various wholesalers from whom he thought that the plaintire night endeavour to obtain alternative supplies, He informed

them of the proporced or existing ban and indicated to them

expressly or impliedly that it would not be wise for thein to

supply meat to the plaintiff witie the ban was operative.

Certain wholesalers @id secretly supply some meat to the plaintiff in the dead of the night and Ly other subterfuge, endeavouring to conceal from the Union that thoy were doing so. But the supplies so obteined by the plaintiff were Lar below

it would have been impossible for the pieinci ty to continue to

The employees of Holmanwho on October 23 voted for end acted

accordance with the ban on the plait were portly enploycc.s

usually employed in the wholesale section of Nolan's business and partly employees usually employed in the retail section, It was the employees in the wholesale section who implemented the ban.

There was 'some changeover ff between the two sections but o:

to a very Limited extent and rt sricted generally to filling in

for staff in another section who wore temporarily absent through

sickness or for some othor specigl reason, Im relation to the

arisine under s.45D(4) it is material that all the employecs

nombere of tle Union wie valed Pos sod aebed da sccordan

bin on the nilsintirtt wore cemzevecs af dhe ore enployer,

It is apparent that the ban and its implementation were in accord with Union policy and that Mr, Swallow has actec with the authority of the Union in talking steps designed to procure the imposition of the ban and to make it effective. However, Miss Hickey, counsel for the deiendants, has contended that on the

vened the provisions of s.459(41) and that the circumstances arc not

such that by reason of s.49N(5) the Union is to be deemed to have

contravened these provisions. She contended - (i) it does not appear that the purpose of 'the employecs | in imposing and firpiementing the ban was to cause |

substantial Loss and ingury to the plainbiff in its

(44) within the meaning of s.45D(4) the dominant purpose of the relevant conduct was substsntially related to the hours and conditions of wort: of the employees who compitted it in their employment with Holman cr of

(i244) thet in any event the Unien hed taken sll reasonable steps

to prevent the participants in the relevant conduct from

engaging in that conduct and sccordingly is not to be

Gecmcd to have acted in concert with the participants in

(iv) that it did not appear that Mr. Swallow had personally aided and abetted the employees in their conduct in

ation to the impositisn oie implementation of the ba;

1. : sae x + U .. +. de c (v) thet, in any event, Me. Swallow acted honestly and reasonaply and having regerd ta all the circuinstances of the case ought fully to be excused jrursuant to

(vi) it dees not appear thet the relevant conduct has or would be likely to cuuse such Joss and diugjury;

(wii) that the ban hed been lifted and it does not appear that

Miss Hickey submittee that oi the evidence the propor inference is thet the real purpose of the ban end its implementation was to protect the work free Saturday morning of the empil.cyees who imposed snd implemented it in their employment wie

Holman or of their fellow cepioyces end to a iesser

the free Saturday morning of empleyees engaged pencrally in the reir

butcher business in Northern Tasmania and not to injure the plaimtliy

in its business. She conten intention of the employees whe lusposed and implemented the ban the

Court should adopt an approach similar to that taken by the

the cause of action was based upon acts done in furtherance of a

'conspiracy allegedly for the mepose of injuring the plaintiffs in

secretary in connection with Unab vefusal. The Tigh Court look

the view thet although the resuil om even the intention of

the defendant in his actions was from engagement by the empluye: unless they ccuseda to support a rival Union the real purpose of the defendant

was to pro held that in view of the cxistence of that real purpose the conduct

"Tt appears n or acts dene in tu able jin such ci: conspiracy act in pur the plain true, on th: conspilrecy has slows House of Le which necessari! exercise of his enough, Wor j intendcd if

. defendants 3 ingury but of cor inp. way required for the edvenconci defendants! trade or voculjouul

Where the cause of action is not based upon an alleged combination or conspiracy to injure but von cenduct engaged in by two or more

s.450(41), the question is net what is the real vi-timate or iseina

45p(2) that a person is deemed to cnpape in conduct for &

However, suppor er Cirat contention ta a sli different way Mies Hickey said that the dnMiction of 1

damage upon the plaintir tits business was not a purpese of the participants in the relevant conduct at cu becouse their whole concern was with their hours of work, She urged that therotis 2 Gistinction to be drawn bc purpose and censegucnce soa uve any 'loss and dan suffered by the ploiutirs was but incidental to and a mere consequence of the pursuit of the one and only purpose. Miss Hickey subaitted that the protection of the

a incidentetly from it to a a defence under s.45D(4) e submissions it is conveni

acting in concert with cach other. In 5. A5D(1) the impropricty which is proscribed is engogivg iv coriduct that hinders or preven the supply or acquisition of goods and services where that conduct is engaged in for the specified purpose and doing so

in concert with another person, The critical and specivied purpose is the purpose for which the conduct itself is engaged in. Similarly in s.450(5) the dominant purpose therein specified is not the dominent purpose for which the participants may act in concert, but that limited purpose for which the conduct which hinders or prevents the supply or acquisition of goods and services is engaged in,

The conduct in which the parcvicipants engsuged was to refrain from handling meat supplies for the pleintiff, Such conduct may have been engaged in for various purposes, Clearly one such purpose and the most Limited was to cut off the

pleintiff's meat supp? damage the plaintiff's business as to force it to cease to trade in fr esh weat on Swturday mornings, Each of these

purposes was @ purpose for which the actual conduct itscli

was engaged in ¢ Of course the conduct wes engaged in in concert with the intentic of achieving something which would tend to procure the work Pree Saturday morning. In other words the motivation of the

conduct the dominant purpese of which was to force the pleintitr

to give up Saturday trading in fresh meat wos to contribute

Tt appears to me thet in the context of s.f5D the concept

conduct was capable of achieving In velation to the

conduct which prevented supplics of meat reaching the

plaintiftl that particular conmluct could achieve nothing more cessation of emaine crading in fresh meat by the

plaintitfr, conduct, The wider and ultiwcte purpose of maintaining the work free Saturday morntug was the goal which it

was hoped and divtended would be promoted by achieving the

eon lapels eM pat ee . San canduct was engaped jin,

If 8.45001) and 49N(4) eve constieucd py reference to

which are present if in relation to the identification of purposes ome is required to sech, nob thie purpose of the actual. conduct but the ultimate purpose of the participants

performing that conduct dn oo where it may be proper to infer that the exercise of the

participants taken as a whole vos to protect their hours of work in their employment AL couls hardly be said that thet

Indeed such a purpose by its very terms relates intrinsically

The submissioi was thet ones Pt epoecered that the participants

renuinely Belacved rightly or wronsty that bhe action taken 5 & 3 3

by thom wes appropriate to ward off atthreat to their hours of

those hours of work. Sho said that subject perhaps to the

element of substantiality bedug @etermined objectively the j & J y

rest of the relevant conception was to be detcnmined subjectively according to the state of mind of the particpants. If this

were the intention of the Jegislature it might wel] bave been

expressed in simple eud direct Language rather than the 'tortuous expression in the opening words of s.45D(4) (se). Hirt if the relevant purpose for both s.45D(4)(a) 3 s the purpose

of the coniuct that hinders and prevents rather than the vlidmate result thot might be promoted if that purpose were achieved, that tortuous Languoge coulaG hardly be evoided., In this

No. 81 of 1977) may wated with that used in s.$7(2)(a) as in force before it was Geended by Act No. 81 of 1977

and indeed Uhe Jainmited range of the expression in thet

araproph is apparent from the gaudenent of the majority in {> it 2

ature having put its hand to the protection of traders from condvet that hinders or prevents P

the supply to or acquisition by them of poods and services

but withholding that pr ction dn cases where the conduct

is substantially relatcd to the hours and conditions of

employment of Uie participants could not be thought

If in this case one seoks the purpose o: the Gomiuaorh purpose

Holman to the pl rf the avevoer is clear. The purpose was to

compel the plaintiff? to give up feturday Morning trading in

packaged meat anc to do so by substantial loss and damage

to its business vuelil it did. in my opinion this was the purpose of those ects end omissions of the participants whereby the meat

In the light of these considerations, Uhe submission thatthe causing of damage to the plaintiff in its business was not a purpose at alll because of the presence of the over-riding ourpose oi

om the Co-Workers protecting the hours of work of the participants/ Loses its force.

lf one is Looking only at the conecuct that hinders and prevents,

and not st the exercise in jivs tot Jtys that last menticaed

purpose is not seen, and is not present. The conception of the purpose of the conduct that hinders and prevents is narrower than the concept of the purpose of the participants! exercise considerec as a whole. In my opinion this is the cffect of s. 45) on its

In connection with the defendants! first contention it

remains to consider more particularly whether in fact the

participants refrained from hand plointiff from Holman for the purpose of causing substuntial Loss damage to the phointiff. Tnomy opiuien the answer is in the

affirmative. Miss Nickey said that the cvidence just did uot

Givelose Chat the purpose of the eeptoveon who dinosed the bun tac

jiimplemented it was to cause hess on damage to the plaintiff's

to the plaintiff, But the meu. was to put pressure on the plaintiff by depriving it during

the period of the ban of meat to sell in its business. A ben

which did not cause substantial loss and damage would be unlikely is) J

apply any pressure Ti carmot be doubted thet the purpose of the ben and the cutling of f of the plaintiff's supplics was to cause sufficicnt loss and damage to the plaintiff's business to compel it to comply with the deinands of the Union. Mr. Swallow quite fraukly agreed that in substance, the purpose of the ban was to make things uncomfortable

for the plaintiff in whatever way the ban might operate.

the plaintiff's choice, Inevitably it was Hobson's choice,

plaintiff had do give in or teke the consequences. And it is to be observed that the ban wes imposed on 25 October 1978 after Mr, Swallow informed the noeting of that date of

action already taken by him which included intimations to other wholesa lers not to supply the ploivliff when HVolman

did not. <Accerdinply the decision by the employees of

Holme not to handle meat for the plaintift was taken in

the knowledge that the plaintiff would be in difficulty in obtaining alternative supplies. It is not for the defendants to say that the relevent concuct would cause no loss or

ban would apply wntil the plaintiff gave in was one theparticipants in the conduct bad no right to impose and 'the

Levant conduck vas to Sorco the phaineirf ageg moat on Saturdvy moraings, Accordiugl

if this purpose was subete of work of the participants in the relevant conduct,or of their

5o(3)(a), It is a rational v re pludmbixtl die an fact impe

work free Saturday materiolly that would be a ractor

employes by re | veriation in the existing aprveciment as to the hours of work to

be performed by employees dn accovdsnee with the terms of

establishes on a balance of pro ities that the continurs

to have a material imact on t hours of work or working condi tions

The imposition of the ben was as stated above, effected

by resolution of a meeting of cumloyees of both the wholesale and

retail sections of Holman, Bub the relevant conduct in implcmoentavia

of the ban was conraitted by ell the eapleyoes in the wholesale secu

Nlolman and refrained from the bend.a of it. The employces of

It is not suggested thet the comingint purpose was vellated

to the hours or conditicas of work of, lhe employees in the

wholesale sccetion, but it would sec that it would be sufficient

for the defendauts to show that the purpose in guesticn was

substantially related to t hours ond conditions of the employees in the retail scetion, each of such employees being

Nanotuer person enployed Iv an employer of" one of the

participants, Nvidence relationship between the plainiiffl selling packaged meat on Saturdays and the hours worked or to be worked by the cmployescs

of Holiwan in its retail section was piven by two crployces

of Holman as well as Mr. Oswin, Mc. Swallow and Mr. Holman,

The two employees who gave evidence were both employed in Holmen" s retail section, Mr. King said he voted for the resolution

which was carried on 23 Cctobar 1978 because Mr. Swallow put

' to the meeting "the case about Saturday morning trading," Tt

appears that he understood that case to be that if the pleintilf

continucd to sell packegod meat on Saturday moimings super-

markets and retail butche weuld open, It eppears also that

Mr. King accepted this "casc" partly because of his experience of what had happened in Melbourne in 1952 when the market in Prahran commenced to trade on Seturdeys during

the football season from April till September, He expressed

"Tt only needs one person in Tasmania to open and within twelve months the reat will fal into Line"

However, when Mr. King 3 wd whether he thought that the possible Cevehopmcsre bo which he rmterred would lave any dinpact

"Tt most cer cnployed by ' IT have to po te a eu and if the tos That was the enjoy the hovers ¢ that we are ald until. th 1

ww ta be reettioL my Lite. Tt toor a butcher shop on Geeky i i Ws. dacs not mez Loyed at Holmer 'iod."

for the plointiff stressed, that nobvithstuudcing the

possible deveiopnenls 4 New King had in mind he aid not

Holman would be Ti. would be only if he charged his employer that he he mieht have to work on Saturday morniags., It indicates also that the possibility of Mr. King

changing to some other cupiover was not in Mr. King's

contemplation seve that change from time to time may be in the nelure of auy vornhing imunts Life. Tt indicates

his enployment and did met y Jihelihood of a change

thought was that of the other onployees wnen he said:-

meat, He said he was ip favour of the ban being imposed on the

plaintiff because "should they open and everybody Lolloy we would, we naturally thought we would be opening and working a six day weck", Asked whial made him think everybody would Lollos

. on _ os: bon wat? o. Lt tod Mob be ong wil hoe, filehcino wan net @ whens ©

conviction, It is my conclusion that'he wos echoing the view of

possible effect of the pleir f's Seburday trading on retailers penerally and was not intending to state that

he feared a change of novi Reliance could not be niaccd on his statement that there vas any real possibility that within the forseeable future Hollins would open on Saturday wornings and require ivs

retail butchers staff to work on Saturday mornings, if i

! inéeed that were his view. Much more reliable is the tmpliied

assertion by Mr. King that teking all the possibilitics into account, even in the event of the plaintiff continuing to trade on Saturdays in packaged incat he did not foresee

Holman opening for retsil business on Seturdays. It is for

relationship between the plaintiff continuing to trade on

Saturdays and the hours that the retail butchers on

Holman's stafr muy pe rea sa to work jn the immediate

It is to be observed that Holman employs in the vicinity of a lndred men in the wholesale and export and other sections of its business and about twelve in the reteil scetion, Its premises ere three to four km. "out cof town" and avay from the main business

area of Deversport., Devonport is over 50 km, from Burnie.

Since 1966 the treding hours of Nol retail shop have

been from 7 am. until 43 pum. Monday to Friday, The trading hours of retail butchers in Devonport are from some

director active in the man: has no plans to open its retail shop on Ssturdays and that Mr, Holman does not anticipeste circumstances arising which

"Location Holmen docs not conforin to the greneral ES

Devonport rote ling hours, Mr, Holman put it that "it is a situation... peculiar to ourselves inasmech as we are isolated from the

(b) penalty rates of time and a half for the first two hours and Gouble time thereafter are a

(c) the employees are against working on Saturday morning and gocording to Mr, Holman, that would be a "Lorcuost" factor and "if it Lis_7 the wish of the amiployees not to work on Saturday

Asked whether 2% the se wwkets in Nevouport and the

retailers opened on Saturday morswing iat would affect the Company's policy Mr. Helmsn seid, "yes it could have an effect, but without it coming into being I would be rather

hypothetical situation which jn all boneaty IT cannot anticipa He agrecd that where seme tragers decide to open on Saturday

mornings some of the otners be forced to follow suit

oY and that had hanpencd dn Deverport Lo some extent, But Mr. Holman Cid not anticipaure Thek a vation in which his comprmny

would have to consider openias on Saturday mornings was Likely

decision on the point would be likely to make if it did.

But Mr, Swallow asserted that in the circumstances which

had arisen in Burnie sines 29 duly Jasv it was extremely Likely

that wiless the plaintiry' ce: to sell packaged meat on Saturday

mornings the superman would be forced to trade om Savurdays., As noted above on 29

July certain supermarhets which did not formerly open for

business in Burnie on Seturday waornings decided to do so and

have since done so. Hovever, they did not trade in fresh

meat, Mr. Swallow said that iy the supermarkets and retailers \

opened in Burnie the same would occur in Devonport and generally throughout the North Coast at least, Ue said that in past

to years it was part of his function as Secretary of the Tasmanian

Branch of the Union to be alert to discover if any and what

was a persistent' trader au pucheged jigqat on Soturdays, that

Mr. Swollow wowld protest fvon time to time and that Mr.

Singline would heed the pretest fer a time and then resume

selling meat on Saturda: In the case of Mr. Singline, Mr.

Swallow was only twenty pox cent ceesstul and the fuct is

has been selling packaged meat on Seturday inornings for some Gight years, Tt eppears that in or about 1068 an agreement was effected with the Meat and Allied Trades Federation in

retail on Saturday mornings. According to Mr. Swallow

representatives of any retasler commence to sel meat on Saturday mornings all

various supermarkets, includ: New World, abthousn not

members of the Federation accept the agreement, but have stated

Saturday or Sundsy they reserve the right te trade on Saturdays and not only will they have meat for sale but will be cmploying

Mr. Oswin who has been the Secretary of the Tasmanian Division of the Meat and Allied Trades Federation of Australia since August 1978 gave cvidence that the Division's members comprised ninety percent of the retail butchers and supermarkets of Tasmania and thet the Division was opposed to trading hours outside Mouday to Friday 7 a.m, to 6 p.m.

The Division does not Tike to see retailers poing outsice those

to go into the reteil market to compete with the supermarket, ;

He said thet the policy of the Division was that if the 1368

agreemsrt is broken by supermarkets retail butchers will have

to trade on Saturdays to retoin ti understood that if the agreement vere Broken "it has @lvays

continuing to trade, however, certain gpencral considerations

are relevant. Clearly Mv. Swallow end Mr. Oswin are concerned to maintoin the work free Saturday mornings for retail butchers. Both are apprenonsive that a material breach in the general

general breakdown of the prectice. No doubt employers are

very willing to convey to Mr. Swallow the idea that they will sell meat on Saturdays if other traders do or perhaps if any one trader does, If Mr, Swallow can be encouraged to remain vigilent and bring his influence and that of his Union to bear on any trader who shows a disposition to depart from the cxisting practice thet is all to the good for them, The statements mad by the Supermarkets ond others to Mr, Swallow are therefore to be treated with reserve, It is a feature of this case thet although, the supermarkets have heen opening on Saturdays since July they do not sel] meat on Saturdays. According to Mr. Swallow iff one trader breaks the others will follow suit within a week, The fact is that Lreders in Burnie have not followed

suit during the lest eight years. When the supermarkets opens

Saturdey trading in Burnie on 29 July last that change in trading

Mast have beau pursuciek Lo oolicy Geoisiorsal high

mamgeemorh evel. Whom thes podiey ccedsiens ware made

one mabter decided mink have peen that despite the Long

standing practice of supermarkets would not fo]iew svit. To my mind olso it is

signifi cant that no executive officer cf any supermarket av has boon called to give evidence, If it be the fact that whe

meat on Saturdays by the super the plaintiff continucs to sell on Saturday, although ac was not imminent last July, that fact should not have been

decided that if the plaintiff continues to sell meat on |

Saturday, and certainly if the supemserhets do so he willl follow

suit that would not be difficull to prove, he fact that

failure to submit any evidence lung those lines perhops oO + ]

the more sienificant. he only active trader who gave evide 5 5

selling of meat by retail were to cprced to Devonport, ard subgest

to commercial imponderabies, certainly does not anticipate ever asking his employees to work in his retail shop on Saturdays. The reality seems to me to be thal neither 'the supermarkets nor the retailers desire to sell meat in Burnie Salurdsys or perhaps parts cularly, to cmploy retail butchers at venalty rates, I am nov setisficd that it is probable that they will be induced to change their practice in this

respect in the near or even the remote future because of the

Those factors which have opere: supermarkets other thon che paeimwasr mot to sell meat on

in the trading pattern occurred in Burnie it cannot be thought . '

probable that traders in Devonport would extend their meat

Finally if the selling of meat on Saturday mornings did spread to Devonport it cannot be said to be probable that Holman would open on Saturdays. Accordingly I am not satisfied on a balance of probabilities that the dominant purpose of the conduct engaged in by Holman's employees, namely to force the plaintiff to discontinue its practice of selling meat on Saturdays is substantially related to the remuneration conditions of employment, hours of work or working conditions

of those employees or of any other employee of Holman,

I am unable to accépt the contention that within the meaning of s.45D(5) the Union took all reasonable steps to prevent the participants from engaging in the relevant conduct, The truth is rather the reverse. It has been Union policy since 1968 that where there is any attempt to trade outside the five day working week, Monday to Friday inclusive, supplies of meat to the offending retailer should be stopped, Mr. Swallow said that the policy was clear, he had no discretion, and his

When the matter ceme up for Union re-consideration as a result of these proceedings the policy was in substance affirmed.

Certainly the Union has so acted that the ban on the plaintiff

and its implementation has been suspended until this case has been decided, but it is clear that but for the intervention

of the Court, and subject to any order restraining the

defendants from taking action to enforce the ban, the probability is that it- will be enforced, The following passage in Mr,

"MR HEEREY: And assuming the supermarket does not bow to your wishes the ban will go back on?--~The wishes of the membership, Mr. Heerey. It is quite obvious why the resolution was carried in this vein; the members believe we can win it in court,

I suppose every litigant believes he can win and I do not blame you for that, However, the fact of the matter is if you do win the ban goes back on and unless Singlines Supermarket agrees to the union demand the ban will stay on permanently?-~-I would put it this way, that if we win and we expect to - the supermarket proprietors will see that they are doing the right thing and step into line with that agreement,

Step into line under threat of a ban?~--I did not say that. There are all sorts of things that happen when they get beat in court,

If they do not step into line?--~I believe the supermarket proprietors are reasonable fellows. They have not done

the right thing up to date but there is no reason why they will not when they get defeatec here in the court.

If your prediction turns out to be correct and they do continue to trade as they have before, the ban will go on will it not?---That will be up to the members of the union, will it not.

You do not expect any change from their previously expressed attitude, do you?---Not at this stage. It is over- whelming really, a unanimous decision."

It is clear that the ban and its implementation proceeded

with the full support and encouregement of the Union and it was only after the ban had been in implementation from 23 October to the middle of November Jast that the Union took any action

Lo prevent further commission of the wreneful conduct. It

• tc

did so then only to comply with Lhe requirements and

_ ey eee eet py the Court it is likely to approve the revival and implementation of the ban. '

I am satisfied that Mr. Swallow has personally aided and abetted the participants in the imposition and implementation of the ban. He personally took action designed to ensure that the implementation of the ban would be effective in depriving the plaintiff of all meat supplies. It was ne who having ascertained that the plaintiff would not conply with the Union demand that it cease to trade in meat on Saturdays,

searched for and found that the plaintiff's only wholesale supplier was Holman and intimated to it that there would be a ban on further supplies to the plaintiff. It was Mr. Swallow who called the meeting of the relevant employees and put before the meeting the "case" referred to by Mr. King. That his conduct _was Gesigned to encourage and indeed to procure the imposition of the ban and its implementation is quite clear, Indced Mr. Swallow regarded it as no more than his duty to do so. That he so regarded it is not relevant to the question whether or not he and abetted the participants in the commission of the relevant ca

See the remarks of Viscount Simon L.C. in Crofter Hand Woven Herr

Ltd , Tweed Co/v, Veitch (supra) at p.441, and Industrial Enterprises

v. The Federated Storemen end Packers Union of Australia. (supra)

In view of the adjournment of these proceedings so far as they relate to penaj.ty or damages which is part of the order to be made this @ay, it is unnecessary to deal with the

substantial loss and damage to the business of the plaintiff

and that it would have continued to cause such loss and

damage so long as the participants engaged therein. The circumstances were such that the plaintiff was unable to

obtain adequate alternative supplies and that its capacity to obtain such supplies would become less as time went on,

The effect on the business of the plaintiff of the relevant conduct as revealed by the evidence was in substance that there was a reduction in sales of meat for each week during the. continuance of the relevant conduct, of approximately oné- third, From average normal sales in the vicinity of a gross amount of about $4,400.00 there was a gross profit of about $1,400.00, Allowing for expenses of sales of $954 made up of wages, plant, wrapping, power, insurance and holiday and

long service leave entitlements the net profit was $446. A reduction of one-third in sales resulted in a reduction of one third of the gross profit. The weekly gross profit was reduced to about $934.00. But for the most part,it appears, overheads (expenses of sales) remained constant and the loss of sales reduced the net profit by considerably more than the loss of gross profit on those sales, Allowing for savings on such items as wrappings and packing on the lost sales the overhead expenses in respect of the reduced sales would be reduced from $954

to $892 leaving a net profit of $42, The result is that the loss of sales caused a loss of a net profit of about $400 per week, The evidence of this loss was not given in precise form -and was the subject of much investigation but I do not' doubt that the loss during the pericd of the relevant conduct was of the order of S4CQ per week. Such a duns was, I consider, a substantial

Accordingly I am satisfied that it is established that the Union is deemed to have acted in concert with the participants in engaging in conduct which prevented the supply by Holman to the plaintiff corporation of goods and services for the purpose of causing substantial loss and damage to the business of the plaintiff and which would have caused and was _likely to have the effect of causing such loss and damage to the plaintiff, that 'the dominant purpose for which such conduct was engaged in was to cause the plaintiff in the operation of its supermarket to cease to sell packaged meat on Saturday mornings and I am satisfied that such purpose was not substantially related to the remmeration conditions of employment hours of work of the participants or of any other person employed by Holman, the employer of -the participants,

I am accordingly satisfied that the participants committed a contravention of the provisions of s.45D(1) in refusing to handle and refraining from loading, delivering or otherwise handling meat ordered by the plaintiff from Holman for sale in its supermarket. J am also satisfied that the defendant Swallc

aided and abetted, counselled and procured the contravention committed by the participants,

I am not satisficd that the conduct of tne participants did or was likely to have the effect of causing a substantial lessenir of competition in any market in which the plaintiff supplies or

In the result it is ordered:-

1. that the defendants and each of them and in the case of the second named defordunt by its members, officers or

(a) doing or continuing or being a party to the doing

the purpose of hindering or preventing the supply by S.P. Holman & Sons Pty, Ltd. to the plaintiff Wribass Pty. Ltd. or the imposition and implementation of any ban upon the lcading, delivery or other -handling of meat or meat products ordered or required by the plaintiff from S.P. Holman & Sons Pty. Ltd. or intended for delivery to the plaintiff and from aiding, abetting, counselling, procuring or inducing any person to act or acting in concert with any other person or persons in the engaging in any such conduct or the continuing or implementing of any such b or attempting so to aid, abet, counsel, procure or indu (b) aiding, abetting, counselling, procuring, being concernc or inducing or attempting to induce any person whateve: to engage in-conduct in concert with other persons so a to hinder or prevent the plaintiff from obtaining meat products for the purpose of its business at 230 Mount

that these proceedings so far as they relate to the & J questions of danage or penalty be adjourned to

that tho Qafennante navtho the niaisntrirrf its costs

ay to be taxed by the District Registrar of and incidental to these proceedings and the costs in |