Case: Australian Broadcasting Commission v Parish (1980) 29 ALR 228; (1980) 43 FLR 129
Outcome: cited
The factual findings that I have made require further findings that: (1) Lane and Primmer, on 20 and 21 October 2003, engaged in conduct that hindered and prevented LGB from acquiring services from Silvestri P/L. Threats and verbal intimidation, as well as physical interference, can constitute hindering or preventing the supply or acquisition of services ( Australian Broadcasting Commission v Parish (1980) 29 ALR 228; (1980) 43 FLR 129; J-Corp Pty Limited 42 FCR 452 per Lockhart and Gummow JJ at 459 460). Services for these purposes include benefits to be provided under a contract for the performance of work ( Trade Practices Act , s 4). It was submitted on behalf of the respondents that, in any event, the conduct could not extend beyond the blocking of the driveway by Lane. That is too limited a view of the situation. The aim of Lane and Primmer was to prevent Silvestri P/L from carrying out any work on site by LGB. They succeeded. Work was stopped and the contract was terminated. The blocking of the driveway was a small step toward that objective. It was not of great significance in itself. It was significant in the wider context by demonstrating the extent to which Union officials would go to target Antonio Silvestri and Silvestri P/L. (2) The conduct was 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 Silvestri P/L. It is enough if one of the purposes of engaging in the conduct was the proscribed purpose (s 45D(2)). A purpose of the conduct was plainly to inflict such injury to Silvestri P/L that it would enter into an EBA with the Union and Antonio Silvestri would become a Union member. The evidence as to what Lane, Primmer and Kelly said to LGB employees, consistently with the evidence of Antonio Silvestri, was that this was not an isolated instance of pursuit of Antonio Silvestri by the Union. That circumstance gives colour to the particular facts relied upon in this case. This is not a case, such as J-Corp Pty Limited 42 FCR 452, where damage was collateral in the sense that, although predictable, the infliction of harm or damage was not a purpose in itself. Here, the two were inextricably linked. It is significant in this, and a number of other respects, that no endeavour was made by the Union to establish the genuineness of the complaints made by its officials about the safety record and commercial morality of Antonio Silvestri and Silvestri P/L. Loss or damage to Silvestri P/L was inevitable. "Substantial" in the context of s 45D means real or of substance rather than large ( Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367; (1979) 42 FLR 331 at 348; Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104 at 140). Being prevented from carrying out a contract for reward is substantial in this sense. The arrangement between Antonio Silvestri and LGB was that Silvestri P/L would provide those services necessary to carry out the whole of the excavation work required on the site. Preventing that outcome would cause substantial loss or damage.