Case: Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331
Outcome: followed
There is no reason to suppose that the word "purpose" in s 45DB(1) of the Trade Practices Act was intended to have a meaning different from that in which it was used in the (previously enacted) s 45D(1). In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 348-349, Deane J said: The "purpose" referred to in s. 45D (1) is the operative subjective purpose of those engaging in the relevant conduct in concert... It suffices, for present purposes, to say that, in my view, the question to be answered in determining whether conduct was engaged in for a "purpose" mentioned in s. 45D (1) of the Act is...to be answered not by reference to whether it was appreciated that the relevant conduct might have the specified effect but by reference to the real reason or reasons for, or the real purpose or purposes of, the conduct and to what was in truth the object in the minds of the relevant persons when they engaged in the conduct in concert. 33 This passage embodies the accepted meaning of the word "purpose" for s 45D(1) and, consequently, for s 45DB(1) of the Trade Practices Act . It is therefore necessary to find the existence of a subjective purpose, on the part of each of the persons acting in concert, to prevent or substantially hinder a third person from engaging in the relevant trade or commerce. As to Mr Hahnheuser, it is relatively easy to ascertain a subjective purpose for his engagement in the conduct. What he said in his interviews makes it abundantly clear that he was trying to stop the sheep in the two feedlots from being loaded aboard the Al Shuwaikh for export to the Middle East. 34 It seems relatively clear from the terms of s 45DB(1) of the Trade Practices Act , as Deane J in Tillmanns thought it seemed clear from the terms of s 45D(1) , that the subjective purpose concerned is required to have been held by each of the persons found to be acting in concert before the subsection can be applicable. Apart from the possibility that the name of the operator of the video camera in the motel bathroom or in the feedlot was either Diana Simpson or Mark Pearson, nothing is known about the identity, or even the number, of such person or persons. This makes the determination of a subjective purpose somewhat difficult without resorting to the proposition that, because the combined actions of the persons concerned had the effect of preventing or hindering the transporting to the Middle East as live animals of the particular consignment of sheep, this must have been their purpose. To adopt that reasoning is either to look for an objective purpose, or to do something indistinguishable from looking for an objective purpose. 35 There is a small amount of evidence about what others had in mind. Mr Hahnheuser was not the only one wearing the tee-shirt endorsed with the words "Ban Live Exports". One person held up signs, including one bearing these words, during some of the interviews given by Mr Hahnheuser. Mark Pearson appears to have lent his name to the Press Alert. On the basis of these facts, it is "reasonably open to find" that the representations made by Mr Hahnheuser in his media interviews were made by him in furtherance of a common purpose with the persons with whom he acted in concert. As a result, by s 87(1)(c) of the Evidence Act 1995 (Cth), admissions in those representations are admissible in evidence as admissions of the other persons. In those interviews, Mr Hahnheuser expressed himself to be a spokesperson for others, as well as putting his own views. He made it clear that the adulteration of the sheep feed and the subsequent publicising of it were carried out with the purpose of preventing the export of the consignment of sheep. The evidence therefore supports a finding that Mr Hahnheuser's subjective purpose was also the subjective purpose of the other person or persons with whom Mr Hahnheuser acted in concert. 36 Assuming that at least one person other than Mr Hahnheuser, being a person with whom Mr Hahnheuser acted in concert, shared Mr Hahnheuser's purpose, the next question is as to the effect or likely effect of the conduct. The applicants' submissions pointed to the grounds expressed in the Secretary's direction of 19 November 2003. Certainly, the effect of the conduct concerned was that there was a delay of approximately two weeks in loading the bulk of the consignment of sheep on board the Al Shuwaikh , and 1,694 sheep, which had been kept in paddock X4 of the feedlot were not exported at all. This was the direct result of the Secretary's direction of 19 November 2003, and the variation to that direction on 4 December 2003. In turn, both of the Secretary's directions were brought about by the conduct complained of. In no sense could it be said that the Secretary's actions, first in preventing the grant of an export permit for the whole consignment of sheep, and then in excluding from the lifting of this ban what was thought to be 1,800 sheep, were intervening events in the chain of causation. That chain led directly from the conduct complained of to the delayed, and partially frustrated, export of the consignment of sheep.