Australian Liquor, Hospitality & Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd

FEDERAL COURT OF AUSTRALIA

Australian Liquor, Hospitality & Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd [2002] FCA 528 INDUSTRIAL LAW - Freedom of Association under Part XA Workplace Relations Act 1996 (Cth) - application for interlocutory relief - whether respondents contravened s 298K(1)

TORTS - unlawful means conspiracy - whether serious question to be tried - where no evidence of agreement with intention to injure applicant - where applicant has not and does not plead it has suffered actual pecuniary loss.

CONTRACTS - interference with contractual relations - whether direct interference by procuring breach of contract - whether serious question to be tried - whether first respondent had sufficient knowledge of contract - whether applicant suffered special damage - where applicant does not plead special damage.

Workplace Relations Act 1996 (Cth) BHP Iron Ore Pty Ltd v Australian Workers Union (2000) 102 FCR 97 Cited Australian Workers' Union v BHP Iron-Ore Pty Ltd (2000) 106 FCR 482 Appl Burnie Port Corporation Pty Ltd v Maritime Union of Australia (2000) 104 FCR 440 Appl Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 Appl Lonrho Plc v Fayed [1992] 1 AC 448 Appl Elliott v Seymour [1999] FCA 976 Cited McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 Cited Lonrho Pty Ltd v Fayed (No 5) [1993] 1 WLR 1489 (C.A.) Appl Marrinan v Vibart [1963] 1 QB 234 Cited Midland Bank v Green (No 3) [1979] 1 Ch 496; affirmed [1982] 1 Ch 529 Cited J T Stratford & Son Ltd v Lindley [1965] AC 269 Appl Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691 Appl Greig v Insole [1978] 1 WLR 302 Appl Delphic Wholesalers Pty Ltd v Elco Food Co Pty Ltd (1987) 8 IPR 545 Appl Gibson Chemicals Ltd v SA Sopura NV [1999] VSC 203 Appl Sanders v Snell (1998) 196 CLR 329 Cited Woolley v Dunford (1972) 3 SASR 243 Cited Rookes v Barnard [1964] AC 1129 Cited Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth of Australia (1977) 139 CLR 54 Cited Australian Airline Flight Engineers Association v Ansett Australia Ltd (2000) 102 IR 162 Cited The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Cited Chaplin v Hicks [1911] 2 KB 786 Cited McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 Cited Castlemaine Tooheys Ltd v The State of South Australia (1986) 161 CLR 148 Cited Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 Cited News Limited v Australian Rugby Football League Ltd (1996) 64 FCR 410 (FC) Cited AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION v LIQUORLAND (AUST) PTY LTD AND SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION Q51 OF 2002 COOPER J BRISBANE 29 APRIL 2002 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q51 OF 2002 BETWEEN:

AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION APPLICANT AND:

LIQUORLAND (AUST) PTY LTD

FIRST RESPONDENT SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION SECOND RESPONDENT JUDGE:

COOPER J

DATE OF ORDER:

29 APRIL 2002 WHERE MADE:

BRISBANE THE COURT ORDERS THAT:

1. The application is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q51 OF 2002 BETWEEN:

AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION APPLICANT AND:

LIQUORLAND (AUST) PTY LTD

FIRST RESPONDENT SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION SECOND RESPONDENT JUDGE:

COOPER J

DATE:

29 APRIL 2002 PLACE:

BRISBANE REASONS FOR JUDGMENT The applicant is an organisation of employees registered under the Workplace Relations Act 1996 (Cth) ("the Act").

The first respondent carries on in Australia a business of the retail sale of packaged liquor products, and in that business is an employer of employees.

The second respondent is an organisation of employees registered under the Act.

The first respondent carries on business in Queensland through a wholly owned subsidiary, Liquorland (Qld) Pty Ltd ("LQ"). LQ owns seventeen hotels in Queensland.

It is not possible in Queensland to lawfully sell retail packaged liquor products without being the holder of a hotel liquor licence. A holder of a hotel liquor licence may sell packaged liquor products at premises other than the hotel to which the liquor licence attaches in the circumstances provided for in the State licensing laws. The sales made from these premises are made under the hotel licence. In this way LQ operates fifty-two retail liquor stores in South East Queensland.

The employees of LQ are employed under the provisions of the Hospitality Industry, Hotels, Accommodation, Resorts and Gaming Award 1998 [AW783479] ("the Hotels Award").

The other employees of the first respondent are employed under an enterprise agreement certified under the Act. That enterprise agreement, the Liquorland (Australia) Pty Ltd Agreement 1998 [Print L0709] ("the 1998 Agreement"), has a nominal expiry date of 4 February 2002. The second respondent is a party to the 1998 Agreement.

The first respondent has agreed a new enterprise agreement, the Liquorland (Australia) Pty Ltd Agreement 2002 ("the 2002 Agreement"). The 2002 Agreement is binding on LQ "in respect of employees engaged in retail stores which sell packaged liquor including but not limited to retail stores trading as Liquorland Vintage Cellars and Quaffers, whether they are members of the SDA [the second respondent] or not". The 2002 Agreement is to apply to all States and Territories of Australia.

The 2002 Agreement was put to the employees of the first respondent and LQ for approval in accordance with the provisions of the Act on or about 25 and 26 March 2002.

On 15 April 2002, the applicant filed an application in this Court pursuant to ss 298T and 298U of the Act, and in the accrued jurisdiction of this Court, seeking the imposition of a penalty in respect of conduct by the first respondent in contravention of s 298K of the Act, and declarations, orders and injunctions "regarding the conduct of the respondents, in respect of a conspiracy to interfere, and interference, by unlawful means in contractual relations between the applicant and the second respondent". In the preamble of the application the applicant also seeks damages and injunctions against the respondents "in respect of the tortious conduct and breach of contract", but does not in the orders sought by way of final relief include a claim for damages.

The contract to which the applicant refers is a written agreement under seal dated 10 December 1992, and is referred to by the applicant in its Court documents as "the LHMU-SDA agreement". The Act, in the applicant's documentation, is referred to as "WRA" and "the proposed agreement" is the Liquorland (Australia) Pty Ltd 2002 Agreement.

The applicant, by its application, sought the following final relief :

"1. An order that the respondent has contravened section 298K of the WRA. 2. An order that the respondents (each by itself or by their officers employees and agents) be restrained from acting upon or giving effect to the proposed agreement by submitting the proposed agreement to the Australian Industrial Relations Commission for approval under the WRA. 3. In the event that the proposed agreement has already been submitted, an order that the respondents (each by itself or by their officers employees and agents) withdraw the application for approval and take no further action to secure approval of the proposed agreement. 4. An order that the second respondent (by itself or by its officers employees and agents) continue to treat the LHMU-SDA agreement as remaining on foot and binding upon the second respondent. 5. An order that the respondents (each by itself or by its officers employees and agents) be restrained from entering any arrangement or taking any step or doing any thing inconsistent with the obligations of the second respondent arising out of or under the LHMU-SDA agreement in relation to the employment and industrial interests of its employees employed in the first respondent's liquor interests in Queensland. 6. An order that the respondents (each by itself or by its officers employees and agents) be restrained from entering any arrangement or taking any step or doing any thing having the effect of displacing the rights of the applicant to represent the industrial interests of the employees to the exclusion of the second respondent in respect of the first respondents liquor interests in Queensland. 7. An order imposing a penalty upon the respondent for the contravention. 8. An order pursuant to Section 256 directing the first respondent to pay any penalty to the applicant."

The applicant sought the following interlocutory orders :

"a. That the respondents (each by itself its officers employees and agents) are restrained from acting upon or giving effect to the proposed agreement by submitting the proposed agreement to the Australian Industrial Relations Commission for approval under the WRA. b. In the event that the proposed agreement has already been submitted for approval, an order that the respondents (each by itself or by their officers employees and agents) withdraw the application for approval and take no further action to secure approval of the proposed agreement. c. That the respondents (each by itself or by their officers employees and agents) continue to treat the LHMU-SDA agreement as remaining on foot and biding upon the second respondent. d. That the first respondent (by itself or by its officers employees and agents) is restrained from entering any arrangement or taking any step or doing anything inconsistent with the obligations of the second respondent arising out of or under the LHMU-SDA agreement in relation to the employment and industrial interests of its employees employed in the first respondent's liquor interests in Queensland. e. That the respondents (each by itself or by its servants and agents) are restrained from entering any arrangement or taking any step or doing anything having the effect of displacing the rights of the applicant to represent the industrial interests of the employees to the exclusion of the second respondent in respect of the first respondents liquor interests in Queensland."

Material has been filed by the first respondent, and it has not been challenged by the applicant, that the count of the vote of the relevant employees to approve the 2002 Agreement occurred on 19 April 2002, and that it was approved by a requisite majority of all employees, including the Queensland employees, as required by s 170LT of the Act. If the vote of the Queensland employees is separately considered, there were 105 votes in favour of approval, 135 votes against and eight invalid votes. The Act requires that the 2002 Agreement be lodged with the Australian Industrial Relations Commission ("the Commission") within twenty-one days of the count if it is to be eligible for certification by the Commission as provided for in the Act.

Pursuant to a direction of the Court given on 18 April 2002, the applicant filed a statement of claim on 19 April 2002 to set out the causes of action in respect of which it sought the interlocutory relief claimed.

The statement of claim pleads that :

"12 ...

(a) ...

(b) Under the proposed certified agreement the employees will be (or arguably be) prejudiced in their employment and/or have their employment altered to their prejudice as compared with the Hotels Award. [See affidavit of Irene Monro dated April 15, 2002 paras 25 - 37 annexures 'IM6', 'IM7'].

(c) Under the proposed certified agreement the employees will be (or arguably be) prejudiced in their employment and/or have their employment altered to their prejudice as compared with the Hotels Award by reason of the fact that the proposed certified agreement alters the union recognition arrangements. [See affidavit of Irene Monro dated April 15, 2002 para 22 annexure 'IM3', proposed certified agreement clause 50, 51]."

The allegation then, so far as the Act is concerned, is that the first respondent, in making the 2002 Agreement with the second respondent engaged in conduct in breach of s 298K(1)

In so far as the other causes of action are concerned, the statement of claim pleads that :

"6. There is an agreement between the Applicant and the Second Respondent with respect to the demarcation of their respective industrial interests in, inter alia, the liquor and hospitality industry ('the LHMU-SDA agreement'):

The applicant does not seek damages in respect of any of the common law causes of action which it pleads, and does not plead that it has suffered any special damage from the conduct complained of. It is implicit however, that it complains that it has been denied and will be denied the benefit of the free exercise of its rights under the LHMU-SDA agreement and the material indicates that it may be affected in respect of its membership if it loses industrial coverage of the employees of LQ who would be subject to the 2002 Agreement.

The question presently before the Court is whether there is a serious question to be tried in respect of the causes of action pleaded, and if so, whether the balance of convenience favours the grant of all or any of the interlocutory relief claimed.

Part XA of the Act is headed "FREEDOM OF ASSOCIATION". The objects of the Part, in addition to the objects in s 3 of the Act, are :

"

Section 298K(1)(b) and (c) of the Act provides :

"298K Dismissal etc of members of industrial associations etc

Section 298L(1) of the Act, so far as is relevant, provides :

"298L Prohibited reasons

The ambit of s 298K(1), in respect of the conduct of employers, was considered by a Full Court of this Court (Black CJ, Beaumont and Ryan JJ) in BHP Iron Ore Pty Ltd v Australian Workers Union (2000) 102 FCR 97. The Court, in a joint judgment, said :

"[35] It has to be borne in mind, in construing s 298K, that it proscribes conduct by 'an employer' directed to 'an employee' or 'other person' (emphasis added). That use of the singular suggests that the alleged injury or alteration of position has to be examined in the light of the circumstances of each individual employee. (It is not the point that in the interpretation of statutes, the singular ordinarily includes the plural; here we are concerned with the indications of legislative intention to be discerned from the actual language used.) It is also significant that the conduct struck at by each paragraph of s 298K is expressed by an active verb: 'dismiss', 'injure', 'alter the position', 'refuse to employ', and 'discriminate'. That implies that the proscription is essentially against an intentional act of the employer directed to an individual employee or prospective employee. [36] That implication is reinforced by the terms of s 298L

(1)which contains an exhaustive catalogue of prohibited reasons, prefaced by the statement : 'Conduct referred to in subsection 298K

(1)or

(2)is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned ...' [37] Then follow 14 descriptions of actual or proposed conduct by the person who is the target of the conduct described in s 298K, each of which constitutes a 'prohibited reason' for the latter conduct."

Until it can be said that an employee, individually speaking, is in a worse situation after the employer's acts than before them, that the deterioration has been caused by those acts and that the acts were intentional in the sense that the employer intended them to occur, s 298K(1) cannot apply to the conduct of the employer: Australian Workers' Union v BHP Iron-Ore Pty Ltd (2000) 106 FCR 482 per Kenny J. The employee's position is to be taken at the time the conduct occurs and for the purposes of s 298L1(h) it is to be assessed by reference to the employee's then existing entitlements under the relevant industrial instrument: Burnie Port Corporation Pty Ltd v Maritime Union of Australia (2000) 104 FCR 440 at [23] per Wilcox, Kiefel and Merkel JJ.

The making of the 2002 Agreement by the first respondent did not alter the situation of an employee individually to his or her prejudice or injure the employee in his or her employment. The employees of LQ continued to be employed under, and have the entitlements and benefits of, the Hotels Award. The employees of the first respondent continued to have the benefits of the 1998 Agreement. The 2002 Agreement has no effect with respect to the position of the employees to be covered by it until it is registered under s 170LT of the Act. Before that can occur, the 2002 Agreement must be approved by a valid majority of the persons employed at the time whose employment will be subject to the agreement: s 170LJ(2). That occurred on 19 April 2002.

The Commission is not to certify the 2002 Agreement unless it is satisfied that the requirements of s 170LT are met: s 170LT(1). Those requirements include that the agreement pass the no-disadvantage test in Part VIE of the Act (s 170LT(2)) and that the agreement does not contain provisions which require, permit or have the effect of permitting any conduct that would contravene Part XA of the Act.

Upon certification, a certified agreement comes into effect: s 170LX(1). From that point in time it prevails over an award or order of the Commission to the extent of any inconsistency with the award or order: s 170LY(1)(a).

In the present case, the Hotels Award will not be effected until, if at all, the 2002 Agreement is certified.

The injury and prejudice which the applicant's material goes to involves a comparison of the relative position of an employee under the Hotels Award and the 2002 Agreement and expresses the opinion that employees are better off under the Hotels Award than they will be under the 2002 Agreement. If that is the case, and notwithstanding the requirements of the no-disadvantage test, the 2002 Agreement is certified, the change in the circumstances of each employee individually will occur by the operation of the Act, and not the conduct of the employer in making the 2002 Agreement.

For this reason alone the conduct complained of does not fall within s 298K(1)(b) or (c). However, there is another reason why the conduct complained of is not conduct with which Part XA of the Act is concerned. That is, the Act offers choices in respect of different modes of industrial regulation under the Act. Those choices are, regulation by Awards of the Commission made under Division 6 of Part VI; Certified Enterprise Bargaining Agreements under Part VIB ("EBAs"); Australian Workplace Agreements under Part VID ("AWAs").

So far as EBAs are concerned, the object sought to be achieved by the statutory provisions allowing such agreements to be made is contained in s 170L. The section says :

"170L The object of this Part is to facilitate the making, and certifying by the Commission, of certain agreements, particularly at the level of a single business or part of a single business."

It is clear from the provisions of s 170LT(2) and the no-disadvantage test in Part VIE of the Act, that it was contemplated by the legislature that EBAs were to be available to employers, subject to compliance with the Act, notwithstanding the existence of presently operable award provisions. For example, s 170XA of the Act provides :

"170XA

Section 170LY of the Act also contemplates that EBAs will come into effect upon certification, and therefore will have an effect with respect to any inconsistent award or orders of the Commission which previously applied to the industrial regulation of the employer and employees, now bound by the terms of the newly certified agreement.

The right of an employer to choose which mode of industrial regulation it will seek to introduce as appropriate to its particular circumstances, without thereby engaging in conduct in contravention of Part XA of the Act, was recognised in Burnie Port Corporation Pty Ltd v Maritime Union of Australia. The case concerned the desire of the employer to offer AWAs to new employees. The issue was whether a refusal to employ an employee on other than an AWA constituted conduct in contravention of s 298K(1) of the Act. Their Honours said :

"[27] Each mode of industrial regulation under the Act, whether it be an AWA, an EBA or an award, is operative and binding upon the parties only when the prescribed statutory criteria have been satisfied. Although the statutory criteria vary with each mode of regulation, the protective mechanisms provided under the Act in respect of each of them were intended to ensure that employees are not treated harshly or unreasonably. The legislature has not expressed any preference in the Act in favour of one form of industrial regulation over another. Rather, as is stated in s 3(c), one of the principal objects of the Act is to enable employers and employees to choose the most appropriate form of agreement for their particular circumstances. [28] In the circumstances we are unable to discern any legislative policy or intent that an employer be prevented from offering to a prospective employee one form of industrial regulation under the Act rather than another. Put another way, we do not discern a legislative policy or intent in respect of the anti-discrimination provisions in ss 298K(1)

The position is no different where the employer wishes to alter the existing form of industrial regulation, where the Act provides for such an alternative and a means to change, provided that certain criteria contained in the Act to facilitate change are complied with. Those criteria include safeguard provisions, as for example, that the proposed agreement is agreed to or approved by vote of a valid majority of the persons employed at the time, whose employment will be subject to the agreement (s 170LE, s 170LJ(2), s 170LK(1)), the no-disadvantage test (s 170LT(2)) and that the agreement does not breach any of the proscribed conditions which require refusal of certification (s 170LO)).

To seek to obtain the consent of employees to a change in existing industrial arrangements by acting in accordance with the relevant provisions of the Act, which allow for a change in the circumstances spelt out in the Act, is not conduct by an employer in contravention of s 298K(1)

There is no serious question to be tried that the first respondent, in entering into the 2002 Agreement, contravened s 298K(1)(b) or (c) for a prohibited reason. It follows that there is no serious question to be tried that the applicant is entitled to any relief under the Act.

I turn now to the common law claims.

The civil tort of conspiracy is limited to acts done in execution of an agreement entered into by two or more persons for the purpose not of protecting their own interests, but of injuring the interests of another: per Lord Diplock in Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 at 188, and cited with approval by Lord Bridge of Harwich in an opinion agreed in by the other members of the House of Lords in Lonrho Plc v Fayed [1992] 1 AC 448 at 468. There are two types of conspiracy, the elements of which are distinct. The distinction lies in whether or not lawful or unlawful means were employed to achieve an unlawful end: Lonrho v Fayed at 463; Elliott v Seymour [1999] FCA 976 at [89] per Ryan J; McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at [130] per Weinberg J.

In the present case, the applicant pleads in its statement of claim (paragraph 19(b)) that this is a case where the first respondent sought by unlawful means (the procuring of the breach of the LHMU-SDA agreement) to achieve an unlawful end.

The elements of a "wrongful means" conspiracy are :

On the material before the Court, on the case as pleaded and as argued on the application, the applicant fails to make out in two key respects that there is a serious question to be tried of conspiracy as alleged in paragraph 19 of the statement of claim.

There is no evidence that there was an agreement with the intention of injuring the applicant. The applicant must point to material which shows that there was a conspiracy "aimed at" the applicant. This requirement of intention to injury was stated by Lord Denning MR in Lonrho v Shell Petroleum Co when it was under consideration in the Court of Appeal in the following terms :

"... I would suggest that a conspiracy to do an unlawful act - when there is no intent to injure the plaintiff and it is not aimed or directed at him - is not actionable, even though he is damaged thereby. But if there is an intent to injury him then it is actionable. The intent to injury may not be the predominant motive. It may be mixed with other motives. In this context, when the agreement is to do an unlawful act, we do not get into the 'quagmire of mixed motives', as Lord Simon LC described them in the Crofters case at p 445. It is sufficient if the conspiracy is aimed or directed at the plaintiff, and it can reasonably be foreseen that it may injury him, and does in fact injury him. That is what Parker J thought. I agree with him."

This formulation was cited with approval by the House of Lords in Lonrho v Fayed at 467, 468.

The applicant by paragraph 19(c), pleads the agreement was actuated by the reason or a reason including the reason, that the first respondent would be rid of the Hotels Award. If by that is meant that the first respondent intended, in making the agreement pleaded in paragraph 19(a), to be rid of the Hotels Award, then that is an insufficient intention to make out the civil tort of conspiracy against the first respondent; there must be an intention to injure the applicant.

The applicant submitted in its written outline of submissions in reply that :

"[1.1] ... Plainly the First Respondent wished to be rid of the award in Queensland and called in aid the Second respondent to lend legitimacy and resources to that effort. The Second Respondent receives its reward upon certification. ... ... [2.4] ... The very existence of the Hotels award - and it may be inferred the benefits and entitlements which it delivered to the employees concerned is the whole reason for the endeavour to extinguish it by the proposed certified agreement. [2.5] In this light the Court is entitled to treat Mr Keily's protestations as disingenuous. He says that his sole reason was 'the desirability of obtaining a single agreement for all liquor land outlets throughout Australia'. [Keily affidavit para 31]. That is a reason entirely consistent with the reason that the First Respondent would be thereby rid of the Hotels award with its superior rates and conditions. It is absurd to suggest that uniformity for its own sake was the desired outcome. If that were so it would have been equally efficacious to apply the Hotels award to the rest of Australia! Plainly the agreement was to be extended to Queensland for the good reason (to the First respondent) that it would extinguish the award and thus deliver substantial future savings."

These submissions were made in support of the contention that the conduct of the first respondent in entering into the 2002 Agreement with the second respondent was for a prohibited purpose, namely, to take away present entitlements under the Hotels Award. Whether the 2002 Agreement has such an effect or not, the purpose of the first respondent was to alter the industrial arrangements under which it operated in Queensland by bringing LQ employees under a certified agreement and out of the Hotels Award. That is what Mr Keily deposed to in his affidavit as being his, and therefore the first respondent's, intention throughout. However expressed, the intention of the first respondent was to be rid of the Hotels Award in so far as it related to the Queensland operations of its business.

The applicant does not suggest that the intention of the first respondent in entering into the arrangements which it did with the second respondent ever changed.

In respect of the alleged agreement to interfere in the contractual arrangements of the applicant and the second respondent as reflected in the LHMU-SDA agreement, the applicant's written submissions in reply stated :

"[4.5] The first respondent would have the Court believe that two of its senior human resources managers were so incompetent that they remained oblivious to the looming row with the Applicant should they proceed with the proposed certified agreement. Furthermore the Court is asked to believe that neither of them made any inquiries about precisely what constraints were upon them if they were to endeavor [sic] to achieve the objective of extinguishing the Hotels award. Apart from everything else, they knew from the text of the respective industrial instruments that different union parties were respondents to the respective instruments. ... [4.7] The proposed certified agreement made by the respondents is itself evidence of the necessary agreement which establishes the tort. For that agreement to be efficacious the breach of the LHMU-SDA agreement was essential."

This submission reflects the matters pleaded in paragraphs 19(a), (c) and (d) of the statement of claim. The applicant does not plead or submit, and the evidence does not make out, any intention on the part of the first or second respondent to injure the applicant. The 2002 Agreement stands as cogent evidence that the sole intention of the first respondent was to be rid of the Hotels Award, in so far as it impacted upon the first respondent's operation in Queensland. There is no serious question to be tried on the material as it presently stands that there was an agreement between the respondents aimed at the applicant, in the sense explained by Lord Denning MR, which it could reasonably be foreseen may injure the applicant.

The other aspect in which there is no evidence on the material as it stands, to raise a serious question to be tried, is in respect of the fact of injury to the applicant. A claimant in a civil action for conspiracy must prove actual pecuniary loss. If it does so, damages are at large, although not extending to damage to reputation and injury to feelings: Lonrho Pty Ltd v Fayed (No 5) [1993] 1 WLR 1489 (C.A.) at 1494 per Dillon LJ; 1502-5 per Stuart-Smith LJ; at 1509 per Evans LJ.

Actual pecuniary damage is the gist of the civil tort of conspiracy and the cause of action is not complete until such damage is suffered: Lonrho v Shell Petroleum Co (No 2) at 188 per Lord Diplock; Marrinan v Vibart [1963] 1 QB 234 at 238 - 239 per Salmon J; Midland Bank v Green (No 3) [1979] 1 Ch 496 at 524 per Oliver J; affirmed [1982] 1 Ch 529 at 538, 542.

The applicant does not plead that it has or will suffer pecuniary loss as a result of the conduct complained of. Rather, it pleads in paragraph 19(e) of the statement of claim and its material is directed to proving that the employees were effected because their entitlements under the Hotels Award were prejudiced to their detriment. It was suggested in argument by counsel for the applicant that it lost its industrial influence in an area in which it previously exercised industrial influence under the operation of the award. Such a loss, without more, does not in my view equate to actual pecuniary damage. It was not suggested, and there is no evidence, that actual pecuniary loss has occurred to the applicant.

Notwithstanding the way the applicant has put its case on damage, it is possible that a case could be made out as to loss of a chance to enrol new members or the loss of income if members leave because of the loss of coverage. Accordingly, I would not for this reason alone find that no serious question had been made out.

In my view, on the present pleading and the state of the evidence, no serious question to be tried in respect of the conspiracy claim has been made out, at least on the question of necessary intent.

The final claim made by the applicant is in respect of interference with contractual relations. The claim is in respect of direct interference by procuring breach of contract (paragraph 15) and indirect interference by unlawful means (paragraph 16).

The elements necessary to make out a cause of action for inducing breach of contract (direct interference) are :

The first respondent submits that it had no knowledge of the existence of the LHMU-SDA agreement or of its terms, and that there is no evidence of, or claim that, damage has been suffered by the applicant. The first respondent also submits that in entering into the 2002 Agreement, the second respondent did not breach any term of the LHMU-SDA agreement.

The second respondent submits that as a matter of construction, there is no express provision in the LHMU-SDA agreement which precludes the second respondent from exercising industrial rights under its constitution rule with respect to employers retailing liquor and other goods in shops. Therefore, it submits that there is no serious question to be tried that it has breached the agreement. Further, it submits that the agreement, as a matter of construction, is only concerned with the respective rights of the organisations with respect to award and membership cover and does not touch the question of the right to make enterprise bargaining agreements.

The degree of knowledge of a contract necessary to sustain the cause of action was dealt with by Lord Pearce in J T Stratford & Son Ltd v Lindley [1965] AC 269 at 332 :

"... It is no answer to a claim based on wrongfully inducing a breach of contract, to assert that the defendants did not know with exactitude all the terms of the contract. The relevant question is whether they had sufficient knowledge of the terms to know that they were inducing a breach of contract. ..."

If the wrongdoer did not know of the actual terms of the contract, but had the means of knowledge which it deliberately disregarded, that is sufficient for the cause of action. It is unlawful for a third person to procure a breach of contract knowingly, or, recklessly indifferent whether it is a breach or not: Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691 at 700 - 701 per Lord Denning MR, at 703 - 704 per Diplock LJ; Greig v Insole [1978] 1 WLR 302 at 335; Delphic Wholesalers Pty Ltd v Elco Food Co Pty Ltd (1987) 8 IPR 545 at 552; Gibson Chemicals Ltd v SA Sopura NV [1999] VSC 203 at [71].

As to the question of the intention necessary to be shown in the act of the wrongdoer, Diplock LJ said in Emerald Construction Co Ltd v Lowthian (at 703 - 704) :

"... The only issue on this part of the case is one of fact as to the defendant's intent. At all relevant times they knew of the existence of a 'labour only' sub-contract for brickwork between the main contractors and the plaintiffs, but until it was disclosed to them on the interlocutory application to the judge in chambers for an injunction, they did not know its precise terms. They say in somewhat equivocal language that they assumed that it could be lawfully terminated by the main contractors on short notice and that such lawful termination was all that they insisted on. But ignorance of the precise terms of the contract is not enough to show absence of intent to procure its breach. The element of intent needed to constitute the tort of unlawful procurement of a breach of contract is, in my view, sufficiently established if it be proved that the defendants intended the party procured to bring the contract to an end by breach of it if there were no way of bringing it to an end lawfully. A defendant who acts with such intent runs the risk that if the contract is broken as a result of the party acting in the manner in which he is procured to act by the defendant, the defendant will be liable in damages to the other party to the contract."

If the wrongdoer is indifferent as to whether the party to the contract terminates the contract lawfully or breaches it, that is a sufficient intention: Delphic Wholesalers v Elco Food Co at 553 - 554; Greig v Insole at 337 - 338; Gibson Chemicals Ltd v SA Sopura at [71]. However, a mere subjective desire that the contract be breached on the part of the alleged wrongdoer which is uncommunicated is insufficient: Sanders v Snell (1998) 196 CLR 329 at 339.

In a case of direct interference with contractual relations, the persuasion, procurement, inducement or other form of interference is regarded by the law as wrongful in itself and provides the element of unlawful means necessary to make out the cause of action: Woolley v Dunford (1972) 3 SASR 243 at 267 per Wells J.

Finally, in order to complete the cause of action there must be special damage, ie more than nominal damage caused to the claimant by the breach of contract: Rookes v Barnard [1964] AC 1129 at 1212; Greig v Insole at 332; Delphic Wholesalers v Elco Food Co at 550.

The LHMU-SDA agreement is headed :

"AGREEMENT BETWEEN THE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION AND THE SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION IN RELATION TO UNION RATIONALISATION". Preamble v states : "v. This agreement seeks to establish a workable relationship between the LHMU and the SDA in relation to their respective areas of coverage in a range of industries and/or sectors."

The preamble also includes the following statement :

"This agreement has been negotiated, having regard for the ACTU Congress 1991 resolution with respect to union rationalisation, Executive decisions and the definitions of 'principal', 'significant', and 'other' unions. This agreement recognises that each party has a major interest in a range of industries or sectors and seeks to deal only with those interests which may overlap or cause future demarcation problems."

Part B of the agreement, so far as relevant, provides :

"B. Having regard to the major areas of interest of each union and the potential for either overlapping membership interests or future demarcation problems, the parties have agreed to rationalise and exchange membership in the following sectors : ... 3. In practical terms the following diagram illustrates the effect of union rationalisation between the two unions with respect to the food services area: LHMU SDA ... ... Bottle shops associated with hotels... ... Free standing bottle shops"

Part C of the agreement, so far as relevant, provides :

"C. Implementation of agreement (membership exchange) It is agreed by the parties that the process of membership exchange shall take place 3 months after the signing of this agreement. During this period, extensive membership and employer consultation shall take place to ensure the smooth implementation of this agreement. It is agreed by the parties that the following process shall be adopted in terms of membership transfers: i. Members will be advised of the new union coverage and encouraged to join the appropriate union and meetings for this purpose will be addressed by officials of both unions. This shall be a voluntary decision by the employee. However, every effort shall be made by the unions to facilitate the exchange. The parties agree that the primary objective of membership exchange should not have a reverse effect in terms of employees deciding not to be in any union. This will require much effort on behalf of both unions to ensure that the end result is a positive exchange. ii. No pressure will be applied by either union and both unions will not tolerate any action from employers connected with union membership which is inconsistent with this agreement. iii. Both unions will work co-operatively to ensure 100% union membership including employees of all contractors. iv. Should some employees not transfer membership immediately, the unions shall enter into a 'servicing agreement'. v. All new employees would join the appropriate union. vi. The membership transfer shall immediately be reflected in the appropriate awards and constitution of each union where appropriate so that the parties can service the new areas properly."

The agreement was executed under seal.

In my view, on its proper construction, the documents record an agreement to allocate as between themselves different areas of coverage where otherwise there was a risk of demarcation disputes arising from overlapping coverage. Relevantly, the second respondent was to limit its coverage to "free standing bottle shops" and leave to the applicant, coverage of employees in "Bottle shops associated with hotels". In my opinion, there is a serious question to be tried that the agreement covered looking after all the industrial interests of employees falling within the agreed areas of coverage and included the making of enterprise bargaining agreements under the Act. Clause C (vi), on one view, required that award and constitutional changes be implemented to give effect to the changes to both immediate and future membership coverage and the consequent transfer of actual and potential membership between the two organisations.

The agreement, while it remained on foot, bound the second respondent not to do anything to diminish or deprive the applicant of the benefit of the agreement: Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth of Australia (1977) 139 CLR 54 at 61; Australian Airline Flight Engineers Association v Ansett Australia Ltd (2000) 102 IR 162 at [18].

There is a serious question to be tried that by entering into the 2002 Agreement with the first respondent, the second respondent has breached or threatens to breach the LHMU-SDA agreement.

The evidence of Ronald William Monaghan, the Secretary of the Queensland Branch of the applicant, and Shirley Mellor, the Queensland Branch President, raises a serious question to be tried that the first respondent since 20 July 1998, through the knowledge of Ray Kaufman, a human resources manager with the first respondent, and Julie Crombie, the human resources manager of LQ, was on notice as to the existence and effect of the LHMU-SDA agreement. Further, the admission of Mark Keily, the human resources manager of the first respondent, that he "was aware that the applicant had traditionally covered employees in Queensland hotels and associated retail liquor outlets", raises the question of whether he, as a person knowledgeable in the industry and the person dealing with the second respondent to change the industrial situation at LQ, wilfully refrained from making inquiry of the second respondent as to the existence of an agreement as to coverage because he knew, or reasonably expected that he would be told, that such an agreement as the LHMU-SDA agreement existed.

Mr Keily in his affidavit, acknowledges that it was his decision to negotiate with the second respondent for a certified agreement to replace the 1998 Agreement, and to include within its coverage the employees at LQ. The proposal to include the Queensland employees gave to the second respondent a benefit which it did not then have, namely, the potential coverage of those employees if the agreement was certified. There is, in those circumstances, a serious question to be tried as to whether the first respondent, by the offer of the benefit intended to induce or procure the second respondent to terminate by whatever means it could, the demarcation arrangement agreed by the applicant and the second respondent in the LHMU-SDA agreement.

The only difficulty facing the applicant relates to the question of special damage. The applicant does not plead, and does not in the affidavit material raise any case as to, such damage. However, I am prepared to infer that there is a real likelihood it may lose membership and membership dues, or, be denied the opportunity in the future to canvas for and obtain new or additional members with the consequent contribution to income from members' dues from the LQ employees subject to the 2002 Agreement, if certified, which it would otherwise have had if the LHMU-SDA agreement remained in place and was given effect to by the second respondent. The loss of an opportunity or chance is a real loss which can be valued and sounds in an award of damages which are not nominal: The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 88, 93 - 94, 102, 118 - 121; Chaplin v Hicks [1911] 2 KB 786 at 796, 799; McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 at 412.

The applicant makes out a serious case to be tried that the first respondent directly interfered in the contractual relations between the applicant and the second respondent by procuring the second respondent to breach by repudiating the LHMU-SDA agreement and seeking thereby to deny the applicant the benefit it was entitled to under the agreement and seeking thereby to deny the applicant the benefit it was entitled to under the agreement.

The case for indirect interference pleaded in paragraph 16 of the statement of claim was not addressed in the written submissions or argument. I do not propose to deal with it in these reasons, beyond saying that I have doubts that a case of indirect interference can be made out by pointing to the direct interference as the unlawful means.

I now turn to the issue of the balance of convenience and the question of whether the applicant will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted: Castlemaine Tooheys Ltd v The State of South Australia (1986) 161 CLR 148 at 153.

The common law action which the applicant brings, is in respect of its own contractual interests and to vindicate its personal rights. It is not a cause of action to vindicate the rights of the employees of LQ, although no doubt the applicant believes the interests of these employees are best served by remaining covered by the Hotels Award and having their industrial interests looked after by the applicant. There is no evidence that the applicant will suffer irreparable damage for which an award of damages will be an inadequate compensation if it loses industrial coverage of the employees of LQ employed in its bottle shops which are associated with its hotels. Nor is there any suggestion that the first respondent would not be able to satisfy an award of damages made in the applicant's favour.

In considering the balance of convenience, the Court must take into account the impact of any interlocutory injunctive relief on third parties: see Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 at 324 per Kirby P and the authorities cited there; News Limited v Australian Rugby Football League Ltd (1996) 64 FCR 410 (FC) at 525. In the present case, the 2002 Agreement applies to all employees of the first respondent throughout Australia. The injunctive relief sought is not limited to the Queensland employees only. Mr Keily has deposed that if an injunction is granted preventing the lodgement of the 2002 Agreement for certification, 3,132 employees will be denied access to immediate pay increases of $14.00 per week (pro-rated for casual and part time employees), backdated to 1 April 2002, and other benefits under the 2002 Agreement. The response of the applicant is that the first and second respondents, because of their conduct, are responsible for the situation and they should bare the consequences for it, including the angst of these employees being kept out of a pay rise.

I do not regard this as a sufficient response. The employees have voted on the agreement and can legitimately expect that it will be carried forward and processed under the Act. They are not parties to the proceedings and their interests will be hurt by the grant of the interlocutory relief sought. This circumstance weighs heavily against the grant of the injunctive relief sought.

The applicant submits that it has no, or only limited, rights to appear before the Commission to argue against the certification of the 2002 Agreement under the Act. It submits that the statutory safeguards are insufficient to ensure that the particular circumstances of the employees of LQ are protected, and that the interests of those employees are best protected by restraining lodgment of the 2002 Agreement and thereby forcing the first respondent to deal with the applicant and not the second respondent with respect to the industrial interests of the LQ employees, as was intended and agreed by the LHMU-SDA agreement. To seek to use interlocutory injunctive relief to circumvent the operation and perceived shortcomings of the Act, in the guise of using the relief in aid of and to protect a private contractual right of the applicant is not a proper or permissible exercise of the power to grant interlocutory injunctive relief.

On the whole of the material, I am not satisfied that the balance of convenience affirmatively favours the granting of the interlocutory injunctive relief sought. Indeed, I am satisfied that damages would be an adequate remedy and that the balance is against the grant of the interlocutory injunctive relief sought. In those circumstances, the application must fail: Silktone v Devreal Capital at 324.

The application will be dismissed.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper . Associate:

Dated: 29 April 2002 Counsel for the Applicant: Mr J Nolan Solicitor for the Applicant: Hall Payne Lawyers Counsel for the First Respondent: Mr M McDonald Solicitor for the First Respondent: Minter Ellison Counsel for the Second Respondent: Mr JE Murdoch SC and Miss CJ Arnold Solicitor for the Second Respondent: Mullins & Mullins Date of Hearing: 23 April 2002 Date of Judgment: 29 April 2002