Beautrans P/L v CSR Ltd [2002] QSC 2

SUPREME COURT OF QUEENSLAND CITATION: Beautrans P/L v CSR Ltd [2002] QSC 002 PARTIES: BEAUTRANS PTY LTD and others (applicants) v CSR LIMITED (respondent) FILE NO: S10902 of 2001 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 11 January 2002 DELIVERED AT: Brisbane HEARING DATE: 19 December 2001 JUDGE: Muir J ORDER: Application dismissed CATCHWORDS: EQUITY – EQUITABLE REMEDIES - INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – whether serious question to be tried – whether applicants likely to suffer irretrievable prejudice – balance of convenience COUNSEL: P L O’Shea SC, with him D A Kelly for the applicants S L Doyle SC, with him D G Clothier for the respondent SOLICITORS: Phillips Fox for the applicants Corrs Chambers Westgarth for the respondent [1] The applicant/plaintiffs seek interlocutory injunctions restraining the respondent CSR Limited from engaging in conduct which is allegedly in breach of separate contracts entered into between it and each of the applicants. The applicants are owner/operators of six-wheel trucks having a carrying capacity of between 4.6m3 and 5.8m3 (“maxis”) used by them to carry concrete from the respondent’s concrete plants in south-east Queensland in concrete mixers mounted on the trucks to constructions sites. The mixers (referred to in the material as “agitators”) are supplied by the respondent. [2] Clauses 9.2 a) and 9.2 b) of each contract relevantly provide - “a) The loading order at a Plant at the start of the day will be in accordance with a list of Concrete Trucks made up of those -- 1 of 4 -- 2 Concrete Trucks assigned to that Plant and not rostered off, in accordance with Clause 26. b) Thereafter the Concrete Trucks will be loaded in order of their return to a Plant with the exception of: i) Loads less than 3.0m3 when a Mini Truck is available ii) Loads greater than the Mixer capacity or legal carrying capacity of the Concrete Truck next in line, and iii) Concrete Trucks with returned concrete where it is impractical due to lack of facilities or time constraint, to transfer the returned concrete to the next Concrete Truck in line.” [3] Clause 26 of each of the carrier’s contract relevantly provided – “26. ROSTERING 26.1 CSR undertakes that it shall operate a plant roster to ensure that all Carriers shall be exposed to the full plant market and shall have the opportunity to cart a quantity of concrete which is as close as commercially practicable to the average fleet utilisation level applicable during relevant period to a particular plant or area, provided that the level of customer service set by CSR is achieved. 26.2 CSR will not roster-off a Carrier solely because it is delivering Concrete in excess of the Annual Fleet Productivity level applicable during the next three (3) month period. 26.3 The rosters referred to in Clause 26.1 will include: a) Daily start roster. b) Daily transfer roster. c) Period of transfer roster. d) Roster-off roster (where there are Concrete Trucks surplus to customer requirements, as determined by CSR).” [4] At the time the applicants’ contracts were entered into, concrete was being carried in maxis and mini trucks with a carrying capacity of between 2m3 and 2.4m3. There were approximately 90 maxis owned and operated by independent contractors and about 20 owned and operated by the respondent. The number of company owned maxis declined rapidly in 2000 and 2001. There were relatively few minis. -- 2 of 4 -- 3 [5] In about July/August 2000, the respondent concluded that it could increase its competitiveness and improve its profitability by introducing eight-wheel concrete trucks (“eight-wheelers”) with a carrying capacity approximately 7m3. In furtherance of its aim, it persuaded prospective owner/operators to acquire eight- wheelers and enter into cartage contracts with it. Nine such contracts were entered into on 6 September 2000. Eight of the nine new contractors were previous maxi owners who terminated their existing maxi contracts. Nine further cartage contracts were entered into by owners of eight-wheelers on 19 February 2001. Each of those contractors was previously a maxi owner which terminated its maxi contract. [6] There is evidence that the respondent has given preferential treatment to the owners of eight-wheelers. The applicants’principal complaints are that: (a) eight-wheelers are loaded at the start of a working day in priority to maxis. This conduct, it is alleged, has led to a decrease in the applicants’respective earnings; (b) eight-wheelers returning to a plant after delivering a load of concrete are loaded ahead of the maxis which arrived earlier and are queued waiting to be loaded; (c) the respondent, where possible, provides the eight-wheelers with full loads and does not afford equal opportunities in this regard to the maxis; (d) the respondent assigns the eight-wheelers to its busiest plants so as to maximise the work available to them. [7] The applicants contend that the above conduct is in breach of clauses 9 and 26 of the contract. [8] The respondents advance various arguments in support of their submission that the applicants have not shown a triable issue or a serious question to be tried. The principal arguments are that – (a) Clauses 9 and 26 of each contract regulate the dealings between the respondent and “the Carrier”. “Carrier” (which is defined in clause 1.1) means the operator and provider of a maxi (that is, a truck without an agitator). The definition of “truck” in clause 1.1 is a chassis and cab “without the mixer”. Consequently clause 9 only legislates in respect of maxis (and also minis) owned and operated by independent contractors and does not apply to eight-wheelers. (b) Clause 9.1 entitles the respondent to nominate loads in excess of the carrying capacity of the maxis. That permits the respondent to give preferential treatment to the eight-wheelers and the applicants have no grounds for complaint. [9] I do not accept the submission that there is no triable issue. The respondent makes some cogent points, but the applicants’ case is hardly unarguable. There is a degree of terminological confusion in the contracts. Taking the first point advanced by the respondent, clause 9.1a) treats the “Carrier” as having a “Concrete Truck”. -- 3 of 4 -- 4 “Concrete Truck” is defined as including the cab/chassis and agitator unit. The balance of the clause is then directed to rights and obligations in respect of “Concrete Trucks”. The clause is thus susceptible of a rather broader construction than that suggested by the respondent. [10] It is arguable also that the respondent’s construction does the impermissible by seeking to construe clause 9.1 in isolation, rather than in the context of the broader scheme contained in clauses 9.1 to 9.4 inclusive. [11] Having regard to my conclusions on the question of balance of convenience, I do not propose to go into the construction argument advanced in relation to clause 26, beyond mentioning that I accept the existence of a triable issue. [12] In my view, the balance of convenience does not favour the granting of an injunction. This dispute has been simmering for some considerable time. Formal complaints were made to the respondent in April 2001 and a threat of litigation was made in July 2001. Negotiations between the parties took place over a period of months in the course of last year. The material, viewed as a whole, does not suggest to me that the applicants are likely to suffer any irretrievable prejudice if the litigation is prosecuted with appropriate expedition and a trial held at the first reasonable opportunity. I accept that there may be some difficulty in proving damages, but that consideration applies with probably greater force to the loss which the respondent may incur if injunctive relief on the lines sought by the applicants is granted. In that event, there would be a possible loss of competitiveness, or at least, claims by the respondent in that regard. [13] I mention that a case is not made out for the existence of any real hardship on the part of any of the applicants. The respondent keeps extensive records which should provide considerable assistance in enabling applicants to calculate their loss and damage should they be successful in the action. Looking at the matter broadly, I am strongly of the view that the most desirable course is to get this matter on for trial as quickly as possible. One consideration which the parties may care to address is whether there should be a separate trial of the questions of construction and of any other issues which might lend themselves to determination on a preliminary basis. If the trial were split in this way, a trial of preliminary issues should be able to be held within a few months. [14] I propose to order that the application be dismissed and that the costs of and incident to the application be reserved. -- 4 of 4 --