Eastern Basin Pty Ltd v Maritime Union of Australia [1999] FCA 294

FEDERAL COURT OF AUSTRALIA

EASTERN BASIN PTY LIMITED v MARITIME UNION OF AUSTRALIA & JAMES BOYLE

N 226 OF 1999

HELY J

24 MARCH 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 226 OF 1999

BETWEEN:	EASTERN BASIN PTY LIMITED Applicant
AND:	MARITIME UNION OF AUSTRALIA First Respondent JAMES BOYLE Second Respondent
JUDGE:	HELY J
DATE OF ORDER:	24 MARCH 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Until the hearing and determination of this matter or further order, the respondents be restrained (whether by themselves, their officials, delegates, employees, agents or howsoever otherwise) from directing, procuring, persuading, advising or authorising members of the MUA to refuse to perform work in connection with the loading of the following ships:

(a) Western Condor, due to berth at Eastern Basin on or about 25 March 1999;

(b) Western Hawk, due to berth at Eastern Basin on or around 1 April 1999.

2. The respondents do forthwith revoke and cancel any threat, instruction, direction or advice given to any other person to carry out any act of a kind referred to in Order 1.

3. Liberty to the respondents to apply for a variation of these orders on such notice, if any, as a judge may allow.

4. Liberty to the applicant to bring in short minutes of order extending the operation of Order 1 to other ships due to berth at Eastern Basin, provided that the conduct restrained, if engaged in by the respondents, would constitute a tortious interference with the applicant’s rights.

5. The matter be adjourned to a date to be fixed for further directions.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 226 OF 1999

BETWEEN:

EASTERN BASIN PTY LIMITED

Applicant

AND:

MARITIME UNION OF AUSTRALIA

First Respondent

JAMES BOYLE

Second Respondent

JUDGE:	HELY J
DATE:	24 MARCH 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 These proceedings were instituted in the Supreme Court of New South Wales by a summons filed on 2 February 1999.

2 On 26 February 1999 Windeyer J accepted an undertaking proffered to the Supreme Court by the respondents that the Maritime Union of Australia (“MUA”) would recommend to its members employed by Patrick’s Stevedores Holdings Pty Ltd (“Patricks”) at the Eastern Basin Wharves of the Newcastle Port, that industrial action not be taken against Patricks because of any stevedoring operations relating to the MV Maunakea which may or will include the movement of cargo to or from a ship’s gangway being performed by persons other than employees of Patricks.

3 On the basis of that undertaking, Windeyer J ordered the respondents to file and serve any material for an interlocutory hearing on 5 March 1999 and reserved liberty to apply on 24 hours notice. After those undertakings were given, there was some activity by the MUA or persons purporting to act on its behalf, to which I will later refer. But the ship left the Eastern Basin Wharf at 3 am on the morning of 5 March 1999, an hour after its scheduled time of departure.

4 The Supreme Court proceedings were adjourned until 22 March 1999. On 16 March 1999 the solicitors for the applicant wrote to the solicitors for the respondents notifying them that interlocutory relief would be sought on the adjourned date in relation to the Western Condor which was then due to berth at Eastern Basin on 23 March 1999, as well as interlocutory relief of a more general nature.

5 When the matter came before the Supreme Court on 22 March 1999, the proceedings were, on the respondents’ application, transferred to this Court pursuant to the cross-vesting legislation. No other material was filed by the respondents pursuant to the order of Windeyer J.

6 The relief which the applicant now claims is:

“1. Until the hearing and determination of this matter or further order, the respondents be restrained (whether by themselves, their officials, delegates, employees, agents or howsoever otherwise) from directing, procuring, persuading, advising or authorising members of the MUA to refuse to perform work in connection with the loading of the following ships:

(a) Western Condor, due to berth at Eastern Basin on or about 25 March 1999;

(b) Western Hawk, due to berth at Eastern Basin on or around 1 April 1999.

2. Until the hearing and determination of this matter or further order, the respondents be restrained (whether by their officials, delegates, employees, agents or howsoever otherwise) from interfering with the business of the applicant and in particular by:-

(a) threatening or doing or omitting to do any act, or being a party to any act, which would directly or indirectly hinder, obstruct or interfere with or delay the due loading, unloading, berthing or departure of any ship which berths or is due to berth at Eastern Basin wharf in the Port of Newcastle.

(b) inducing, procuring or threatening or attempting to induce or procure persons, firms or companies (with whom the applicant has entered or may enter into contractual relations or do business with) to refuse or neglect to enter into contractual relations or do business with the applicant.

3. The respondents do forthwith revoke and cancel any threat, instruction, direction or advice given to any other person to carry out any act of a kind referred to in order 1 or 2.

4. The respondents shall issue forthwith a media release to ABC Radio, Newcastle, NBN Ltd, Prime Television Ltd, 2HD Broadcaster, 106.9 Radio NX FM, 105.3 New FM, NRTV and ABC TV, and the Daily Commercial News newspaper on the letterhead of the First Defendant, that the Supreme Court of New South Wales has made orders 1, 2 and 3 above.”

7 The respondents offer undertakings to the Court in the following form, and submit that, on the basis of those undertakings, there is no justification for the grant of interlocutory injunctive relief:

“The Maritime Union of Australia (“the First Defendant”) undertakes to recommend to its members employed by Patrick Stevedores Holding Pty Limited (ACN 060 462 919) (“Patricks”) at the Eastern Basin wharf in the Port of Newcastle, and Mr James Boyle (“the Second Defendant”), undertakes to recommend to those members that industrial action not be taken against Patricks because of any stevedoring operations relating to:

(i) the Western Condor which is due to arrive on or about 25 March 1999; and

(ii) the Western Hawk which is due to arrive on or about 1 April 1999,

(collectively “the Ships”)

which may or will include the movement of cargo to or from the Ship’s gangway being performed by persons other than employees of Patricks (“the Recommendation).

IN PURSUANCE OF THE UNDERTAKING:

1. Subject to the First and/or Second Defendant being advised of those members of the First Defendant who are expected to be engaged in the unloading of the Ships either an authorised representative of the First Defendant or the Second Defendant:

(i) will telephone each such member of the First Defendant expected to be engaged in the unloading of the Ships and make the Recommendation;

(ii) will deliver a letter to those such members of the First Defendant not able to be contacted by telephone. The said letter to make the Recommendation and to be delivered:

A. in relation to the Western Condor on or before 8:00 pm, 24 March 1999; and

B. in relation to the Western Hawk on or before 8:00 pm, 31 March 1999.

2. Either an authorised representative of the First Defendant or the Second Defendant will attend the amenities shed at Eastern Basin wharf prior to the starting time of the commencement of the shift to unload:

(i) the Western Condor on or about 25 March 1999; and

(ii) the Western Hawk on or about 1 April 1999,

for the purposes of making the Recommendation, and will post a copy of this undertaking in a visible place in the amenities shed.”

Background

8 In mid 1998 the applicant obtained a lease of the Eastern Basin Distribution Centre at the Port of Newcastle. The facilities have been operative since 21 September 1998. Historically, the applicant’s workforce have been members of the Transport Workers Union (“TWU”), whereas MUA traditionally has been the only union to represent wharf labour.

9 The method by which the applicant wishes to carry on its business involves the carriage of goods to and from the ship’s gangway, rather than to and from the land edge of the wharf, as has usually been the case in the past. Traditionally it is MUA members who were generally responsible for the movement of goods around wharves and the loading and unloading of trucks and ships where goods were delivered to a wharf.

10 By this method of delivery the applicant hopes to secure economies and efficiencies.

11 The applicant subcontracts to Patricks the loading and unloading of ships which are berthed at Eastern Basin. There is no dispute but that Patricks has the subcontract with respect to the Western Condor now due on 25 March 1999 and the Western Hawk, now due to berth around 1 April 1999.

The applicant’s claim

12 The applicant claims:

(a) That the respondents have induced employees of Patricks to break their contracts of employment with Patricks by refusing to load and unload vessels unless Patricks employees move cargo around the wharf by forklift, even though Patricks does not have the contract to do that work (Patricks employees are generally members of the MUA).

That conduct interferes with the performance by Patricks of its contract with the applicant to load and/or unload the ships, and with the applicant’s contracts with its customers to deliver and take goods to or from the side of the ship. See Merkur Island Shipping Corporation v Laughton [1983] AC 570.

(b) That the respondents have induced employees of Patricks to breach their employment contracts with Patricks and thereby interfered with the business of the applicant. See Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Airline Pilots [1991] VR 637 for what may compendiously be described as the tort of unlawful interference with a trade or business - “unlawful interference” encompassing procuring breach, or interference with the performance of subsisting contracts.

The applicant’s evidence

13 The applicant’s evidence raises a prima facie case that:

· At about the time the applicant commenced its operations (September 1998), the MUA indicated that it was opposed to and would seek to prevent the success of the defendant’s business at Eastern Basin, because the MUA was determined to protect is members’ area of work.

· In the period September-December 1998 there were some comparatively minor incidents at Webb Dock in Melbourne and the wharf in Newcastle, where the loading of vessels in the manner desired by the applicant was impeded.

· In the period to December 1998 the MUA would not allow vessels to be loaded or unloaded at Eastern Basin wharf unless the applicant agreed to a demarcation whereby the applicant’s workforce was prevented from using forklifts in relation to the wharves.

· Between October and December 1998 three timber ships arrived at the Port of Newcastle and were berthed at the Western Basin wharf adjacent to the Eastern Basin wharf. The applicant would have preferred for the ships to be berthed at the Eastern Basin wharf. MUA would not agree to timber being transported by the applicant directly from Western Basin to Eastern Basin Wharf. An MUA official is said to have stated on 31 December 1998 that another official “has three busloads of men ready to travel to Western Basin wharf to physically remove your (ie the applicants’) people”.

14 The first ship to berth at Eastern Basin wharf since it became operational on 21 September 1998 was the MV Kapitan Betkher which arrived on 1 February 1999. There is a prima facie case that MUA members refused to unload the vessel because the applicant, rather than Patricks with its MUA labour, was contractually obliged to perform the forklift work on the wharf.

15 The second ship was the MV Maunakea which arrived on 11 February 1999. The applicant’s evidence included an alleged conversation on 17 February 1998 with an MUA official which included a statement to the effect that unless MUA can “unload the truck and run the product to the hook” we’re “planning a birthday party for the shipless wharf in 12 months time”.

16 It will be remembered that undertakings referred to in par 2 were given by MUA to Windeyer J on 26 February 1999. There is a prima facie case that:

· On 1 March 1999 Patricks’ employees stopped loading the ship for about a day because of an issue raised by MUA officials as to the manning of a mobile crane, contrary to the provisions of an Enterprise Agreement made in 1998 which provided for work to continue pending conciliation of disputes (except for safety disputes).

· On 5 March 1999, when the MV Maunakea was due to depart, pickets wearing shirts endorsed “MUA is here to stay” were in place, which the linesmen (who were required to release the ship from its moorings) would not cross. MUA denied that it was responsible for this picketing activity.

17 It is the applicant’s contention that none of the threats on the part of MUA implicit in the above recitation of the applicant’s evidence have been withdrawn, and that the applicant has suffered and will suffer serious loss and damage as a result of MUA industrial action with respect to the applicant’s business. The applicant agrees to an early final hearing.

Decision

18 My function is not to decide the ultimate issues between these parties, but to decide whether there is a serious question to be tried as to whether the applicant is entitled to final relief, and where the balance of convenience lies. I also take into account the observations of North J in Australian Paper Ltd v CEPU (1998) 81 IR 15 as to the need for interlocutory injunctions to be precise and unambiguous, and no wider in ambit than is necessary and to other matters which, in an industrial context, are or may be germane to the exercise of the discretion whether or not to grant particular interlocutory relief.

19 The respondents did not dispute that inducing or procuring breaches of the contracts of employment between MUA members and Patricks could expose MUA to tortious liability to the applicant. The authorities referred to earlier support the view that interference with the trade or business of another person by doing unlawful acts is tortious conduct, and “unlawful acts” includes procuring another person to break a subsisting contract or interference with the performance of a subsisting contract. The applicant has established a prima facie case, and the balance of convenience favours the grant of interlocutory relief.

20 The consequence is that the applicant is entitled to an interlocutory injunction in terms of Order 1 subject to a possible question as to whether there should be any qualification to the terms of the restraint, and as to whether the applicant’s position is adequately protected by the undertaking proffered. I do not think that the undertaking proffered on behalf of the respondents disentitles the applicant to that relief, if only because the undertaking is confined to the making of a recommendation by the respondents, whereas the applicant’s complaint is of unlawful activity on the part of the respondents. That view is reinforced by the fact that, on the applicant’s case, the undertaking given to Windeyer J was undermined by subsequent conduct for which, on its case, MUA is responsible. I do not think that this is a case in which it has been established that the applicant’s desire to go beyond the undertaking is motivated by tactical concerns.

21 I do not think that the words “directing, procuring, persuading or authorising” are objectionable. Patrick Stevedore No 1 Pty Ltd v Maritime Union of Australia (1998) 79 IR 268 is an example of an injunction, in the context of an industrial dispute, couched in similar terms.

22 Nor is there any substance in the contention that the injunction should only lie if Patricks is the stevedore, and, in any event, it is anticipated that this will be so. It just happens that Patricks is the only stevedore so far involved, but on the applicant’s case, the MUA action is directed at the applicant, not at Patricks.

23 There is a question as to whether, having regard to the definition of “industrial action” (which s 170MN of the Workplace Relations Act 1996 forbids during the term of a certified agreement) and the terms of that agreement earlier referred to, there should be some qualification to the injunction to except from its operation safety issues, should they arise.

24 The injunction is not directed at employees. They could, of course, be in contempt if they knowingly participated in the respondents doing the acts which the injunction forbids. But, the theoretical possibility that safety issues might arise involving the respondents which would be forbidden by the injunction is appropriately dealt with by a reservation of liberty to apply for a variation of the injunction on such notice, if any as a judge may allow.

25 I therefore propose to grant an interlocutory injunction in terms of Order 1 as sought reserving liberty to the respondents to apply for a variation of the injunction on such notice, if any as a judge may allow.

26 I would be prepared to extend Order 1 beyond the ships named so as to include other ships due to berth at Eastern Basin, provided that there was some qualification to the terms of the order so as to make it plain that the conduct restrained would, if it occurred, be a tortious interference with the applicant’s rights. To that extent, I would accommodate the order sought in 2(a), but not otherwise.

27 I am not prepared, in the exercise of my discretion to make an order in terms of 2(b). An order to that effect is too general in character, and encompasses conduct which is not necessarily tortious and unlawful. There is an insufficient foundation in the evidence for relief so broadly framed. The evidence as to intimidation (see par 13 above) provides too slight a foundation for that relief.

28 Subject to wording changes to accommodate my decision on Order 2, I am prepared to make an order in terms of par 3. The applicant does not know whether the respondents have already done things which, if done after the order, would be a breach of it. If they have, then they should be undone. Daily Mirror Newspapers v Gardner [1968] 2 QB 762 at 770 is an example of an order to similar effect.

29 I do not think that it is appropriate to make an order in terms of par 4, because the making of such an order could, in the present context, convey a view as to where the merits of the matter lie. It really assumes that the defendants have been found guilty of a tortious interference with the applicant's business, whereas there is only a prima facie case to that effect. The applicant is able to publicise the relief which it has obtained if it wishes. Whilst an order to similar effect was made by Northrop J in Australian Postal Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (unreported, Federal Court, 15 December 1997) the circumstances are different. Interlocutory relief which is mandatory in character must be the exception, rather than the rule.

Orders

30 On the applicant giving the usual undertaking as to damages; I order that:

(a) Western Condor, due to berth at Eastern Basin on or about 25 March 1999;

(b) Western Hawk, due to berth at Eastern Basin on or around 1 April 1999.

2. The respondents do forthwith revoke and cancel any threat, instruction, direction or advice given to any other person to carry out any act of a kind referred to in Order 1.

3. Liberty to the respondents to apply for a variation of these orders on such notice, if any, as a judge may allow.

5. The matter be adjourned to a date to be fixed for further directions.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated: 24 March 1999

Counsel for the Applicant:	J L Trew QC, R H B Wood and H W H Bauer

Solicitor for the Applicant:	Clayton Utz

Counsel for the Respondent:	S Crawshaw SC and P Ginters

Solicitor for the Respondent:	Taylor & Scott

Date of Hearing:	23 March 1999

Date of Judgment:	24 March 1999

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