CATCHWORDS
TRADE PRACTICES - Alleged secondary boycott - Alleged black ban on barge servicing off-shore seismic exploration vessel - Whether ban was imposed - Problems of deficiencies of evidence - Case not established - No question of law.
Trade Practices Act 1974, ss 45D.
WARREN MITCHELL PTY LTD (A.C.N. 009 194 638) v AUSTRALIAN MARITIME OFFICERS UNION, THE AUSTRALIAN INSTITUTE OF MARINE & POWER ENGINEERS, THE MARITIME UNION OF AUSTRALIA and TED BORONOVSKIS
No. WI 101 of 1994
CORAM: WILCOX CJ
PLACE: SYDNEY (HEARD IN PERTH)
DATE: 6 DECEMBER 1994
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) No. WI.101 of
WESTERN AUSTRALIA DISTRICT REGISTRY) 1994
BETWEEN: WARREN MITCHELL PTY LTD A.C.N. 009 194 638
Applicant
AND: AUSTRALIAN MARITIME OFFICERS UNION
First Respondent
THE AUSTRALIAN INSTITUTE OF MARINE AND POWER ENGINEERS
Second Respondent
THE MARITIME UNION OF AUSTRALIA
Third Respondent
and
TED BORONOVSKIS
Fourth Respondent
CORAM: WILCOX CJ
PLACE: SYDNEY (HEARD IN PERTH)
DATE: 6 DECEMBER 1994
MINUTES OF ORDERS
THE COURT ORDERS THAT:
1. The Application be dismissed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) No. WI.101 of
WESTERN AUSTRALIA DISTRICT REGISTRY ) 1994
BETWEEN: WARREN MITCHELL PTY LTD A.C.N. 009 194 638
Applicant
AND: AUSTRALIAN MARITIME OFFICERS UNION
First Respondent
THE AUSTRALIAN INSTITUTE OF MARINE AND POWER ENGINEERS
Second Respondent
THE MARITIME UNION OF AUSTRALIA
Third Respondent
and
TED BORONOVSKIS
Fourth Respondent
CORAM: WILCOX CJ
PLACE: SYDNEY (HEARD IN PERTH)
DATE: 6 DECEMBER 1994
REASONS FOR JUDGMENT
WILCOX CJ: This may be the last of the old style s.45D cases to come to judgment. That controversial provision was inserted in 1977 into the Trade Practices Act 1974. It was amended on several occasions before being repealed, and replaced by a substantially modified provision, by s.43 of the Industrial Relations Reform Act 1993. Section 64 of that Act transferred to this Court all proceedings under s.45D that were pending in the Federal Court of Australia on 30 March 1994.
The proceeding
The present case is brought by Warren Mitchell Pty Ltd, a company that trades under the name "Mitchell Marine Services" at Point Samson, Western Australia. Point Samson is situate on the Pilbara coast, some 400 kilometres north of Onslow. The company is controlled by its founder, Warren Richard Mitchell, who is a director of the company.
There are four respondents to the proceeding. The first three respondents are employee organisations registered under the Industrial Relations Act 1988, the Australian Maritime Officers Union ("the AMOU"), The Australian Institute of Maritime and Power Engineers ("the Institute") and The Marine Union of Australia (the "MUA"). The AMOU and the MUA were created by amalgamations after the events out of which the case arises, which took place in September to December 1991. One of the constituents of the AMOU was the Merchant Services Guild ("the Guild"). It is accepted on all sides that the AMOU is liable for any contravention of s.45D by the Guild. Similarly, MUA is the successor to the Seamans Union of Australia ("SUA") and liable for any contravention by it.
The fourth respondent is Ted Boronovskis. Mr Boronovskis is now the secretary of the Western Australian branch of the AMOU. At the time of the events material to this case, he was employed by the Guild as an industrial officer. Mr Boronovskis is joined as a respondent because of actions said to have been taken by him in that capacity.
The case does not raise any question of law; it turns entirely on matters of fact. All respondents deny that they contravened s.45D. They accept that the applicant lost the benefit of a contract that it had obtained, to take supplies to a seismic vessel operating off the Western Australian coast. However, they say this loss did not occur because of s.45D conduct, but because of a decision to terminate by the other party to the contract, Western Atlas International Inc. This company traded as Western Geophysical Australia. The witnesses referred to it as "Geophysical" and I will do the same.
At directions hearings conducted by Lee J, it became obvious, not only that there was a strenuous contest on liability, but also that the respondents disputed most of the applicant's allegations of damage. As it appeared that the determination of damages might be a complex and lengthy process, his Honour directed that issues of damage be postponed until after resolution of the issue of liability. Consequently, I am presently concerned only with liability.
The background facts
Although there is a sharp conflict in the evidence concerning critical events, there is little dispute about the background facts. A summary will suffice.
Mr Mitchell has been involved in the marine industry since 1974. He went to the Pilbara coast in 1976 as a partner in a fishing venture. He became a member of the Guild in 1981. In 1983 he commenced to trade on his own account and, shortly afterwards, formed the applicant company.
Mr Mitchell has operated as far afield as Albany and Weipa, but mostly along the Pilbara coast. He says he has worked on "all sorts of vessels, ranging from dinghies to support vessels for the oil industry". He has worked on "all sorts of fishing boats", including deep sea trawlers and in-shore trawlers.
Mr Mitchell is a qualified master. Despite a shabby attempt to impugn his competence by Mr Boronovskis, I am satisfied by the evidence of two independent witnesses, David Griffin and Glen Hawes, that Mr Mitchell is an experienced and capable marine officer. He was well able to carry out the tasks required by his company's contract with Geophysical.
During the period 1983-1991 the applicant company owned various boats and leased others. It is unnecessary to descend to detail. From time to time, the company dealt with a company named Stirling Marine Pty Ltd. This company was based at Fremantle but had a branch at Port Hedland, on the Pilbara coast. Mr Hawes was the Port Hedland manager at relevant times. The senior managers of the company, based in Fremantle, were Pat Breen and Bruce McNicholl.
During 1990 Mr Mitchell suffered a severe illness which necessitated surgical treatment. He was away from work for many months and this adversely affected the company's financial position. Shortly after Mr Mitchell returned to full time work, I gather in about July 1991, he became aware that Geophysical was looking for a contractor to run supplies, on a regular basis, to the "Western Horizon", a ship operated by it and engaged in seismic survey work in the Indian Ocean. Mr Mitchell contacted John Evans, the "party manager" of Geophysical at Karratha. The two men negotiated an oral agreement . There is a dispute between the present parties as to whether the oral agreement related only to a single trip or covered recurring work. That issue would be important in relation to damages but it is unnecessary to resolve it at the present time. It is common ground that the agreement covered at least the first supply trip and it is that trip with which I am presently concerned.
After Mr Mitchell reached agreement with Mr Evans, he looked round for a suitable vessel; his company did not have one that he thought adequate for the job. He approached Mr McNicholl. There was discussion about the charter of a boat called "San Pedro Sound". Mr McNicholl referred him to Mr Hawes. Negotiations continued but the "San Pedro Sound" became unavailable. So Mr Hawes offered the "Karawa", a landing barge with the same capacity as "San Pedro Sound". Mr Mitchell inspected the "Karawa" and accepted the offer.
On Tuesday, 3 September 1991 Mr Mitchell flew to Karratha. He had a meeting at the airport with Mr McNicholl and Mr Hawes about future hirings. While there, they accidentally met a group of people that included Mr Boronovskis, with whom Mr Mitchell had had contact some years before and who was then a Guild industrial officer, and Walter John Pritchard, then secretary of the Western Australian branch of SUA. Mr Mitchell had not previously met Mr Pritchard. That evening Mr McNicholl gathered together a number of people in the maritime industry to dine at the Karratha International Hotel. Amongst those present were Mr Mitchell and Philip Charles Olsen, the Western Australian branch secretary of the Institute.
A deal of evidence was led about the contact at Karratha on 3 September between Mr Mitchell and Messrs Boronovskis, Pritchard and Olsen. It is common ground that the three union officials were in Karratha for reasons unconnected with Mr Mitchell's enterprise. Nobody suggests that anything was said at that time about a ban or boycott. Mr Mitchell gave evidence of things done and said, or omitted to be done or said, that might suggest he was treated coolly by some or all the union officials. They disputed much of this and offered explanations about other matters; for example, Mr Olsen's partial deafness to account for any aloofness at the dinner. I do not think it necessary to go into these matters. I think it is clear that all three officials harboured a degree of reserve about Mr Mitchell. They suspected he had carried out work for the Robe River mining company, at Port Lambert near Point Samson, using non-union crews. This subject was particularly touchy that week. It appears that earlier that week the Robe River company terminated the use of a vessel manned by union members and contracted the work to an operator using non-union labour. The terminated vessel was returned to Fremantle, where it arrived on Saturday, 7 September. The crew were paid off under circumstances that attracted considerable media publicity and led to a demonstration in Fremantle, organised by the three maritime unions, on the following Monday.
Mr Mitchell said in evidence he had never used non-union labour. He said he told Mr Olsen this when Mr Olsen taxed him on the subject at the Karratha hotel. Mr Olsen recalled that conversation. He said in evidence "I seem to remember" that he accepted Mr Mitchell's statement. Perhaps so; but it is clear that, at all material times, Mr Pritchard, at least, believed Mr Mitchell had used non-union labour. However, he denied that this affected his conduct in any way.
The true issue is the conduct of the three officials. It is unnecessary to say more about the events at Karratha, or Mr Mitchell's earlier contracts with Robe River, other than that the union officials' (probably erroneous) belief that he had used non-union labour in the past would provide a credible motive, especially in that emotion-charged week, for the conduct he attributes to them.
The events of 5 and 6 September: the applicant's case
I turn to the critical matter: the aborted journey of the "Karawa" to the "Western Horizon". The divergence between the cases presented by the applicant, on the one hand, and the respondents, on the other, in relation to the events of 5 and 6 September, is so great that it is better to narrate them separately.
It is common ground that Mr Mitchell travelled to Onslow, where the "Karawa" was moored, on Wednesday, 4 September; that is, the day after the hotel dinner. He took with him the person who was to act as master of the vessel, David Griffin, and the engineer, Eric Korhomen. Mr Griffin was a member of the Guild. Mr Korhomen was a member of the Institute. Mr Mitchell, himself, was to act as mate on the voyage out to the "Western Horizon", the meeting between the two vessels being planned for 6am on Friday, 6 September. Mr Mitchell had arranged for two Onslow men, Mark Gavigan and Jason Manifis, to act as deckhands on the voyage. They were both members of the SUA.
The evidence includes entries in the log of "Karawa", covering the period from Wednesday, 4 September to Saturday, 7 September, inclusive. The entries were all written by Mr Griffin. Subject to an explanation about one item, Mr Griffin affirmed their accuracy. Mr Griffin is now retired. He is independent of all the parties to this case. I was impressed by him as a witness. He gave careful evidence, not hesitating to indicate unsureness about any matter he could not recall. I accept him as a witness of truth and the accuracy of his log entries. None of the respondents' counsel suggested the entries were unreliable. In a case abounding with uncertainties, the log entries provide firm guidance, so far as they go. Unfortunately, they do not go far enough to resolve the major factual issue.
The log shows that, at 1330 hours on Wednesday, 4 September, Mr Griffin, Mr Korhomen and Mr Gavigan mobilised the vessel and let go the cyclone ropes by which it had been secured. They apparently took no further action that day. The vessel remained at its cyclone mooring overnight. At 0545 hours on Thursday the crew commenced to shift the vessel to the wharf. They were joined at 0600 hours by Mr Manifis. Apparently, Mr Mitchell was not then on board. At 0720 the vessel was made fast at the "Wapet Wharf", the wharf operated by Western Australian Petroleum at Onslow. The crew commenced to load distillate for the "Western Horizon". When this was completed, about 1005 hours, the vessel was moved to the ramp for the loading of the pallets of supplies needed by "Western Horizon". This task was completed about 1100 hours. The vessel was then moved to a nearby position to await the late afternoon full tide.
The log does not record Mr Mitchell's movements during the Thursday. Mr Mitchell had no recollection of any particular business away from the vessel that day, although he conceded he might have gone away on business at some stage. Mr Griffin's recollection is that Mr Mitchell was "on board and engaged in the activities that occurred" during the morning. However, he added: "I think at some stage in the morning he went away on business and phoning and various things and we carried on".
It is clear that Mr Mitchell was on board when, at 1700 hours, "Karawa" departed its position in Beadon Creek, near the wharf. The vessel did not immediately head out to sea. It moved to a point described in the log as FT3. Mr Griffin explained that this was a large dumb lighter anchored in the bay. It was a convenient place to tie up for a few hours; something that was apparently necessary if "Karawa" was not to arrive too soon at the rendezvous point. Also, it appears that some fenders were taken on board at FT3.
The log records that "Karawa" tied up at FT3 at 1815 hours. The next entry is "1945 orders proceed Creek P Clarke". Peter Clarke is the Wapet manager at Onslow. As the vessel had nothing to do with Wapet, Mr Clarke was not in a position to "order" it to do anything. But it is clear from Mr Griffin's evidence that the vessel returned to the wharf because of a radio call received from Mr Clarke. Apparently, it was not unusual for the Wapet radio to be used to convey messages to boats in the area, even though they had no connection with the company.
The content of Mr Clarke's message, unfortunately, is unclear. Mr Clarke was called to give evidence but he had no recollection of the phone call. Mr Mitchell said that the message was directed to him and was that he should not continue the trip but should come back in and call Mr Boronovskis. Mr Griffin did not remember any mention of Mr Boronovskis. He said that, if Mr Boronovskis had been mentioned, it would have given him "an inkling that there was some problem there, which I didn't know". He remembered talking to Mr Mitchell in the wheelhouse about the reason for the recall. He said that he "just tried to resolve, in my brain, what it might be, because Mr Clarke hadn't said. It may be more cargo, or an altered rendezvous time".
The log shows that "Karawa" tied up at the wharf at 2015 hours. The next item is "industrial dispute". This is the item that required explanation. Mr Griffin said he could have put the entry in the log book the next morning "to sort of say that the reason that we were there doing nothing, that something had gone wrong ... It's not very well worded but that's why it's there". Asked what was the dispute, he said he understood "that we weren't to go to the 'Western Horizon', it'd been told not to receive us". He said he did not know where he got this information - "it may've been from Mr Mitchell or it could've been from Peter Clarke and I don't know where it originated."
Mr Mitchell said he telephoned Mr Evans as soon as the "Karawa" returned to the wharf. He was asked why he took this course, if the message was to ring Mr Boronovskis. He said he would naturally call Mr Evans, "because he was the client and I'd let him know what was going on". Mr Mitchell said he obtained Mr Boronovskis' phone number from Mr Evans but insisted that his purpose in ringing Mr Evans was to report what was happening. In his statement of evidence Mr Mitchell said Mr Evans told him that the unions had put a black ban on "Karawa" and that the "Western Horizon" crew would not accept "Karawa's" lines until he (Mr Mitchell) got off the vessel. This part of the statement was objected to by counsel for the respondents on the basis that it was hearsay. After discussion I admitted the evidence, not as proof of the truth of the facts allegedly asserted by Mr Evans, but merely as proof of the content of the conversation. Counsel for the applicant contended that this was a link in the chain of events leading to Mr Mitchell's ultimate decision to leave the vessel and terminate the contract. If the evidence were tendered as proof of the facts alleged in the conversation, it would plainly be hearsay.
It is common ground that Mr Mitchell telephoned Mr Boronovskis at his Perth home at about 8.30pm on the Thursday and that the conversation was acrimonious. As will appear, Mr Boronovskis' version of the matter is that this was the last of several conversations between the two men that day. According to Mr Mitchell, it was the only conversation that day. Both men agree that, during the course of the conversation, Mr Boronovskis used the phrase "persona non grata" to describe Mr Mitchell. But they differ as to its context. According to Mr Mitchell, the phrase was used in the course of allegations by Mr Boronovskis that he was not a member of the union and had been running line boats for Robe River with non-union crews. Mr Mitchell says he replied that was a "load of rubbish" and there was discussion as to whether he had paid all his union dues. Mr Mitchell said that Mr Boronovskis told him that "the lines would not be taken" (by the "Western Horizon" crew) "if you proceed to sea and the vessel would not be unloaded". Mr Mitchell then slammed down the receiver.
Mr Mitchell said he rang Mr Evans again to report the position. He also telephoned Mr McNicholl. Nothing was decided that night. Mr Mitchell firmly denied the suggestion that his contract was terminated that evening.
Mr Griffin said he saw Mr Mitchell in the mess of "Karawa" about 6am the next day, Friday; Mr Mitchell "wasn't happy with the situation". He said Mr Mitchell was "waiting for office hours so he could phone some people". Mr Griffin said there was "nothing much we could do" and he had to wait for "the company's orders". He meant Stirling Marine. Mr Griffin remembered Mr Mitchell saying that he would contact GWN, a television station, the "West Australian" newspaper and Mr Richard Court, a politician. He could not remember the exact complaint but Mr Mitchell "was unhappy with the deal".
Mr Mitchell gave evidence that he made a number of telephone calls that day. He rang the Sydney offices of some of the unions but was told to ring the State branches. He tried, unsuccessfully, to contact Mr Boronovskis. He succeeded in speaking to Trevor Johnson, President of the Guild, but he referred Mr Mitchell back to Mr Boronovskis. He rang Mr McNicholl and asked him to negotiate with the unions.
Mr Griffin said he phoned Mr McNicholl in Fremantle. At some stage Mr Mitchell said that all the crew should phone their unions. Mr Griffin went to the phone with Mr Korhomen. He tried to phone Mr Boronovskis, but he was not available. So he asked for Mr Olsen. [The Guild and Institute had adjoining offices in Fremantle]. Mr Griffin had a short conversation with Mr Olsen. He told him that Mr Korhomen was with him and "asked him what the thing was". He said Mr Olsen said he knew Mr Korhomen and "explained to me that there was a dispute with Mr Mitchell and they weren't going along with his operation basically". Mr Griffin could not remember Mr Olsen's exact words. He did recall saying to Mr Olsen that Mr Mitchell claims he was not scabbing in connection with Robe River and Mr Olsen replying "I don't believe him" or "We don't believe him". Mr Olsen did not give Mr Griffin any instruction or say anything about the voyage of the "Karawa" to the "Western Horizon".
Mr Gavigan telephoned SUA, on behalf of himself and Mr Manifis. He spoke to Mr Pritchard and gave his union number. Mr Pritchard replied that he already knew who was on board. Mr Pritchard did not instruct him not to perform his work on the vessel or obey the skipper. Mr Gavigan remembered Mr Mitchell being replaced as mate by Richard Paley, later in the day. Otherwise he could not remember anything unusual about the voyage at all.
The "Karawa" log shows that Mr Paley joined the vessel as mate at 1300 hours on Friday, 6 September. Mr Griffin recalled Mr McNicholl earlier telling him that he (Mr McNicholl) was checking the availability of Mr Paley, who lives in Onslow. Mr Mitchell said that he contacted Mr Paley. I do not think it matters who first spoke to Mr Paley. It is clear that, by 1pm, Mr Paley had replaced Mr Mitchell on the vessel.
Mr Mitchell's written statement details conversations between himself and Mr McNicholl and Mr Evans on 6 September. The evidence refers to statements by Mr McNicholl and Mr Evans about "black bans", assertions by Mr Mitchell of his intention to go ahead with the job and requests by both men not to do this because of the likely industrial consequences. Once again, I admitted this evidence on the basis that it explains Mr Mitchell's course of conduct; expressly, not as evidence of the truth of the matters said to have been stated by Mr McNicholl and Mr Evans.
Whatever was said, it is clear that by about 1pm on Friday, Mitchell Marine Services had lost the contract to supply "Western Horizon", at least on this occasion. The log book establishes that "Karawa" left the Onslow wharf at 1930 hours on 6 September for its rendezvous with "Western Horizon". The two vessels met at 0850 hours next day. The cargo was discharged without incident and "Karawa" then returned to Onslow, arriving at 2240 hours.
Mr Mitchell went to his home at Point Samson. On arrival he found a fax from Mr Evans. It read:
"DEAR WARREN
IT IS WITH MUCH REGRET I HAVE TO INFORM YOU THAT DUE TO CIRCUMSTANCES BEYOND MY CONTROL I MUST RELEASE YOU FROM OUR AGREEMENT.
I AM NOT IN A POSITION TO HAVE ANY FURTHER DELAYS, THUS I HAVE TO MAKE OTHER ARRANGEMENTS TO SUPPLY MY VESSEL WITH FUEL ETC:
THANKING YOU FOR ALL YOUR HELP IN THIS REGARD.
BEST REGARDS
J. EVANS."
The fax bore a typewritten date, 5 September 1991. Mr Mitchell said in evidence that this was a clerical error; the fax must have been sent on 6 September because the contract was not terminated till that day. The fax does not show a transmission time or date.
On Monday, 9 September Mr Mitchell wrote a letter to Fred Ross, President of the Guild, complaining about Mr Boronovskis. The letter read:
"Following my dismissal from the crew of the vessel 'Karawa' at Onslow W.A. on Thursday I am calling on you as a member of the guild to immediately dismiss the guild representative Mr T. Boronovskis. My reasons are listed below.
On Thursday 5th Sept Mr Boronovskis referred to me as a (1) Persona non grata.
(2) Claimed I was not a financial member of the Guild.
(3) Accused me of hiding behind Robe Rivers skirts
(4) And refused to negioate [sic] or even discuss the work I was involved in.
I discussed the problem with the crew of the vessel and all crew guild S.U.A. and Institute members could not see any reason for my dismissal. I have since rang Mr Boronovskis on three occassion [sic] to solve this problem to no avail. I do not as a member believe that Mr Boronovskis acted to the benifit [sic] of the Guild and used his position (to my knowledge unelected) to carry out a personal vendetta against myself. There fore I call on you to immediately suspend Mr Boronovskis pending a meeting (monthly) were [sic] Mr Boronovskis actions can be discussed openly with the members and then voted on."
Before passing to the respondents' evidence of the events of 5 and 6 September, I should refer to the evidence of Derek Albert Sheridan, second mate of the "Western Horizon" in September 1991. Mr Sheridan was called in the applicant's case, though his evidence does not really support that case.
Mr Sheridan said that the master of the "Western Horizon" was an American, John Daigenault. The Chief Officer was John Jones. There were three engineers and a number of seamen. The bosun was Thor Bekkervold, who was also the SUA delegate on the ship. As second mate, Mr Sheridan was the Guild delegate.
Mr Sheridan said that, at about 11am one day, Mr Jones told him that the deck crew "were going to have a problem with the supply boat that was coming out, because they were led to believe it had a non-union crew aboard". He understood the deck crew did not wish to work with a non-union crew, as they would have to do if it was to be unloaded. Mr Sheridan went to the satellite telephone and called Mr Boronovskis. He told him what he had heard. Mr Boronovskis replied "they were aware that there was a problem" and to leave it to him. He promised to call back after Mr Sheridan came off watch at 4pm.
The Geophysical co-ordinator was near Mr Sheridan when he called Mr Boronovskis. Mr Sheridan told him what had happened and watched the co-ordinator enter a summary of the matter in the computerised record transmitted from the ship to the company's offices on shore. The evidence does not disclose whether this was transmitted immediately, or only at the end of the day.
Mr Boronovskis called back shortly after 4pm. He told Mr Sheridan that everything was all right, to tell the crew this. Mr Sheridan told Mr Bekkervold that the problem had been settled, "we could work the vessel when he came out, without any problem". He also mentioned the matter to the co-ordinator. Mr Sheridan said the co-ordinator "informed his people ashore" but he could not recall seeing the co-ordinator type this message onto the computer.
Mr Sheridan was unable to specify the date of the events to which he deposed. But he was emphatic that they all occurred on the one day. He said it was "impossible" that Mr Boronovskis rang back on the day after the first conversation, rather than the same day. He was also clear that the events did not occur on the day immediately before the supply ship arrived, but on the day before that. On this basis, both the conversations between Mr Sheridan and Mr Boronovskis must have occurred on Thursday, 5 September.
The events of 5 and 6 September: the respondents' version
Mr Boronovskis said he learned on 4 September that Mr Mitchell was taking the "Karawa" out to the "Western Horizon". He said he learned this from "casual gossip". He could not say who told him. He contacted Stirling Marine and verified the information. He then telephoned the Wapet office at Onslow on two occasions, leaving messages for Mr Mitchell to call him. In the meantime, Mr Boronovskis spoke to Mr Pritchard who said that Mr Mitchell's company was not a respondent to the relevant award. About this time Mr Pritchard rang "Western Horizon" and told Mr Bekkervold that "Karawa" was delivering supplies to that vessel, that the operator was not a respondent to the award and might have a non-union crew. He says he gave no instructions to Mr Bekkervold. He phoned him because his members on the "Western Horizon" would expect to be notified of the position.
Mr Boronovskis said Mr Mitchell called him at about 11am on 5 September. Mr Boronovskis asked him the names of his crew. Mr Mitchell gave him the names. Mr Boronovskis rang the Sydney office of the Guild to check Mr Mitchell's membership status. He found that Mr Mitchell had a "deferred" membership and would need to make an additional payment to be fully paid up. [Mr Mitchell disputed this claim at the trial but it is not necessary to resolve the matter]. Mr Boronovskis contacted Mr Pritchard and gave him the seamen's names. Mr Pritchard told Mr Boronovskis that they were SUA members. Mr Boronovskis then telephoned Onslow once more and left another message for Mr Mitchell. When Mr Mitchell rang back, Mr Boronovskis told him he would have to pay more money to become a fully paid up member and his company would need to become a party to the award. He says Mr Mitchell agreed to both these demands. As far as he was concerned, that was the end of the problem and he told this to Mr Sheridan. Mr Boronovskis went home and received an "agitated" call from Mr Mitchell about 8.30pm blaming him for the loss of his contract with Geophysical. Mr Boronovskis said the conversation became heated. He told Mr Mitchell he was "persona non grata", not because he was banned but because of his abusive manner. He then hung up.
Mr Boronovskis said that, during the course of 5 September, he spoke to Mr Olsen. His purpose was to check whether Mr Korhomen was a member of the Institute. He found that he was. Mr Boronovskis denied any discussion with anybody about banning the "Karawa" or the crew not taking its lines. In particular, he said that he never said this to Mr Evans or Mr McNicholl.
Mr Olsen recalled a conversation with Mr Boronovskis during which Mr Boronovskis told him about the "Karawa". He checked Mr Korhomen's membership. He said this was his only concern. He denied any conversation relating to Robe River or knowledge of a black ban.
Mr Pritchard's evidence was like that of Mr Olsen; his only concern was to check that the deckhands were members of SUA. He said he told Mr Boronovskis on the Thursday that both the deckhands were members and that "later on the same day" he received a call from Mr Gavigan ringing to say that he and Mr Manifis were members. He said he did not give any instructions to Mr Gavigan or Mr Manifis not to carry out their usual duties or to take industrial action.
Subsequent events
There is not much dispute about events after 6 September. On 9 September Mr Boronovskis sent a fax to Mr Mitchell regarding dates for a projected meeting with himself and representatives of the SUA and the Institute. In the meantime, also on 9 September, Mr Mitchell wrote a letter to all three unions indicating that his company wished to become a respondent to the relevant award, the Maritime Offshore Oil and Gas Operations 1990 award. He mentioned that "we currently have a vessel working" and undertook to apply the award to "any personnel working in this field".
Because the three union officers had earlier commitments, it was not possible to arrange a meeting before 27 September. The meeting was held that day in Mr Boronovskis' office. Mr Mitchell brought with him Peter Smith of Mines and Metals, an employer body. There is some dispute about the conversation at the meeting. Mr Smith was not called, so I have only the evidence of Mr Mitchell and the three union officials. I think three things are clear. First, it was agreed that the applicant company would accept being "roped in" to the relevant award. Second, Mr Mitchell then alleged a "black ban" of the "Karawa", an allegation that was disputed. Third, the meeting broke up acrimoniously after Mr Mitchell produced solicitors' letters addressed to each of the unions alleging they had prevented the applicant performing its contract with Geophysical by threats and bans. The letters alleged damage and required each union to give an undertaking to refrain from further engaging in such conduct.
On 1 October 1991 the Guild served on the applicant a demand that it comply with the terms and conditions of an attached log of claims. The demand was not accepted. The Guild gave a notice of dispute to the Australian Industrial Relations Commission. On 29 January 1992 the applicant was made a respondent to the award.
In the meantime, Mr Boronovskis published a remarkable piece in the December 1991 issue of "Guild Log", the official newsletter of the Guild. He said in evidence that the item was written in late September or early October. It read:
"The cowboys are coming out of the woodwork
As a result of gradual increase of activity off the West Australian coast in the off-shore oil and gas exploration industry, the cowboys are starting to come out of the woodwork. Recently, the Guild had to take the extreme step of black banning an operator who had bare-boat chartered a barge, crewed it with non union members and whilst, not being party to the Offshore Oil and Gas Industry Award, had attempted to take a load of fuel to a seismic vessel. As a result of all the maritime crew onboard the seismic vessel refusing to accept his cargo, the operator was forced to the negotiating table, where he threatened the unions with writs for damages and actions under the Trade Practices Act. He was told that as long as he was prepared to become party to the Award and abide by the same terms and conditions that all the other operators in the industry were working under, the unions had no objection to anyone changing from the fishing industry to the offshore oil and gas industry. At the time of writing, the operator is unconvinced and believes that he can do it the Robe River way. The unions have taken the matter to the Australian Industrial Relations Commission and a dispute has been found by the Commission between the unions and the operator."
Mr Le Miere QC, senior counsel for the Guild and Mr Boronovskis, asked Mr Boronovskis about this article. He replied:
"... without putting a too fine a point on it, it is a piece of hype that is not true but that reflects a perception in the industry. Why did I write it? At that stage I had recently recommenced working for the union. I had aspirations to becoming the branch secretary. The then branch secretary indicated that he wished to step down because he felt he couldn't continue with those duties while being at sea. I wanted to impress my employers and I also wanted at the same time [to] send a message to all and sundry that although I was a new boy on the block I - for want of a better expression, 'I had a hairy chest'".
In other words, Mr Boronovskis was prepared to concoct a tale to mislead the members of his branch into supporting his candidature for the position of branch secretary. The item, and his admission of its falsity, does him no credit whatever. To the extent that his version of events matters, I see no reason to accept the word of a person admittedly prepared to engage in a deliberate deceit of his members. It is another question whether the article amounts to an admission sufficient to repair any deficiencies in the applicant's case.
Evaluation of the evidence
It is not possible to reconcile all the evidence in this case. Leaving aside conflicts between the evidence of Mr Mitchell and Mr Boronovskis, I have been troubled by the apparent discrepancy between the evidence of Mr Griffin and Mr Sheridan. I was impressed by both these witnesses. They are independent of the parties. Both appear to be careful and reliable people. Yet Mr Griffin was clear that telephone calls were being made to the union offices on the Friday morning while the burden of Mr Sheridan's evidence was that the problem was resolved by about 4pm on Thursday. Mr Griffin did not suggest he was aware on the Thursday night that the contract was terminated, yet the documents suggest this was the fact. Having reread the relevant evidence and given the matter consideration, I think the better view is that Mr Evans terminated the contract (at least for the subject voyage) on the Thursday night. The fax is dated 5 September. I accept the possibility of a typographical mistake, but I note that Mr Mitchell's letter to Mr Ross speaks of his dismissal from the crew of the vessel "on Thursday". Again, Mr Mitchell could have made a mistake; although it must be remembered that he wrote the letter only a few days after the relevant events. But it is most unlikely that there were two mistakes, each to the same effect, an incorrect reference to the Thursday rather than the Friday. I am reminded of the comment attributed by Oscar Wilde to Lady Bracknell in "The Importance of Being Ernest": "To lose one parent, Mr Worthing, may be regarded as a misfortune; to lose both looks like carelessness".
It is clear there was a heated conversation between Mr Mitchell and Mr Boronovskis at 8.30pm on the Thursday. This is consistent with Mr Mitchell having just had a conversation with Mr Evans during which Mr Evans terminated the contract. It is also consistent with Mr Mitchell having learned, in that conversation, that he was being black banned. The words "persona non grata", which were admittedly used, seem more consistent with talk of a ban than a mere objection to Mr Mitchell's aggression. But they do not assist me to decide whether the contract had already been determined.
I think Mr Mitchell's conversation with Mr Griffin at 6am the next day is more enlightening. Mr Griffin remembers Mr Mitchell talking of going to the media and a politician. He might think of doing that in reaction to a ban, even though the position was unresolved. But I consider this unlikely. I could understand Mr Mitchell taking this course if the contract was already terminated, if he had nothing more to lose; but not if there was still a chance of negotiating the problem. He would surely have realised that a public attack on the unions would exacerbate the situation.
One difficulty about accepting that the contract was cancelled on the Thursday night is the activity in ringing the union offices on Friday morning. This seems pointless if the contract was definitely lost. At one stage I was inclined to the view that the telephone calls indicate the contract was not cancelled on the Thursday night. But I think they cannot stand against the contemporaneous documents. As counsel submitted, the telephone calls are explicable on the basis that Mr Mitchell was trying to retrieve his position. If the only reason for cancellation of the contract was the attitude of the unions to his involvement, stemming from a belief that he was using non-union labour, it would be logical for him to correct that belief as a prelude to attempting to persuade them to change their attitude. On the Friday morning he knew he had not yet been replaced as mate of the vessel; and, so far as appears, no arrangement had yet been made between Geophysical and Stirling Marine for the latter company to take over the contract.
Even if the contract was not terminated until mid-Friday, as Mr Mitchell contends, the evidence falls short of establishing conduct contravening s.45D of the Trade Practices Act. I have already indicated that I accept that each of the respondents had a degree of scepticism about Mr Mitchell and his company. The evidence may justify a stronger finding; it may be correct to say that the respondents harboured hostility towards him. Except on the basis of hostility, it is difficult to explain Mr Pritchard's phone call to Mr Bekkervold. What was the point of telling the SUA delegate on the "Western Horizon" that the "Karawa" might have a non-union crew? I applaud the notion of union officials keeping their members informed about situations relevant to their work. But, surely, their duty is to ascertain the facts first; so they will supply accurate information rather than misinformation, as in this case. It is not as if Mr Bekkervold could have decided the facts for himself, so that a mere tip off would suffice. Nobody on the "Western Horizon" could have checked the union membership position of the "Karawa" crew; but Mr Pritchard could easily have done so, and did. Similarly, in relation to the fact that Mitchell Marine was not a respondent to the relevant award. It was Mr Pritchard's position that this was not an insuperable obstacle to the company carrying out the contract, but it was essential that the company commit itself to being roped in to the award and, in the meantime, to observe award conditions. Mr Bekkervold could not obtain such a commitment, Mr Pritchard could. It seems to me that Mr Pritchard's action in telephoning Mr Bekkervold at that stage, before ascertaining the facts or speaking to Mr Mitchell, should be seen, not as an act of responsibility by a union official to his members, but as an irresponsible piece of mischief-making stemming from hostility towards Mr Mitchell.
However, the applicant needs to show more than mischief-making. The applicant relies on s.45(1)(b) of the Trade Practices Act, as it then read:
"Subject to this section, a person shall not, in concert with a second person, engage in conduct that hinders or prevents the supply of goods or services by a third person to a fourth person (not being an employer of the first-mentioned person), or the acquisition of goods or services by a third person from a fourth person (not being an employer of the first-mentioned person), where -
...
(b) the fourth person is a corporation and the conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing -
(i) substantial loss or damage to the business of the fourth person or of a body corporate that is related to that person; or
(ii)a substantial lessening of competition in any market in which the fourth person or a body corporate that is related to that person supplies or acquires goods or services."
The applicant's case is that the "first" and "second" persons, for the purposes of this statutory formula, are any two of the respondents. The applicant claims they acted in concert to hinder or prevent the acquisition of services by Geophysical (the "third person") from the applicant ("the fourth person"), the conduct being engaged in for the purpose, and being likely to have the effect, of causing substantial loss or damage to the applicant's business.
What evidence is there that the respondents acted in concert to cause loss or damage to the applicant? What evidence is there that any loss or damage suffered by the applicant stemmed from concerted actions of the respondents, so as to entitle the applicant to recover that loss or damage from them?
There is no direct evidence of any agreement between the respondents or of concerted action. The only direct evidence came from the three union officials themselves, that Mr Boronovskis had telephone contact with both Mr Olsen and Mr Pritchard on 5 September 1991 regarding the union coverage of the "Karawa" crew and questioned whether the applicant was bound by the relevant award. All three officials claim these issues were satisfactorily resolved during that day. They say there was never any discussion about a ban. Under these circumstances, any finding that there was an agreement between the respondents to hinder the applicant's operations must depend upon inference.
I suspect that the three union officials had more contact, on the subject of the "Karawa", on 5 September than any of them are disposed to admit. However, I do not think there is sufficient evidence to justify an inference that they agreed on a ban. As I have explained, the statements attributed by Mr Mitchell to Mr Evans and Mr McNicholl cannot be received as evidence of the truth of the matters stated; that is, that there was a "black ban" on the "Karawa". What other evidence is there? Mr Mitchell deposes to a conversation with Mr Boronovskis on the Thursday evening when he was described as "persona non grata" and his union membership status was questioned. He also says that Mr Boronovskis told him the "Western Horizon" crew would not take the lines or unload the "Karawa". However, even if this was said, it falls well short of an assertion of an agreement between any particular people; except, perhaps, the members of the "Western Horizon" crew. If there was an agreement between the unions would not Mr Boronovskis have told Mr Mitchell? Mr Mitchell does not suggest he did. Mr Griffin spoke to Mr Olsen the following morning and was told "there was a dispute with Mr Mitchell and they weren't going along with his operation". But, even accepting this, as I do, it falls short of admitting any particular agreement. I agree that these conversations excite suspicion. But they must be set against other evidence which, in my opinion, admits of little doubt. If there was an agreement between the three union officials, or between Mr Boronovskis and Mr Olsen, for a black ban, why did Mr Boronovskis telephone Mr Bekkervold at about 4pm on the Thursday and tell him everything was all right? Surely, the most effective ban would be one imposed by the crew of the "Western Horizon". Without the co-operation of that crew, it would be impossible for the "Karawa" to supply the "Western Horizon"; whereas, the "Karawa" being already loaded, if its crew stuck together nothing could stop it reaching the "Western Horizon".
Several witnesses gave evidence to the effect that it would be unthinkable for a ship's crew to defy orders while at sea, in pursuit of an industrial objective. Even so, there was no reason for Mr Boronovskis to relax the pressure on Mr Mitchell and Geophysical by telling Mr Sheridan that everything was all right. If he had wished to keep up the pressure, but avoid putting crew members in jeopardy of mutiny charges, he could have kept the issue alive until it was clear (if this happened) that "Karawa" nonetheless would proceed with its mission; and then, at the last minute, instructed that the ban be lifted. Instead, he relaxed the pressure before the critical decision was taken.
If the union officials, or some of them, wanted to stop "Karawa" going to sea, but thought it unfair to the crew of "Western Horizon" to keep alive talk of refusing to take the lines, they could have sought to influence the "Karawa's" crew. They were all union members. The master and engineer were key members of the crew. A decision by either not to sail would have delayed the voyage, at least. A decision by the two deckhands may have caused delay, especially if it was followed by pressure on any recruited replacements. But, although the union officials had direct access to all these people, none of them suggested they should refuse to work.
It seems clear that the applicant lost the contract because it was terminated by Mr Evans. But the evidence does not establish what caused the termination. Mr Evans was not called, so the matter is left in the realm of speculation. I accept the likelihood that Mr Evans terminated the contract because of a perception that its fulfilment would involve industrial problems. But it does not follow that he was threatened with a ban by the three unions. He may have over-reacted to the message sent ashore by the "Western Horizon" co-ordinator, reporting the crew's reaction to Mr Pritchard's telephone call to Mr Bekkervold. He may have yielded to an approach by Mr McNicholl, anxious to have Stirling Marine take the whole benefit of the contract, and using the industrial situation as an excuse. Without evidence from Mr Evans, it is impossible to know.
Mr McNicholl was another notable absentee from the witness box. In their opening address, counsel for the applicant indicated he would be called. He was not. No explanation was given. There is no evidence that any of the respondents said anything to him about a black ban.
In considering whether or not the applicant has made out its case, it is instructive to refer to the particulars of the alleged conduct set out in para.12 of its Further Amended Statement of Claim (16 March 1994 edition). Subject to some amendments made at the hearing, these particulars were pressed. It was upon the basis of those particulars that Mr Viner QC, senior counsel for the applicant, contended in his final address that his client was entitled to succeed. Particular (a) reads:
"The Fourth Respondent, acting in concert with each of the First Respondent, the Second Respondent and the Third Respondent , or one or more of the Respondents, instructed the deckhands on the 'Western Horizon' not accept mooring lines from the Karawa or unload goods from the Karawa bound for the Western Horizon under the Geophysical Agreement."
There is no evidence that Mr Boronovskis, the fourth respondent, gave any instructions to the deckhands. It is inherently unlikely that he would have attempted to do this. They were members of SUA, not his union. There is evidence that Mr Pritchard passed a message to the deckhands calculated to raise their concern about the "Karawa". But there is no evidence that he gave them any instructions to refuse the "Karawa's" lines or to decline to unload her. To the extent that his morning telephone message might have given them a hint that they should take this course, its effect was countermanded by Mr Boronovskis' 4pm telephone conversation with Mr Sheridan, before the contract was lost.
Sub-paragraph (b) refers to Mr Sheridan's actions. It was abandoned at the hearing. Sub-paragraph (c) reads:
"Evans informed Mitchell that the Applicant had been black banned by each of the First, Second and Third Respondents in that the crew of the Western Horizon would not accept the mooring lines of the Karawa or unload it and that the Karawa should not put to sea and Mitchell should contact the Fourth Respondent for instructions."
There is evidence of what Mr Evans said to Mr Mitchell but no evidence, admissible against the respondents, of its accuracy. The statement made by Mr Evans to Mr Mitchell is not evidence of the existence of a black ban. Sub-paragraph (d) reads:
"The First Respondent by its officer the Fourth Respondent, informed Mitchell that:
(i) the crew of the Western Horizon would not accept mooring lines from the Karawa if the Applicant proceeded to sea to deliver goods to the Western Horizon.
(ii) the Applicant and Mitchell were persona non grata in the oil industry, meaning thereby that their services to the oil industry would be boycotted by members of the First Respondent and of the Second Respondent and of the Third Respondent so that the Applicant could not obtain business within the oil industry in waters along the Australian coastline.
(iii) the Applicant and Mitchell were not wanted in the oil industry meaning thereby that members of the First Respondent and the Second Respondent and the Third Respondent would not provide services to the Applicant to enable the Applicant to engage in business within the oil industry in waters along the Australian coastline."
Leaving aside the pleaded innuendoes, there is evidence that Mr Boronovskis made statements such as these to Mr Mitchell. I have reservations about Mr Mitchell's ability to recall detail. He was wrong about the detail of many matters. But I accept his fundamental honesty, which is more than I can say for Mr Boronovskis. So I accept that Mr Boronovskis made statements to Mr Mitchell along the lines of those particularised in sub-para.(d). However, as I have already suggested, this does not mean that a banning agreement was in place. The statements are equally consistent with an attempt by Mr Boronovskis to frighten Mr Mitchell off fulfilment of the contract; perhaps so he could demonstrate a "hairy chest" to the members of his branch in the run up to the Guild elections.
Sub-paragraph (e) reads:
"On the 6th September 1991 the Second Respondent by its officer, Phil Olsen ("Olsen") instructed Griffin that the Applicant was black banned meaning thereby that members of the First Respondent and the Second Respondent and the Third Respondent had been instructed not to and they would not supply the Applicant with services necessary to enable it to operate the Karawa to supply services to the Western Horizon or to operate vessels to service the oil industry in waters along the Australian coastline."
There is no evidence that Mr Olsen said anything like this to Mr Griffin. Both Mr Olsen and Mr Griffin denied such a conversation.
Sub-paragraph (f) reads:
"On the 6th September 1991 Olsen instructed Korhomen that the Applicant was black banned meaning thereby that members of the First respondent and the Second Respondent and the Third Respondent had been instructed not to and they would not supply the Applicant with services necessary to enable it to operate the Karawa to supply services to the Western Horizon or to operate vessels to service the oil industry in waters along the Australian coastline."
Mr Olsen denied giving this instruction. Mr Korhomen was not called. There is no evidence to support this allegation.
Sub-paragraph (g) reads:
"On the 6th September 1991 the Third Respondent by its officer, Wally Pritchard ("Pritchard"), instructed the Applicant's Deckhands, Manifest (sic) and Gagnevich (sic) that the Applicant was black banned and that they were not to go to sea on the Karawa for the Applicant meaning thereby that they should withdraw their services as crewmen for the Applicant on the Karawa for the intended voyage to the Western Horizon."
Mr Pritchard denied giving any such instruction. Mr Gavigan said that no instruction was given to him. Mr Manifis was not called, but nobody suggests that Mr Pritchard spoke to him on 6 September. There is no evidence to support this sub-paragraph.
Sub-paragraph (h) reads:
"On the 6th September 1991 the Third Respondent by its officer Pritchard instructed McNichol that the Karawa would only be permitted to proceed to sea to supply the Western Horizon and the black ban of the Applicant be lifted by each of the First Respondent and the Second Respondent and the Third Respondent if the Applicant and Mitchell were taken off the Karawa meaning thereby that Stirling Marine should repudiate the charter of the Karawa to the Applicant and undertake the supply voyage to the Western Horizon itself without Mitchell as a crew member or the Applicant as a contractor to Geophysical."
Mr Pritchard denied saying anything like this to Mr McNicholl. Mr McNicholl was not called. There is no evidence to support the sub-paragraph.
Mr Viner understandably emphasised the article in "Guild Log". He said in his opening address that this article verifies that Mr Boronovskis was the "central figure in imposing the black ban for all the maritime unions". However, the article does not refer to the Institute and SUA. On the contrary, it speaks of "the Guild ... black banning an operator". I agree with Mr Viner that the article constitutes an admission by Mr Boronovskis and the Guild. However, the admission cannot rise higher than its content. If, as I accept, the article is to be read as referring to "Karawa", it admits no more than that the Guild imposed a black ban on the vessel. It does not admit that the Guild acted in concert with the other maritime unions. The article may be read as implying that the Guild acted through an agent, and any agent clearly was Mr Boronovskis, but a corporate respondent does not act "in concert" with the individual who is its agent in the transaction.
Mr Viner sought to use the article as admissions by the Institute and SUA. This argument runs into two difficulties. First, were the circumstances of its publication such that it was "unlikely that (they) would allow an erroneous statement to pass unchallenged", to adopt the test stated in Lustre Hosiery v York (1935) 54 CLR 134 at 143. In relation to the Institute, this is arguable. Mr Olsen said he read the article shortly after its publication in December 1991. He took no action to deny the story or dissociate his union from it. Apparently, it did not occur to him to do so. This is understandable. His union was not mentioned in the article. It might be thought unwise to rush in with a denial of involvement; suspicion tends to focus on people who protest innocence before they are accused. In any case, whether or not the Lustre Hosiery test applies, the extent of any admission is limited by the content of the article. In its terms, it does not impeach the Institute.
So far as SUA is concerned, Mr Pritchard's evidence was that he learned of the article only this year, when perusing documents discovered in this case. It was then far too late to make an effective denial.
I have some sympathy with Mr Mitchell. He seems to be an honest and hardworking man. He lost a lucrative contract under circumstances that give rise to the suspicion that this was because of the respondents' unjustified beliefs about his activities. He seems to have been treated unfairly, even high handedly. It is possible that the respondents' actions went so far as to constitute conduct contravening s.45D(1) of the Trade Practices Act. But there are so many gaps in the evidence that it is impossible for me to be satisfied of this, even on the balance of probabilities. The Application must be dismissed.
I certify that this and the preceding thirty-nine (39) pages
are a true copy of the Reasons for Judgment
of the Honourable Chief Justice Wilcox.
Associate:
Dated: 6 December 1994
APPEARANCES
Counsel for the Applicant: I Viner QC
Solicitors for the Applicant: B W Duckham
Counsel for the First and
Fourth Respondents: R Le Miere QC and A Drake-Brockman
Solicitors for the First and
Fourth Respondents: Dwyer Durack
Counsel for the Second
Respondents: J C Hammond
Solicitors for the Second
Respondents: Hammond Worthington Prevost
Counsel for the Third
Respondents: R Kenzie QC and M L Barker
Solicitors for the Third
Respondents: Fiocco Hopkins Rattigan
Dates of hearing: 17 - 20 October 1994
