Australian Competition and Consumer Commission v The Maritime Union of Australia
[2001] FCA 1807
•21 NOVEMBER 2001
FEDERAL COURT OF AUSTRALIA
Australian Competition & Consumer Commission v The Maritime Union of Australia [2001] FCA 1807
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v THE MARITIME UNION OF AUSTRALIA, DERRICK NEWLYN, MICHAEL O'LEARY AND JAMES BOYLE
N 358 OF 2000
HILL J
21 NOVEMBER 2001
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 358 of 2000
BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANTAND:
MARITIME UNION OF AUSTRALIA
FIRST RESPONDENTDERRICK NEWLYN
SECOND RESPONDENTMICHAEL O'LEARY
THIRD RESPONDENTJAMES BOYLE
FOURTH RESPONDENTJUDGE:
HILL J
DATE OF ORDER:
21 NOVEMBER 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The orders set out in the draft short minutes of order prepared by the respondents and to which changes have been made in accordance with matters that have been agreed between the parties be made (with schedules 1 and 2 as attached to the short minutes of order in draft prepared by the Commission being substituted for the schedules referred to in the respondents’ draft short minutes of order).
2. The first respondent whether by itself or by its officers, employees or members be permanently restrained from using undue harassment or coercion in connection with the supply of or possible supply of hold cleaning services to ship owners, ship charterers or their servants or agents.
3. The second respondent be permanently restrained from using undue harassment or coercion in connection with the supply of or possible supply of hold cleaning services to ship owners, ship charterers or their servants or agents.
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 358 of 2000
BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANTAND:
THE MARITIME UNION OF AUSTRALIA
FIRST RESPONDENTDERRICK NEWLYN
SECOND RESPONDENTMICHAEL O'LEARY
THIRD RESPONDENTJAMES BOYLE
FOURTH RESPONDENT
JUDGE:
HILL J
DATE:
21 NOVEMBER 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 5 November 2001, I gave judgment in these proceedings. I stood the matter over to a date to be fixed to hear any submissions the parties might wish to make on the question of the appropriate orders to be made. As a result, the parties have come before me this morning to make submissions.
There was a substantial degree of agreement between the parties as to the appropriate orders to be made. The one matter in dispute between them is whether, as senior counsel for the Australian Competition and Consumer Commission (“the Commission”) submits, I should give injunctive relief against the first and second respondents, restraining them from using undue harassment or coercion in connection with the supply or possible supply of hold cleaning services, or whether I should not grant such injunctive relief as is submitted on behalf of the first and second respondents.
Counsel for the respondents, in general terms, has submitted that the Court should be content with undertakings that have been given, by the first and second respondents, not to engage in conduct which in effect substantially hinders or prevents, or threatens to substantially hinder or prevent, the movement of vessels, inter alia, in trade or commerce between Australia and places outside Australia in contravention of s 45DB of the Trade Practices Act 1974 (Cth) (“the Act”). It is submitted that it is difficult to conceive of conduct that would be in breach of s 60 of the Act which would not fall within the terms of that undertaking.
It is noted that agreement has been reached between the applicant and the first respondent for a compliance program to be implemented which not only relates to offences under s 45DB, but also relates to the contravention of s 60 of the Act.
By way of elaboration of its submissions, counsel for the respondents submitted that no injunction should be granted for four reasons. First it is submitted that the undertakings voluntarily given in respect of s 45DB cover conduct prohibited by s 60. I have already referred to that matter. Secondly, it is submitted that the compliance program to be implemented by consent also includes matters under s 60 flowing from my judgment. I have already referred to that.
The third submission is that s 60 is a criminal provision. It is said that while the Court has power to grant an injunction restraining contravention of a criminal provision, the Court should be reluctant to do so because the potential for contempt proceedings to be brought involves, in essence, a second layer of potential penalty in circumstances where Parliament has already specified the consequences of the offence: see Gouriet v Union of Post Office Workers [1978] AC 435 at 481. Finally it is submitted that the offences in question occurred some time ago and there is no evidence of any threat of repetition.
Although it is probable that an offence of the present kind (a breach of s 60) would also involve contravention of s 45DB of the Act, it cannot logically be said that the two sections are such that contravention of s 60 necessarily would involve contravention of s 45DB. I do not think that there is any onus on the Commission to come up with examples of cases which would potentially fall within s 60 but not within s 45DB. It suffices in my view that there is a possibility that circumstances involving contravention of s 60 would not involve contravention of s 45DB.
In relation to the second matter, while it is relevant that a compliance program has been agreed to, I do not think that, on its own, is a submission which should be accepted as a reason why no injunction should be granted.
The third matter is more substantial. For the first and second respondents it is accepted that the Act permits injunctions to be granted, notwithstanding that the contravention restrained is in fact contravention of a provision which imposes a criminal penalty. Ultimately, the matter is one for exercise of judicial discretion. However, the conduct in fact engaged in by the first and second respondents is conduct which is serious indeed and in my view, subject to the fourth matter, warrants the grant of injunctive relief notwithstanding that, if it were repeated, it would be possible for the Commission to prosecute for breach of the Act.
The final matter is of some importance. It is obvious that while the Court may grant injunctive relief notwithstanding that there is no threat that there will be breaches of the relevant section in the future, if the Court was satisfied that it was highly unlikely or even unlikely that the conduct would not be repeated this is a matter that would weigh heavily in deciding how that discretion should be exercised.
As I understand the sequence of events, the last event involving a contravention of s 60 occurred around March of 1999. The present proceedings were instituted in approximately April 2000. In the meantime, of course, the Commission became involved in the matter and certainly it is not the case that a year elapsed between the last contravention and the involvement of the Commission. No doubt it would be highly unlikely that the first and second respondents would have embarked upon conduct potentially in breach of s 60 while the present proceedings were on foot or were being investigated by the Commission. This tends rather to diminish the force of the submission that the offences occurred some time ago without evidence or any threat of repetition.
In considering whether or not to grant an injunction, I weigh against giving the injunction the fact that at least some time has elapsed since the last contravention of s 60. The fact that the conduct in question was conduct which had been long standing in the waterfront industry and had been a matter of which I think it can be said that strong views were held on the part of members of the Maritime Union of Australia, not as to what constituted an offence but as to the need for action to be taken to avoid ship owners or charterers cleaning their holds other than in Australian ports with Australian labour, is also a relevant matter to consider.
Having regard to the seriousness of the conduct (and it must be emphasised that conduct which involves undue harassment or coercion is serious conduct indeed), the risk of repetition should not, as senior counsel for the Commission submitted, leave risk lying with the public. Ultimately, it is the public interest which the Commission represents and which must be protected. In the circumstances, I am of the view, notwithstanding the submissions that have been made on behalf of the first and second respondents, that injunctive relief should be granted.
I will make the orders that are set out in the draft short minutes of order prepared by the respondents which I have marked “A” and to which I have made changes in accordance with matters that have been agreed between the parties. I will also substitute schedules 1 and 2 as attached to the short minutes of order in draft prepared by the Commission for the schedules referred to in the respondents’ draft short minutes of order. In addition to those orders, I would make the orders which are numbered 15 and 16 respectively in the draft short minutes of order prepared by the Commission which I have marked “B”.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill. Associate:
Dated: 14 December 2001
Counsel for the Applicant: D M Yates SC Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: W L Friend Solicitor for the Respondent: Maurice Blackburn Cashman Date of Hearing: 21 November 2001 Date of Judgment: 21 November 2001
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