Braverus Maritime Inc v Port Kembla Port Corporation & Anor

Braverus Maritime Inc (the applicant) sought to restrain the Port Kembla Port Corporation (the first respondent) and the Maritime Union of Australia (the second respondent) from taking certain industrial action. The applicant, a shipowner, alleged that the proposed industrial action by the Port Corporation, which involved refusing to allow vessels to berth or unberth unless certain conditions were met, constituted an unlawful secondary boycott under section 45D of the *Trade Practices Act 1974* (Cth). The applicant sought an interlocutory injunction to prevent this action.

The central legal issue before the High Court was whether the Port Corporation's threatened conduct, in refusing to provide port services to vessels unless the applicant complied with demands related to its industrial dispute with the Maritime Union, was capable of constituting a contravention of section 45D of the *Trade Practices Act 1974*. This required the Court to consider the scope of "engaging in boycotts" and "inducing or encouraging" such boycotts, particularly in the context of a statutory corporation performing its statutory functions.

The High Court, in a joint judgment, found that the Port Corporation's actions did not fall within the prohibition of section 45D. Their Honours reasoned that the Port Corporation was not engaging in a boycott in the sense contemplated by the section, nor was it inducing or encouraging others to do so. Instead, the Port Corporation was exercising its statutory powers and performing its statutory duties in relation to the operation of the port. The Court distinguished between a genuine refusal to provide services as part of a boycott and a refusal based on the exercise of statutory authority, even if that exercise was influenced by an industrial dispute. The Court emphasised that the section was aimed at conduct designed to harm a third party through a secondary boycott, not at the exercise of statutory powers by a port authority in managing its operations.

Consequently, the High Court dismissed the application for an interlocutory injunction.