Cleveland Tin Ltd v The Australian Workers Union

[1984] FCA 114

Re: CLEVELAND TIN LIMITED; ABERFOYLE LIMITED
And: THE AUSTRALIAN WORKERS' UNION; THE WATERSIDE WORKERS FEDERATION OF
AUSTRALIA; RAYMOND DEVLIN; LEN EVANS; KEVIN MUNDAY; JAMES RAYNER
VG No. 71 of 1984
Trade practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson J.

CATCHWORDS

Trade practices - secondary boycott - interlocutory injunction - whether prima facie case made out that respondents in concert engaged in conduct hindering trade or commerce between Australia and places outside Australia.

Trade Practices Act 1974 - s.45D

HEARING

MELBOURNE

#DATE 27:4:1984

JUDGE1

1. Application for interlocutory injunctions.

Hereafter I state facts as though found. Of course my function in determining this application is not to reach any concluded finding, but to see whether the applicants have made out "a prima facie case", in the sense in which that expression has been expounded in a number of authorities binding upon me. (See, for example, T.W.U. v. Leon Laidley Pty. Ltd. (1980) 28 A.L.R. 589). To avoid unnecessary repetition I make it clear that all the facts are stated hereafter only in that sense.

2. The first-named applicant (which is hereinafter called "Cleveland") is wholly owned by the second-named applicant. Cleveland owns 48 per centum of the share capital of Que River Mining Pty. Ltd. The rest of that share capital is owned by another company which is wholly owned by Cleveland. Que River Mining Pty. Ltd. has been in dispute with some of its employees, who are members of the first-named respondent (which is hereinafter called "A.W.U.") concerning terms of the employment of those employees. Each of A.W.U. and the second-named respondent is an association of employees registered as an organization under the Conciliation and Arbitration Act 1904. In March 1984 Que River Mining Pty. Ltd. purported to terminate the employment of each of its employees who was a member of A.W.U., employer and employees being in dispute over terms and conditions of employment.

Cleveland mines and processes ore at Luina in Tasmania and exports the tin and copper concentrates which are produced by those operations to other Australian States and to other countries. The concentrate which is the subject of evidence in this application is intended by Cleveland to be exported by ship to buyers in Malaysia under c.i.f. contracts. Payment to Cleveland by the buyers, Datuk Keramat Smelting Sdn. Berhad and Malaysia Smelting Corporation Sdn. Bhd., is not due under the contracts until after the ship has cleared Burnie, which is the port of exportation. In the event of strikes, other differences with workmen, intervention of constituted authorities or any other contingency beyond the control of Cleveland preventing Cleveland from forwarding or shipping the concentrates in the ordinary course of business, shipments may be suspended until such conditions cease to exist, without breach of either of the two contracts for sale of the concentrate.

The applicants allege that each respondent has in concert with each other and with other persons engaged in conduct that hinders or prevents the acquisition of the concentrate by the buyers from Cleveland and which was engaged in for the purpose, and would be likely to have the effect, of causing substantial loss or damage to the business of Cleveland. It is further alleged that the said conduct was engaged in for the purpose, and would be likely to have the effect, of preventing or substantially hindering Cleveland from engaging in trade or commerce between Australia and places outside Australia. The said conduct is alleged thereby to contravene s.45D(1)(b)(i) and s.45D(1A) of the Trade Practices Act 1974 and injunctions are sought to restrain the respondents from continuing to engage in that conduct. An amended statement of claim filed on 16 April 1984 further alleges common law causes of action : interference with contractual relations, intimidation and conspiracy.

3. The third-named respondent is the secretary of an unincorporated association called the Burnie Trades and Labour Council. He is described in an affidavit sworn 6 April 1984 by the applicants' solicitor as holding office as a "Committeeman at the Burnie branch of the second-named respondent", but an exhibit to that affidavit shows "R.T. Devlin" of 50 Bird St. Burnie as the member of the committee. The third-named respondent's affidavit shows him to be Arthur Ray Devlin of 50 Bird St. Montello. A telex message from Mr. Devlin to the chairman of the directors of the second-named respondent on 11 March 1984 was in these terms:

"Burnie Trades and Labour Council Executive today, Sunday 11th March 1984 has placed ban on movement of all tin concentrate from West Coast Transport Depot to wharf until advised by AWU that dispute at Que River has been resolved."

West Coast Transport Pty. Ltd. carries concentrate for Cleveland from Luina to Burnie by road and sometimes stores Cleveland's concentrate at its depot in Burnie until the concentrate is delivered to a Burnie wharf for shipment.

On 22 March 1984 a director of West Coast Transport Pty. Ltd., Jan De Bruyn, was told by Mr. Devlin in substance the following:

"There is a picket line in place at the wharf to stop all Cleveland tin concentrate deliveries. If you try to cart containers through the picket line we will close the wharf. Anyway, even if the picket line misses any delivery of tin, it will not be unloaded by members of the Waterside Workers' Federation working on the wharf."

On 26 March 1984 a container of Cleveland's concentrate was delivered to a wharf at Burnie. Later that day Mr. Devlin said to Mr. De Bruyn in substance:

"You must remove that container that was delivered today or West Coast Transport will be banned from the wharf area. Those two containers that were previously delivered will be stacked in the corner and will stay there."

Another director of West Coast Transport Pty. Ltd., Gijsbert De Bruyn, spoke to Mr. Devlin on a wharf at Burnie on 27 March 1984. De Bruyn said:

"We've done nothing wrong. The picket line was not there when we brought in the container yesterday."

Mr. Devlin replied:

"I told the men on the picket they should have been here instead of going off to lunch."

A manager at Burnie of another cartage contractor, Halmond Palmer Transport, which carried Cleveland's concentrate in a truck on to the wharf at Burnie on 27 March 1984 was told by Mr. Devlin later that day:

"If you do that again you'll be black-banned in the Port of Burnie."

Hammond Palmer Transport acts as a transport agent for C. Piesse & Co. Pty. Ltd., which is the shipping agent in Burnie of Malaysian International Shipping Corporation, the shipper engaged by Cleveland to carry the concentrate from Burnie to Malaysia. If C. Piesse & Co. Pty. Ltd. is not able to receive any particular delivery of Cleveland's concentrate from West Coast Transport Pty. Ltd., the concentrate is commonly stored at a Hammond Palmer Transport yard in Burnie until it is delivered to a wharf.

4. On 28 March 1984 a board was on the bumper bar of a motor vehicle parked on the side of a road giving access to premises at the port of Burnie which are known as the ANL terminal. On the board, in letters legible by those who used the road, were the words:

"Official AWU Picket Line Do Not Cross Ban On Aberfoyle Tin Concentrate."

A truck and attached trailer operated by West Coast Transport Pty. Ltd. and carrying Cleveland's concentrate approached the board and stopped when Mr. Devlin and the sixth-named respondent waved to the driver from a position near the board. The driver of the truck was asked by one of those two, probably by Mr. Rayner in Mr. Devlin's presence, whether the trailer was carrying tin from Luina or from another mine. When the driver replied that he did not know, he was told, probably by Mr. Rayner, that he "had to get out", that the speaker knew the concentrates on the trailer were from Luina and that they would not be unloaded. The driver then drove away from the wharf to the depot in Burnie of West Coast Transport Pty. Ltd.

5. The fourth-named respondent Leonard Kevin Evans is a "paid Organiser" employed in the Tasmanian branch of A.W.U. In an affidavit which, as Mr. Evans deposes therein, he was authorised by A.W.U. to make on its behalf, he also deposes as follows:

"4. THAT to my knowledge, the only Union to have any ban on the movement of the Applicant's tin concentrate is the A.W.U. and in particular, its members which were illegally dismissed by Que River Mining Pty. Ltd. which I believe is owned and controlled by the Second-named Applicant."

6. ANL Cargo Operations Pty. Ltd., which is hereinafter called "ANL", carries on business at the premises called the ANL terminal. It may be inferred, although there is no direct evidence, that ANL was engaged either to load or to supervise loading of cargo on to a ship, "Anro Temasek", which berthed at the ANL terminal at about 9.30 a.m. on 12 April 1984 and left Burnie that night or in the early hours of the next day. An alternative inference is that ANL merely made available for use the terminal and whatever cargo handling equipment might be there. There was evidence that the ship "Anro Temasek" was to carry Cleveland's concentrate to Malaysia. There was no evidence by which to identify the other party to the contract under which ANL would gain remuneration in respect of the loading of the concentrate on to the ship.

7. On 10, 11 and 12 April 1984 a board on which were written the same words as I recorded in respect of 28 March 1984 was displayed near the entrance gates to the ANL terminal. From time to time men who had been employed by Que River Mining Pty. Ltd. were near the sign board. On 10 and 12 April 1984 Mr. Evans was with men near the sign board. Before 9.40 a.m. on 12 April 1984 Mr. Evans and other men spoke to Mr. C. Nalder, who was described in evidence as the terminal superintendent for ANL at the port of Burnie, at the ANL terminal. One of the men told Nalder they would prevent the loading of the ship "Anro Temasek" until they identified the containers of Cleveland's concentrate at the terminal. Mr. Evans said to Nalder that the men with him would place themselves in a line across the loading ramp to stop the loading of the ship. Mr. Nalder then pointed out to Mr. Evans the containers which contained Cleveland's concentrate. During the rest of the day Mr. Evans was from time to time with men standing near the sign board and from time to time he entered the terminal. At about 9.15 p.m. that day men inside the terminal positioned themselves in the way of a fork lift truck which was about to move a container in the terminal. Some of those men were members of A.W.U. and some, perhaps all, were members of A.W.U. who had been working for Que River Mining Pty. Ltd..

No container of Cleveland's concentrate was loaded on to the ship.

8. On 13 and 14 April 1984 men were at the sign board, some of them members of A.W.U. who had worked for Que River Mining Pty. Ltd.. At times Mr. Evans was with them.

On 13 April Cleveland arranged for the transport of the twelve containers of its concentrate which were then at the ANL terminal to another wharf, known as McGaw's Wharf and operated by the Burnie Marine Board, at which a ship, "Bunga Teratai", was to be loaded on 14 April 1984. It does not appear with whom the arrangement was made, nor by whom the 12 containers were to be transported.

At about 11.00 a.m. on 13 April 1984 Mr. Evans and other men were together at the main entrance gates to the ANL terminal. A truck carrying a cargo container from the terminal was stopped at the gate by Mr. Evans and the other men. Some of the men remained standing in front of the truck. About half an hour later police escorted some of these men away from the front of the truck and the rest of the men moved away from the front of the truck, which drove back into the terminal.

On 16 April 1984 Mr. Evans and other persons, some of whom had been employed by Que River Mining Pty. Ltd., were outside the ANL terminal.

9. The fifth-named respondent Kevin Munday is a member of the second-named respondent. He is alleged in the amended statement of claim, but is not proved, to be "a vigilance officer" of the second-named respondent. There is evidence that a "man called Munday", who is not otherwise identified with the fifth-named respondent, spoke to the driver of one of Hammond Palmer Transport's trucks at the ANL terminal on 27 March 1984, when a container of Cleveland's concentrate on the truck was about to be unloaded by a forklift operated by a waterside worker. When the driver admitted in answer to a question that there was tin in the container the "man called Munday" told the forklift operator that the container was not to be unloaded. The forklift then withdrew and the truck returned with the container to the Hammond Palmer Transport depot.

10. On 5 April 1984 the following telex was received by the applicants' solicitor from Mr. N. Docker, who is the general secretary of the second-named respondent:

"I set out below a communication forwarded on the evening of 4 April 1984 to our Burnie Branch.

Quote
Two companies, Cleveland Tin Limited and Aberfoyle Limited, have commenced action in the Federal Court of Australia against the AWU and the Federation and against individuals Devlin, Evans, Munday and Rayner.

The actions are based on the secondary boycott provisions of the Trade Practices Act and, if successful, could ultimately lead to heavy fines on the organisations and the individuals.

Our understanding is that the AWU has an argument with one or more of the applicant companies in one of the local mines.

The Burnie Trades and Labour Council has apparently seen fit to speak on behalf of our Union without our authority.

Our understanding is that containers are being loaded at the mines by AWU labour and transported to the waterfront by TWU labour.

Under these circumstances it is ridiculous that the AWU, the TWU or the Trades and Labour Council should expect our members to 'carry the baby' and involve our organisation and officers in serious penalties.

If the AWU wants the movement of concentrates to be obstructed they should not load them in the first place.

Our understanding is that, to date, our members at Burnie have not been called upon to load the containers nor have they in any way obstructed the receival of the containers.

Therefore, under these circumstances, the Federation directs the Branch that it should not entertain any suggestion of interfering with the process of loading these containers aboard the vessel when called upon to do so.

We suggest that you might show a copy of this letter to the Secretary of the Burnie Trades and Labour Council.
Unquote

As our members have not been involved in any way in impeding the movement of your clients' containers and, in the light of the direction now given to them, we suggest that there is no basis on which we should be joined in your Federal Court action.

We would appreciate your advice that you will make our position clear to the Federal Court and seek to remove us and our member Munday from the list of Respondents.

This would avoid unnecessary attendance at the hearing by us."

There is evidence that Mr. Nalder had said on 14 April 1984 that "the waterside workers have refused to work under police supervision"; and evidence that on 16 April 1984 Mr. Nalder had said that an officer of the Burnie branch of the second-named respondent had informed Nalder that waterside workers "would refuse to cross a picket line".

11. The sixth-named respondent James Rayner is a member of A.W.U. who had been employed by Que River Mining Pty. Ltd.. He is alleged in the amended statement of claim, but is not proved, to have been "a shop steward elected by the members of . . . A.W.U. . . "employed by Que River Mining Pty. Ltd.". In paragraph 4 hereof reference is made to his conduct on 28 March 1984.

12. Cleveland's primary case against the respondents is that each has, in concert with the others, engaged in conduct for the purpose, and having or likely to have the effect, of preventing or substantially hindering Cleveland from engaging in trade or commerce between Australia and places outside Australia, in contravention of s.45D(1A) of the Trade Practices Act 1974. Interlocutory injunctive relief is sought by reference to s.80(2) of the Act.

There is in my opinion on the material before me a prima facie case that each of the first, third, fourth and sixth-named respondents has engaged, in concert with at least one of the others, in conduct of the description proscribed by s.45D(1A), notwithstanding evidence to the contrary by the four natural persons who are respondents.

It was submitted on behalf of the respondents that paragraph (ii) of s.45D(3)(b) comprehends persons whose employment has been terminated by the employer. The submission is no doubt arguable, but I cannot accord it a sufficient prospect of acceptance to displace the prima facie case made. Then it was argued that the employment of the members of A.W.U. who had been working for Que River Mining Pty. Ltd. had not been effectively terminated by that company and that all those persons were therefore within the description contained in s.45D(3)(b)(ii). I cannot give that argument such a prospect of success as would displace the prima facie case.

13. I am not persuaded to find a prima facie case against either the second or the fifth-named respondent of participation, or of any present intention to participate, in contravention of s.45D.

14. The balance of convenience inclines, in my opinion, to the grant of interlocutory relief. The prevention of Cleveland's performance of these contracts is causing it substantial loss. If it should turn out at trial that the enjoined activities of the respondents would not have contravened s.45D, no more than a possibility that those activities might have achieved the objects of those respondents during that period will have been lost by them.

15. The statement of claim was amended on 16 April 1984 to include several common law causes of action against the respondents : interference with Cleveland's contractual relations, intimidation and conspiracy. In my opinion no prima facie case to justify an interlocutory injunction against the second or the fifth-named respondent was made by reference to any of those causes of action. It is unnecessary for present purposes to consider those causes of action against the other respondents, who may be more generally restrained by reference to s.45D than by reference to any of those causes of action.