Co-Operative Bulk Handling Ltd v Waterside Workers Federation of Australia

[1983] FCA 307

Re: CO-OPERATIVE BULK HANDLING LIMITED
And: WATERSIDE WORKERS' FEDERATION OF AUSTRALIA, NORMAN DOCKER, TASNOR IVAN
BULL, R. INKSTER, F.W.T. STEWART AND P. WINCHBUIST
No. G279 of 1983
Trade Practices
5 IR 211

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.

CATCHWORDS

Trade Practices - Restrictive trade practices - Refusal by Waterside Workers Federation to handle grain in the custody of applicant - Whether secondary boycott - Whether s. 45D Trade Practices Act could apply to industrial arena.

Interlocutory Injunction - Principles in Beecham Group Ltd. v. Bristol Laboratories Pty. Ltd. (1968) 118 C.L.R. 618 and in American Cyanamid Co. v. Ethecon Ltd. (1975) A.C. 396 compared-principles to be applied examined - Injunction granted.

Trade Practices Act, 1974 ss. 45D, 80.

Bulk Handling Act, 1976 (W.A.), s. 18.

HEARING

SYDNEY

#DATE 28:9:1983

ORDER

1. That upon the applicant, by its counsel, giving the usual undertaking as to damages, the respondents, Waterside Workers' Federation of Australia, Norman Docker, F.W.T. Stewart and P. Winchbuist, be restrained, until the hearing of this proceeding or further order, from engaging in conduct in concert with any person that hinders or prevents the acquisition of services by the Australian Wheat Board from the applicant, being the loading of bulk grain for the said Board, into any ship at the ports of Esperance or Geraldton in the State of Western Australia, where such conduct is engaged in for the purpose of, and would have or be likely to have the effect of, causing substantial loss or damage to the business of the applicant.

2. That liberty be reserved to any party to apply on two days' notice to terminate or vary these orders, or generally.

3. That the costs of all parties be costs in the proceeding.

JUDGE1

Co-operative Bulk Handling Limited ("the applicant") seeks to restrain the Waterside Workers' Federation of Australia and five of its officers ("the respondents") from engaging in conduct that is alleged to hinder or prevent the acquisition of services by the Australian Wheat Board ("the Board") from the applicant, namely, the loading of wheat for the Board into ships from the applicant's terminals at the ports of Esperance and Geraldton in Western Australia.

This conduct is said to be engaged in for the purpose of, and to have or be likely to have the effect of, causing substantial loss or damage to the applicant's business and is, therefore, said to be in contravention of s. 45D of the Trade Practices Act 1974.

On Thursday last I declined to grant an ex parte injunction restraining the respondents from engaging in the impugned conduct, but I gave leave to serve short notice of an application for interlocutory relief returnable on Monday of this week. This application came before me on that date when interlocutory injunctions were sought by the applicant.

Most of the evidence was given on affidavit, but some oral evidence was given by Mr Norman Docker, the General Secretary of the Waterside Workers' Federation of Australia ("the Federation") who is also the second respondent, and by Mr Lynn Birch, who is presently the Acting Chief Operations Superintendent of the applicant. No challenge was made by any party to the veracity or reliability of either witness.

There is no dispute about the facts for the purpose of this interlocutory application.

The applicant is a company incorporated under the provisions of the Companies Act, 1893 (W.A.) and deemed to be registered under the Companies Co-operative Act, 1943 (W.A.). It is authorised to receive wheat on behalf of the Board under s. 13 of the Wheat Marketing Act 1979 (Cth.) and to receive such remuneration as is agreed under s. 55 of that Act. The Board is a body corporate pursuant to the Wheat Marketing Act 1979, having the powers and functions set out therein.

The applicant, by contract with the Board, collects grain from various inland terminals in Western Australia, transports it to seaboard terminals and there loads it in bulk into ships. It also operates shipping terminals in Western Australia, including terminals at Kwinana, Geraldton and Esperance.

Section 18 of the Bulk Handling Act, 1967 (W.A.) provides that, when it handles grain, the applicant acts as custodian for reward and that at no stage does it acquire any proprietary right or interest in the grain.

On 31 December 1979 the applicant and the Board entered into a written agreement regulating various matters concerning their business relationship, including the remuneration to be paid by the Board to the applicant. However, the time allowed for the loading of grain onto any ship has not been made the subject of an agreement between the applicant and the Board. That is a matter calculated by reference to a formula under the relevant charter party between the Board and the particular ship owner or charterer. The Board itself is then obliged to pay demurrage or entitled to receive despatch to or from, as the case may be, the owner or charterer. Those expenses or benefits are then passed on by the Board, by way of adjustment to the remuneration payable by it to the applicant, pursuant to the agreement between them of 31 December 1979. The effect is that demurrage is ultimately payable by, and despatch ultimately receivable by, the applicant.

The manner in which the applicant carries on the activity of receiving, transporting and despatching bulk grain may be summarised thus. The grain is received by the applicant from growers. This may take place either at inland locations or at seaboard terminals. In the case of grain received inland, it is then transported to the seaboard terminals by rail or road where it is put into position for export or for local sale. In the case of grain for export, it is transferred by a series of conveyors and elevators, cleaned and weighed, and eventually conveyed onto the loading gantries at the jetties. The loading gantries have movable discharge spouts. As the grain is being loaded, the spouts are moved about in order to ensure an even distribution of grain in the ship's hold. At Esperance the mechanical adjustment of the gantry is done by registered waterside workers employed by stevedoring companies. At Geraldton the discharge spout itself is moved by mechanical means through an arc, and this task is done by registered waterside workers employed by stevedoring companies on board the vessel.

The Federation is an organisation of employees registered pursuant to the Conciliation and Arbitration Act 1904. The second respondent, Norman Docker is, as I have said, the General Secretary of the Federation. The third respondent, Tasnor Ivan Bull is the Federal Assistant General Secretary of the Federation. The fourth respondent, R. Inkster, is the Secretary of the Fremantle sub-branch of the Federation. The fifth respondent, F.W.T. Stewart, is the Secretary of the Esperance sub-branch of the Federation. The last respondent, P. Winchbuist, is Secretary of the Federation's Geraldton sub-branch.

On 4 September 1981 a full bench of the Australian Conciliation and Arbitration Commission gave a decision that enabled the Federation to secure an award to cover the applicant's employees at its Kwinana terminal having the function of plant operators. This had the effect of making the Federation the appropriate organisation to represent the plant operators employed by the applicant at Kwinana.

Subsequent to that decision being made discussions took place between representatives of the applicant and the Federation on several occasions. Those discussions were concerned with the terms and conditions of employment to be embodied in an agreement or award under the Conciliation and Arbitration Act 1904. As a result of those discussions a wage increase of approximately $39 was awarded to the plant operators and some agreement was reached concerning the contents of any agreement or award to cover them. Representatives of the applicant and the Federation met in December 1982 and January 1983 when the representatives of the Federation sought increases above the sum of $39. This was resisted by the applicant. Industrial action by members of the Federation ensued, consisting of a series of strikes by the plant operators at Kwinana. The strikes commenced on 6 January 1983 and continued thereafter on a regular basis until 31 January 1983.

The matter of the claim for further increases was referred to a Full Bench of the Commission and was heard on 17 February 1983. In its decision, handed down on 4 March 1983, the Commission refused to award any further increase.

On or about 9 August 1983 the Federation sought a meeting with representatives of the applicant. In the result, a meeting took place in Perth on 23 August at which the Federation made certain claims in respect of wages and a number of other matters.

In support of those claims a strike by the plant operators at Kwinana took place on 24 August. A meeting between representatives of the applicant and the Federation took place in Perth on 2 September in which certain matters were agreed. A number of other matters however, including the claim as to increases, remained in issue.

The applicant's employees employed at its Kwinana plant stopped work at various times on 2 and 5 September. Further stoppages by the plant operators took place on 6, 8, 9, 13 and 14 September.

The Industrial Registrar of the Commission was informed by the applicant of each strike and stoppage.

On 15 September as each of the plant operators at Kwinana collected his pay, he was handed a letter dated 14 September 1983 from the applicant. The letter required the plant operators to provide a written assurance prior to 3.30 p.m. on 16 September that they would work in accordance with the directions of the applicant and would not take part in strikes or unauthorised stoppages. The letter informed them that the absence of such an assurance on the part of any of the plant operators would result in that plant operator not being paid as from 7:30 a.m. on 19 September.

On 16 September the Federation informed the applicant by telex that it denied the applicant's right to demand such an assurance from the plant operators and informed the applicant that the Federation had advised its members at Kwinana to that effect.

Thereafter discussions took place between the applicant and the Federation relating to the resumption of normal work. Stoppages of work by the plant operators at Kwinana occurred on 16 and 19 September 1983. On 19 September, commencing at 7:30 a.m., a stop-work meeting was held by the Federation at which the plant operators were spoken to by two representatives of the Federation.

On 19 September at 7:50 a.m. those two representatives and three of the plant operators met with the applicant's terminal superintendent, its personnel and industrial manager and its industrial officer. The Federation's representatives and the plant operators indicated to the representatives of the applicant the desire of the plant operators to commence work, whereupon there was read to the Federation's representatives the contents of a telex of 16 September and they were given a copy of it by the applicant's representatives. They were asked for some assurance that if work commenced it would continue normally without interruption or stoppages of the kind that had been occurring. Further, they were told that if such assurances were not given no payment would be made to the employees. Work did not resume.

On 19 September at about 12 noon the General Manager of the applicant sent a telex to the respondent Norman Docker informing him that in the absence of any assurance from the Federation that the stoppages were at an end and, in light of the stoppage that commenced at 7:30 a.m. on 19 September, the applicant felt it necessary to insist upon the provision of written assurances from its employees.

On 19 September at about 1:30 p.m. each of the plant operators at Kwinana was handed a letter dated 19 September informing him that, as no written assurances had been provided by him or by the Federation to the effect that industrial action had ceased, the applicant was compelled to insist upon the provision of written assurances by individual employees. The plant operators were informed that work was not required and payment would not be made for work which had in fact been performed. Work at Kwinana has not resumed since then.

Again on 19 September, at about 2:55 p.m., members of the Federation commenced to picket the two entrances to the shipping dock at the applicant's Kwinana terminal.

On 19 September a telex was sent by the respondent Norman Docker to the applicant stating amongst other things:

"For you to describe the lock out this morning as a strike, calls into serious question CBH's credibility. Furthermore, for the first time you now demand assurances from the Federation which neither the Federation nor any other genuine trade union could possibly give. Our federal council has condemned your actions this morning as a gross breach of faith and as indicating an attitude to industrial relations reminiscent of the 18th century. Under these circumstances the Federation is obliged to support its grain handler members and has little alternative than to advise its members in the other grain ports to refuse to handle CBH wheat."

At Geraldton since the beginning of work on Tuesday 20 September waterside workers employed by the relevant stevedoring company have refused to load ships with grain from the applicant's terminal. To date this refusal has affected three vessels.

The vessel "Graceous" commenced loading grain at Geraldton at 8:30 a.m. on 14 September. The allowable period before demurrage commenced was ten working days, expiring at 8:30 a.m. on 28 September. With no stoppages the applicant anticipated completion of loading on the evening of Tuesday 20 September. For that vessel the despatch rate is $1500 per day and the demurrage rate $3000 per day.

The vessel "Golden Star" was ready to commence loading at 11:25 a.m. on 15 September and under the relevant formula this means that the allowable loading period would commence from 11:25 a.m. on 16 September. That period would have expired at 7:25 p.m. on 23 September. The despatch rate is $1400 per day and the demurrage rate $2800 per day. With no stoppages the "Golden Star" would have completed loading about one day and eight hours before the expiry of the allowable period which would have meant an amount of despatch of about $1850. That vessel is now on demurrage at a cost to the applicant of $2800 per day.

The vessel "Cape Finestre" was ready to commence loading at 4:15 p.m. on 22 September and this, under the applicable formula, meant that the period would commence to run as from 4:15 p.m. on 23 September. That vessel will go on to demurrage at 2:00 p.m. on 5 October. For that vessel the despatch rate is $1750 per day and the demurrage rate $3500 per day.

At Esperance the applicant is the only bulk grain handling authority which loads vessels. On Tuesday 20 September there was no ship being loaded. However, the respondent Mr F.W.T. Stewart told a Captain Charles Braid from Mercantile Stevedoring Company (W.A.) Pty. Ltd. that he (Mr Stewart) had instructions from his federal council not to load grain vessels with wheat in the custody of the applicant at Esperance.

At 4:15 p.m. on 21 September the vessel "Iran Esalmi" was ready to commence loading at Esperance, so that, under the relevant formula, the allowable loading period commenced at 4:15 p.m. on 22 September. That period will expire on 4 October. Not all of the grain to be loaded onto that vessel would be from Esperance. A part of the load was to have been taken on subsequently at Kwinana. The despatch and demurrage cannot be calculated until the loading at Kwinana has been completed. The despatch rate is $4000 per day and demurrage $8000 per day.

On Friday 23 September another ship was ready to commence loading grain from the applicant's terminal. The registered waterside workers who were to work on that ship refused to do so.

It seems that the system of employment in the ports of Geraldton and Esperance is, in the words of Mr Docker when giving evidence in chief:

"..of a sporadic nature and so the men are not required to present themselves daily for work, but if there is a necessity for them so to do, then advice is given by a radio call in both ports and in Esperance by a notice being placed in a prominent position in the town. I am not sure what the equivalent of that is in Geraldton. That advises men that there will be a pick-up of labour the next day. They attend in both ports, I think, at a quarter to eight in the morning at a central pick-up place which is on or near the waterfront. The allocator will allocate men to a particular employer off a roster.

Q. And who pays the man for working for that employer?

A. When a man works for an employer he is paid by that employer, who is an operating stevedore. In the case I mentioned, the time of employment or time of duty will not commence until the man reports at the place of work as directed.

Q. So he gets paid from when he presents himself on the ship or at the dockside for work?

A. Yes."

It is in those circumstances that the applicant seeks interlocutory relief against the respondents.

The approach to be adopted by Australian courts in considering applications for interlocutory injunctions has been discussed in many cases. The English and Australian courts have not approached the question in precisely the same way. The general approach adopted in Australia appears from the judgment of the High Court in Beecham Group Ltd v. Bristol Laboratories Pty. Ltd (1968) 118 C.L.R. 618 (at pp. 622 and 623). The view taken by the House of Lords is to be found in American Cyanamid Co. v. Ethicon Ltd (1975) A.C. 396.

Judges of Australian courts have applied the principles expounded by the High Court in Beecham's Case, not in markedly different ways, but with varying degrees of emphasis. These variations in approach reflect the difficulty of applying too rigidly the principles enunciated in that case and the greater flexibility inherent in the views adopted by the House of Lords in the American Cyanamid Case. In Australian Coarse Grain Pool Pty. Ltd v. Barley Marketing Board of Queensland (1982) 46 A.L.R. 398, Gibbs C.J. said (at p. 398):- "It seems to me, notwithstanding what was said in Beecham Group Ltd v. Bristol Laboratories Pty Ltd (1968) 118 CLR 618; (1968) ALR 469, that the proper approach, in considering whether an interlocutory injunction should be granted, is first to inquire whether there is a serious question to be tried, and then to determine the matter on the balance of convenience. In other words, I incline to the view taken by the House of Lords in American Cyanamid Co v. Ethicon Ltd (1975) AC 396; (1975) 1 All ER 504, rather than to some of those expressed obiter in Beecham's case; the latter case was one in which a substantial issue arose as to the validity of a patent, and the remarks in the judgment may be restricted to such cases."

I share the views of the Chief Justice on this question. In my opinion the approach of the House of Lords in the American Cyanamid Case recognises more realistically the practical problems that confront a trial judge today when hearing applications for interlocutory injunctions. The differences in approach are not, however, particularly marked. Indeed, in some judgments of australian courts the interpretation and application of the views expressed in Beecham's Case elide any distinctions between the two approaches to the point where they appear to be merely differences in verbiage. Nothing turns on those differences in the present case. My conclusions would be the same whichever approach is adopted. It is probably for the High Court to resolve any question of divergence between the Australian and English courts on this matter. I am content to apply the principles of Beecham's Case as expounded by the Full Court of this Court in Transport Workers Union of Australia v. Leon Laidely Pty. Ltd (1980) 28 A.L.R. 589. Bowen C.J. said (at p. 593):-

". . the court does not undertake a preliminary trial and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case. It looks to see whether the applicant for the injunction has made out a prima facie case, in the sense that if the evidence remains as it is, there is a probability that at the trial of the action, the applicant will be held entitled to relief."

Deane J. said (at pp. 599 and 600):-

"The general approach to be adopted by an Australian court in determining whether a prima facie case has been made out in an application for an interim injunction where, as in the present case, both sides have gone into evidence, appears from the judgment of the High Court (Kitto, Taylor, Menzies and Owen JJ) in Beecham Group Ltd v. Bristol Laboratories Pty Ltd (1968) 118 CLR 618; (1968) ALR 469. Their Honours said (CLR at 622-3; ALR at 471): ". . . the court does not undertake a preliminary trial, and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case. James LJ explained the general attitude of the court when he said in Plimpton v. Spiller (1876) 4 Ch D 286 at 289, in relation to a patent action where there was no outstanding issue as to validity: '. . . the court, not forming an opinion very strongly either one way or the other whether there is an infringement or not, but considering it as a fairly open question to be determined at the hearing, and not to be prejudiced by any observation in the first instance, reserves the question of infringement as one which will have to be tried at the hearing, and which it will then have to consider.' And he proceeded to discuss what was the best mode of keeping things in statu quo: '. . . for that' - he said - 'is what the court has to do - to keep things in statu quo - until the final decision of the question.'"

. . .

"As appears from the above extract from the judgment in Beecham's Case, supra, the court is not, on an application for an interim injunction, concerned to "undertake a preliminary trial" or to make "a forecast as to the ultimate result of the case". In this regard, I am of the view that, when read in context, the reference to "a probability" of success in an earlier part of their Honours' judgment was not intended, in conflict with the passage cited above, to indicate that a court dealing with an application for interim relief is required to make a forecast of the applicant's odds of ultimate success to determine whether, to use the phrase used by Lord Hodson in Koufos v. Czarnikow Ltd (1969) 1 AC 350 at 410, the applicant has "an odds-on chance" of success. The reference to "a probability" is to a real or significant chance in the sense that, in the words of James LJ which their Honours quoted with approval, the relevant question is "a fairly open question to be determined at the hearing" (see, generally, per Bowen CJ, Commercial Bank of Australia Ltd v. Insurance Brokers Association of Australia (1977) 16 ALR 161 at 168, per Brennan J; Victorian Egg Marketing Board v. Parkwood Eggs Pty Ltd (1978) 20 ALR 129 at 146; 33 FLR 294 at 312, and, as to the meaning of the word "probable", Eggleston: Evidence, Proof and Probability, 1978, p 10ff). So understood, there would appear to be little practical difference between their Honours' reference to "a probability" of success which has been repeated in subsequent cases in the High Court; see, in particular, Ashburton Oil (NL) v. Alpha Minerals (NL) (1971) 123 CLR 614 at 641-2) and the test subsequently enunciated in the speech of Lord Diplock in the House of Lords in American Cyanamid Co v. Ethicon Ltd (1975) AC 396; (1975) 1 All ER 504 (but cf per Mason J, Administrative and Clerical Officers Association v. Commonwealth (1979) 26 ALR 497 at 502; 53 ALJR 588 at 591)."

It is important to remember that I am not deciding any issue in this case finally. Any views which I express are for the purpose only of deciding the application for interlocutory relief. At the final hearing different rules apply to determine the admissibility of evidence and the evidence itself may be different from the evidence before me at this interlocutory stage.

The relations between the applicant and the Federation at Kwinana are not happy. Faced with what is, in effect, a lockout by the applicant at Kwinana, the Federation decided to retaliate by advising its members at other grain ports, including Geraldton and Esperance to refuse to handle wheat in the custody of the applicant. Members of the Federation at Geraldton and Esperance were in fact so advised by the Federation. The advice was transmitted through the branch secretaries in those two ports, namely, the fifth respondent Stewart and the sixth respondent Winchbuist. Mr Docker gave the following evidence before me: "Q. When you say refused to handle CBH wheat, exactly how would that refusal be implemented, or how did you intend it to be implemented, within the pick-up system you have described?

A. Simply that the men would not offer for work on vessels handling that cargo.

Q. Does that mean that you envisage them going down to the allocation point where the AEWL chap was and waiting for the ship's name to be read out, and then refusing to attend?

A. All the men on the register in those ports are required to attend when there is a pick-up of labour being held, even if there are only three, as, for example, I gather was the case in Esperance last Friday; only three men were required to actually work. All the men, however, were required to attend the pick-up centre. The men who were allocated to the particular stevedore refused to accept that engagement. The rest of the men were paid what is known as attendance money for having attended when there was no work for them.

Q. So the men who were allocated that work, they would have been allocated the work by the AEWL people and then refused to accept that engagement?

A. Yes, they would not have left the pick-up centre to go to the job at all; they would not have accepted the engagement. I understand from - I did manage to make contact with our Esperance secretary this lunch hour - and I understand that is what in fact did happen.

Q. I understand. The Federation took this action against CBH in the other grain ports with a view to placing some pressure on the company in connection with the dispute at Kwinana?

A. Well, I suppose that is one way of putting it. We were faced with what is virtually a lock-out of our grain handler members, of 60 men at Kwinana, the reason being given by the employer that they refused to give assurances that they are not obliged to give. We were faced with 60 of our members in the employ of that company being locked out. We felt there was no reason why we should supply labour to them elsewhere. If they do not want our labour in Kwinana, then why should we supply labour to them in the other ports?

Q. It is a fact, is it not, that your members employed in the terminal by CBH at Kwinana are normal weekly employees?

A. Yes.

Q. It was the Federation's intention, was it not, because of what it saw to be a lock-out at Kwinana, to put some pressure on the company in Geraldton and Esperance?

A. I do not know. I do not think that that is the direction in which this dispute will be solved, so there was no point in saying we would put pressure on them. The company is in a no-win position; it has got nowhere now to go, as a result of its own actions, unless it were to retreat from the lock-out, and I do not think that that company would do that. So I could not see by the actions at Geraldton or Esperance that that would add any pressure to the company, would make it any more likely that the company would concede to our demand that the men should never have been locked out, and put them back to work.

Q. Was it then pure retaliation without any objective of achieving something?

A. No, it was simply, as I put it to you before: if the company does not want our labour in Kwinana to the point of breaching its contract of employment with our members by putting them off pay, by refusing to let them go to work, then why should we supply labour to them in any other ports. That was simply the attitude.

Q. Would you say a kind of tit for tat arrangement?

A. I suppose that is one way of putting it."

In the result members of the Federation have refused, and still are refusing, to work on the shipment of grain on the applicant's terminals at Geraldton and Esperance.

In my opinion the applicant has established a prima facie case that the Federation and the respondents Docker, Stewart and Winchbuist are engaged in conduct that hinders or prevents the Board acquiring services from the applicant, being conduct engaged in for the purpose of, and having or likely to have the effect of causing substantial loss or damage to the business of the applicant.

Perhaps the impugned conduct is being engaged in for more than one purpose, but it is sufficient if it is engaged in for purposes that include the relevant purpose: sub-s. 45D(2). The substantial loss or damage to the business of the applicant is the demurrage payable by it to the Board, and the despatch of which it is deprived.

Counsel for the respondents submitted that s. 45D could not apply to a case of industrial action unless the services of which the moving party for relief is deprived are those of persons who, at the time the offending conduct occurred, are in fact employees of that party or of some other relevant person.

It was said that s. 45D has no application in the present case because the members of the Federation who refused to load grain onto ships at the applicant's terminals at Geraldton and Esperance were not then, or at any relevant time, employees of the applicant or a stevedore. All that the Federation did, so the argument proceeded, was to induce the relevant members of the Federation at those two ports not to take up employment with the relevant stevedore. Reliance was placed upon the judgment of the High Court in Seamens Union of Australia v. Utah Development Company (1978) 144 C.L.R. 120. If this argument is advanced at the final hearing, it may or may not succeed. My view at the present time is however, that it is likely to fail. I see no warrant for construing s. 45D in the manner suggested on behalf of the respondents. Neither the language nor the evident purpose of the section are consonant with that interpretation.

The Seamens Union Case does not appear to me to support the respondents' argument. In that case this Court granted interlocutory injunctions restraining the respondents, who were seamen and members of the Seamens Union, from withholding in concert with any person whatever, his or their labour from J. Fenwick & Co. Pty. Limited or J. Fenwick & Co. (Hay Point) Pty. Limited or both, when and to the extent that such labour was according to the ordinary course of practice required for the purpose of bringing in, berthing or deberthing certain ships or for the purpose of manning certain tugs and the lineboats to enable any of the ships to be brought in, berthed or deberthed at Hay Point, Queensland, where such conduct was engaged in for the purpose and would have had or be likely to have had the effect of causing substantial loss or damage to the coal exporting business of the Utah companies or the A.M.P. Society, except where such conduct was within the description in para. (a) or para (b) of sub-s. 45D(3) of the Trade Practices Act 1974. The orders also restrained all the respondents from aiding, abetting, counselling, procuring, inducing or attempting to induce any person whatever to withhold, in concert with any person whatever, his or their labour from J. Fenwick & Co. (Hay Point) Pty. Limited or both when and to the extent that according to the ordinary course of practice it was required for the purpose of bringing in, berthing or deberthing those ships or for the purpose of manning those tugs or lineboats to enable any of the ships to be brought in, berthed or deberthed at Hay Point, Queensland, where such conduct was engaged in for the purpose and would have had or be likely to have had the effect of causing substantial loss or damage to the coal exporting business of the Utah companies or the A.M.P. Society, except where such conduct was within the description in para. (a) or para. (b) of sub-s. 45D(3).

The respondents to those proceedings then commenced an action in the High Court in which the Seaman's Union was first plaintiff, its secretary second plaintiff and certain seamen, third plaintiffs. The Utah companies and the Society were first, third and fourth defendants, Mitsubishi Development Pty. Limited was second defendant, the Minister for State for Business and Consumer Affairs, fifth defendant, and the State of Queensland, sixth defendant.

In their amended statement of claim, the plaintiffs alleged that the third plaintiffs were employed by J. Fenwick & Co. Pty. Limited upon weekly contracts of employment in manning tugs and lineboats engaged in the berthing and deberthing at Hay Point in Queensland of ships calling at the port to load coal produced by the first four defendants and that those ships sailed under flags of convenience and were crewed by Spanish seamen. It was further alleged that the third plaintiffs had declined since June 1977 to work by refusing to man the tugs and lineboats when those vessels were to be used in berthing and deberthing those ships as a protest against the first defendant's failure to enter negotiations with the first plaintiff concerning the employment of Australian seamen on ships engaged in the coal export trade.

The statement of claim alleged that the first four defendants had made an agreement dated 28 January 1969 with the sixth defendant pursuant to the Central Queensland Coal Associates Agreement Act, 1968 (Qld) relating to the mining and treatment of coal to be produced by the first four defendants from deposits in central Queensland and to the transportation by rail of the coal so produced to Hay Point and to the export of the coal from Australia. It was alleged that pursuant to the agreement the sixth defendant had granted mining leases to the first four defendants which had mined large quantities of coal from the deposits and that the coal so mined had been carried by the sixth defendant on a railway built by the sixth defendant to a harbour at Hay Point constructed by the sixth defendant.

The plaintiffs sued for declarations that the provision of these benefits by the sixth defendant contravened s. 91 of the Constitution and was therefore invalid, and that s. 45D of the Trade Practices Act was not a valid law of the Commonwealth. The defendants demurred to the statement of claim.

I have set out these matters relating to the Seamens Union Case in considerable detail because I think it is necessary to understand what the issues were before the High Court when considering the judgments of their Honours. It was argued in that case that in the regulation of the conduct of persons employed in those activities which form part of overseas trade and commerce, Parliament cannot validly compel persons to take up or continue employment in activities which form part of their trade or commerce. The argument placed emphasis on sub-s. 4(2) of the Trade Practices Act which gives an extended meaning to the words "engaging in conduct" and "conduct".

Gibbs J. said (at pp. 138-139):- "The plaintiffs' attack on the validity of the section was mounted on a narrow front. Their submission was that the effect of s. 45D is to compel persons not already engaged in overseas trade or commerce to take part therein, and that such a law is not one with respect to trade and commerce with other countries. It is unnecessary to consider whether the Parliament might validly conscript persons into service for the purpose of overseas trade and commerce, because as has already been shown s. 45D does not have that effect. The section, whether alone or in conjunction with s. 80, does not prevent a person who is employed in or in connexion with overseas trade or commerce from giving up his employment if his purpose is to seek other work, or go for a holiday, or give up working altogether. It does not prevent a person from refusing to accept employment in overseas trade or commerce if he does not wish to engage in employment of that kind. The section only applies to an employee who refuses to work or refrains from working in the course of or in relation to overseas trade or commerce if he does so in concert with another, and for the purpose of causing substantial injury to a business. Once the true effect of s. 45D(1) (a) in the application given to it by s. 6(2) is understood, that enactment can clearly be seen to be a valid exercise of the power conferred by s. 51(i.): it is designed to forbid a person from acting in the course of, or in relation to, overseas trade or commerce in concert with another for the purpose of causing deliberate injury to a business. It operates directly upon, or is directly related to, overseas trade or commerce. The plaintiffs' challenge is to the validity of s. 45D only in so far as its provisions could be applied to their conduct which has been made the subject of the proceedings in the Federal Court. That challenge fails."

Mason J. said (at pp. 153-154):-

"The plaintiffs submitted that by virtue of this provision a termination by an employee of his employment or a refusal by a person to continue his employment or a refusal to take up employment in activities forming part of overseas trade and commerce constitutes "engaging in conduct" that is prohibited according to the terms of s. 45D(1). This, so the argument proceeds, exceeds the boundaries of the legislative power with respect to trade and commerce between Australia and other countries with the consequence that s. 45D(1) is invalid. In support of, or more accurately, by way of illustration of, this argument the plaintiffs pointed to the interim orders made by the Federal Court. These orders, it was submitted, have the effect of requiring the individual plaintiffs to refrain from giving notice of termination of their employment and of compelling these plaintiffs to remain in the employment of J. Fenwick & Co. Pty. Ltd. or J. Fenwick & Co. (Hay Point) Pty. Ltd. It was contended that a law which authorized the making of such orders was not a law with respect to trade and commerce but a law with respect to employment. As it was expressed this argument suffered from two defects. The first is that the provision contained in s. 4(2), when read in conjunction with s. 45D(1), should not be read as extending the prohibition contained in the latter section to termination of employment, refusal to continue in employment or refusal to take up employment. No doubt the expression "engage in conduct" is apt to inhibit a refusal of services by a person whilst he continues in the relevant employment. But in my view it should not be understood to restrict a person's freedom of choice to remain as an employee or to cease to be an employee. The interim orders should be read in a similar fashion so as to restrain the individual plaintiffs whilst they continue in their employment from engaging in the conduct which has been enjoined. It is not readily to be supposed that his Honour intended to order indefinite continuation of contracts of personal service. So read the interim orders conform with s. 45D(1) and s. 4(2) of the Trade Practices Act. The second defect in the plaintiffs' argument is that even if the Act is to be read as authorizing the making of orders compelling persons to perform contracts of personal service it would not for this reason stand outside the trade and commerce power. It is well accepted that a statute may constitute a law with respect to more than one subject matter or topic. So long as it is a law with respect to a permitted subject matter it is not to the point that it is also a law on a subject matter with respect to which there is no grant of legislative power. A law with respect to overseas trade and commerce is a valid law and it does not cease to be valid because it can also be characterized as a law with respect to employment. There is nothing inherent in employment as a subject matter which takes it outside the reach of a legislative power with respect to trade and commerce between Australia and other countries. In the exercise of that power the Parliament may not only regulate the employment of those whose activities form part of the relevant trade and commerce; in my opinion it may also impose obligations on employers to employ certain persons and it may likewise require employees to continue in their existing employment and to take up new employment in activities which form part of that trade and commerce."

Jacobs J. agreed with Mason J.. Stephen J. agreed with Gibbs J. and Mason J. on this question. Murphy J. said (at p. 157):-

"Parliament is not authorized under the trade and commerce power to introduce or enforce some form of serfdom. The trade and commerce power (s. 51(i.)) is, by the opening words of s. 51, made subject to the Constitution. The Constitution is a framework for a free society. No doubt in some circumstances a law (federal or State) can validly place persons in a role inconsistent with the status of a free person. But these circumstances must be very limited."

Barwick C.J. agreed with the judgments of the other members of the Court on this question.

I have carefully read the judgments in the Seamens Union Case but find nothing in them to support the argument advanced on behalf of the respondents. Those judgments deal with quite different questions from those which arise in this case.

What the applicant complains of is the conduct of the Federation and certain of its officers in using the strength of the Federation itself to suggest to its relevant members at the ports of Geraldton and Esperance that they should not load onto any ship, grain in the custody of the applicant.

If injunctive relief is granted it will not coerce members of the Federation to engage in, or continue in, employment with stevedores. It will not, to use the words of Murphy J. in the Seamens Union Case, "induce or enforce some form of serfdom". The position is rather the opposite. It will leave the Federation's members free to make their own decisions about their work.

I am satisfied that a prima facie case for interlocutory relief has been established against the Federation and against the respondents Docker, Stewart and Winchbuist. Counsel for the applicant conceded that the evidence does not implicate the respondents Bull or Inkster in the alleged contravention of s. 45D.

I turn to the balance of convenience. Subject to one matter, the balance of convenience plainly lies in favour of granting interlocutory injunctions. I mentioned earlier the facts relating to demurrage and despatch and need not repeat them here. If interlocutory relief is refused the applicant will bear demurrage and be deprived of despatch, in each case in substantial sums.

The one matter pressed by counsel for the respondents as operating against the granting of interlocutory injunctions is the fact that the Conciliation and Arbitration Commission will sit in Perth on Tuesday of next week to consider the dispute between the parties. The controversy relating to Geraldton and Esperance is part of a wider dispute between the applicant and the Federation, having its genesis in the terms and conditions of employment of the applicant's employees, being plant operators, at its Kwinana terminal.

I have the impression that the dispute has grown over the last 12 months or so to the point where neither party is prepared to make concessions to the other, lest it lose face. Perhaps the applicant grew weary of industrial stoppages at Kwinana and decided to require the members of the Federation, being plant operators at Kwinana, to give the written assurances that they would work in accordance with the directions of the applicant and would not participate in any industrial activity, without limiting those assurances to the reasonable directions of the applicant and as to time. This may have sparked the present conflict. I do not know. This is for the Commission to consider and deal with.

The present dispute before this Court is part of a wider problem and I would hesitate to invoke this Court's injunctive powers to prevent breaches of s. 45D if the real dispute between the parties would be seriously exacerbated. Sometimes it may be appropriate for this Court to refuse interlocutory relief on this basis, but, after carefully considering the matter, I have come to the conclusion that this is not such a case. The balance of convenience lies in favour of granting interlocutory relief.

The Court makes the following orders:-

1. That upon the applicant, by its counsel, giving the usual undertaking as to damages, the respondents, Waterside Workers' Federation of Australia, Norman Docker, F.W.T. Stewart and P. Winchbuist, be restrained, until the hearing of this proceeding or further order, from engaging in conduct in concert with any person that hinders or prevents the acquisition of services by the Australian Wheat Board from the applicant, being the loading of bulk grain for the said Board, into any ship at the ports of Esperance or Geraldton in the State of Western Australia, where such conduct is engaged in for the purpose of, and would have or be likely to have the effect of, causing substantial loss or damage to the business of the applicant.

2. That liberty be reserved to any party to apply on two days' notice to terminate or vary these orders, or generally.

3. That the costs of all parties be costs in the proceeding.

I have not made any separate orders for the costs of the respondents Bull and Inkster as the same solicitors and counsel have appeared for all respondents. If, however, separate costs have been incurred by those two respondents, I am prepared to hear any argument which they may seek to advance for an order for costs in their favour.