Eastern Basin Pty Ltd v Maritime Union of Australia

[1999] FCA 535

FEDERAL COURT OF AUSTRALIA

Eastern Basin Pty Ltd v Maritime Union of Australia [1999] FCA 535

EASTERN BASIN PTY LIMITED v MARITIME UNION OF AUSTRALIA & JAMES BOYLE

N 226 of 1999

HELY J
30 APRIL 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 226 OF 1999

BETWEEN:

EASTERN BASIN PTY LIMITED
Applicant

AND:

MARITIME UNION OF AUSTRALIA
First Respondent

JAMES BOYLE
Second Respondent

JUDGE:

HELY J

DATE OF ORDER:

30 APRIL 1999

WHERE MADE:

SYDNEY

On the applicant giving the usual undertaking as to damages:

THE COURT ORDERS THAT:

1. (a)Until the hearing and determination of this matter or further order, the respondents be restrained (whether by themselves, their officials, delegates, employees, agents or howsoever otherwise) from directing, procuring, persuading, advising or authorising members of the first respondent to refuse to perform work in connection with the loading or unloading of any ship or vessel which berths or is due to berth at Eastern Basin wharf in the Port of Newcastle provided that the applicant gives the respondents at least 24 hours notice in writing (not including any public holiday or weekends) of the contractual relationships involving the ship or vessel and the applicant.

(b)The respondents do forthwith revoke and cancel any threat, instruction, direction or advice given to any other person to carry out any act of a kind referred to in (a).

2. (a)Subject to the first respondent and/or second respondent being advised (by either the applicant or Patrick Stevedores Holdings Pty Ltd (ACN 060 462 919), in the manner set out in paragraph (b) below) of the names and addresses of those members of the first respondent who are expected to be engaged in the loading or unloading of a ship or vessel referred to in Order 1, the second respondent or an authorised representative of the first respondent will deliver a letter to those members of the first respondent expected to be engaged in the loading or unloading of the ship or vessel.  The said letter will set out the terms of Order 1 and the recommendation in paragraph (c) below, and will be delivered at least 12 hours prior to the shift starting.  A letter shall be sufficiently delivered if handed personally to the employee, or left for him at the notified address.

(b)The advice referred in paragraph 2(a) above shall be in writing and shall be given by either the applicant or Patrick Stevedores Holdings Pty Ltd (ACN 060 462 919) at least 36 hours before the expected starting time for any shift expected to load or unload the ship or vessel.  Save, that if the expected starting time for any shift is on a Sunday, Monday or Tuesday, the written notice shall be given by 9 am on the Friday preceding.

(c)The letter referred to in paragraph 2(a) shall contain a recommendation that each employee performs work in accordance with his or her contract of employment, in relation to the loading and unloading of the ship or vessel.

(d)The second respondent or an authorised representative of the first respondent will attend the amenities shed at Eastern Basin wharf prior to the starting time of each shift and put a copy of the letter in at least three prominent places in the amenities shed, provided access to the shed is not denied to the person in question by the applicant.

3.Liberty to the respondents to apply for a variation of these orders, or any of them, on such notice, if any, as a judge may allow.

4.Costs reserved.

5.        The matter be adjourned to a date to be fixed for further directions.

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 226 OF 1999

BETWEEN:

EASTERN BASIN PTY LIMITED
Applicant

AND:

MARITIME UNION OF AUSTRALIA
First Respondent

JAMES BOYLE
Second Respondent

JUDGE:	HELY J
DATE:	30 APRIL 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 24 March 1999 I gave reasons for judgment on the application for an interlocutory injunction, and made orders in relation to the loading of the “Western Condor” which was due to berth at Eastern Basin on about 25 March 1999.  Order 1 provided:

   “Until the hearing and determination of this matter or further order, the respondents be restrained (whether by themselves, their officials, delegates, employees, agents or howsoever otherwise) from directing, procuring, persuading, advising or authorising members of the MUA to refuse to perform work in connection with the loading of the following ships:

   (a)Western Condor, due to berth at Eastern Basin on or about 25 March 1999;

   (b)Western Hawk, due to berth at Eastern Basin on or around 1 April 1999.”

   Order 4 provided:

   “Liberty to the applicant to bring in short minutes of order extending the operation of Order 1 to other ships due to berth at Eastern Basin, provided that the conduct restrained, if engaged in by the respondents, would constitute a tortious interference with the applicant’s rights.

2. The applicant now seeks orders in terms of the document marked Attachment 1 to these reasons.  During the course of argument some refinement was made to the orders sought to which I will later refer.  The applicant accepted that, except for Order 1(b), the orders now sought go beyond the liberty to apply reserved by my previous order.

3. But interlocutory orders are always subject to change or revision with changing circumstances.  The circumstances in which a court will revoke or vary an interlocutory injunction are referred to in BP Chemicals ANZ Pty Ltd v Manildra Starches Pty Ltd (Federal Court of Australia, 5 November 1997, Finkelstein J, unreported).  The applicant relies upon the events of 25 and 26 March 1999 in relation to the Western Condor, and their cumulative effect upon evidence earlier given, as justifying the wider relief which it now seeks.

   The Western Condor

4. The MV Western Condor berthed at Eastern Basin on 25 March 1999.  Nineteen “Patrick’s” employees were rostered for work in connection with the unloading of the ship, due to commence on the 7 am shift.  Darcy Joass, a union delegate apparently appointed by the men, raised what he claimed to be a safety issue.  That issue was said to be that the Dyke Point Road gate was locked, giving rise to a concern that there was insufficient access for emergency vehicles.

5. That gate was closed on 12 February 1999, after notification to a number of organisations, including the first respondent.  No safety issue was raised when that notification was given nor in the six weeks which have since elapsed.  In that time seven vessels have been worked in the Basin area to which Dyke Point Road gives access without issue or incident relating to the access.  Two of those vessels were worked at Eastern Basin.  Other vessels, with which the applicant had no connection, were worked in the vicinity in the period 24 March to 27 March, when the Dyke Point Road gate was closed, without disruption.

6. In his affidavit of 13 April 1999 Mr Garaty gives a number of reasons why the alleged industrial dispute is said not to be bona fide.  The matters to which he deposes establish, at the level of a prima facie case, or serious question to be tried, that the so-called safety dispute was not bona fide, but manufactured as a cover or excuse for disrupting the unloading of the vessel.

7. After a meeting held in the amenities room shortly after the commencement of the 7 am shift, the Patrick’s employees walked to their cars and drove from the site.

8. A second shift was due to commence work at 3 pm on 25 March 1999, and another shift at 7 am on Friday 26 March 1999.  On each occasion the then Union Delegate appointed by the men raised the issue of payment for the previous shift(s) which had not worked.  On each occasion the employees walked off the job when told that payment for those shifts would not be made because it was considered that there was no genuine industrial dispute.

9. On 26 March 1999, when the morning shift was due to start work, the Patrick’s employees were told by the Newcastle Manager of Patrick’s that:

   “The Patrick position is that you are employees of the company and we want you to work in accordance with your contract of employment ...”

   A number of permanent employees were informed, as they walked off the job, that their employment was terminated.

10. In the result the vessel was not unloaded and sailed for Sydney.

    The involvement of the MUA

11. Letters were sent to the respondents by the applicant’s solicitors at 2.52 pm and 5.25 pm on 25 March 1999 asserting that employees are refusing to work on a manufactured safety issue, and stating an expectation that a senior union official would be present at the commencement of the shift to advise and instruct the employees to work.

12. There is evidence from the Newcastle Manager of Patrick’s, Mr O’Brien, of a conversation with the Union Delegate on the Thursday morning as he was leaving the site:

    “O’Brien:       Where are you going?

    Joass:We took a vote and we’re all going.  This is a safety issue.  I’ve rung Jim Boyle and left a message on his message bank.  You’ll have to ring and deal with him.”

    Thereafter Mr O’Brien attempted to contact Mr Boyle by telephone.  He left a message for him on his message bank.  He spoke to a union official at the MUA Northern NSW Branch and was told that Mr Boyle was not available.  Other messages were left requesting Mr Boyle to contact Mr O’Brien.  Mr O’Brien was informed by a receptionist at the MUA Northern NSW Branch office, that Mr Boyle was in Sydney, on his rostered day off.  But Mr O’Brien had never heard of any MUA official taking a rostered day off.

13. The evidence justifies a conclusion, on a prima facie basis, that there was no-one in the MUA Northern NSW Branch who was available and prepared to deal with the issue which had arisen.  It also justifies a conclusion, on the same basis, that at least some of the men were under the impression that their actions would be approved of by the MUA, and that had the MUA recommended to the men that they should unload the ship, that recommendation would have been effective to secure that end.

14. No proceedings have been instituted against any respondent claiming that the respondents are in contempt for failure to obey the orders made on 24 March 1999.

    The particular orders sought – 1(b)

15. The subject matter of this order is within the liberty to apply reserved by Order 4 of the orders made on 24 March 1999.  There was some reformulation of the order sought as a result of matters which emerged in argument.

16. Essentially two submissions were put by the respondents against the making of such an order.  First, the applicant could apply for an injunction each time a ship was due to berth at Eastern Basin.  It was to avoid the inconvenience and cost of so doing that I made Order 4 on 24 March 1999.  Second, the fact that Patrick’s permanent employees had been terminated means there are no longer contracts of employment between Patrick’s and MUA members which could be the subject of unlawful interference by the MUA.  But the evidence does not warrant a conclusion that all permanent employees have been terminated, and in any event, in a practical sense, those terminated will have to be replaced.  Whether they are replaced by permanent employees, or casual labour, does not matter so far as interference with the applicant’s business by unlawful acts is concerned.

17. An order should be made to the following effect:

    (a)Until the hearing and determination of this matter or further order, the respondents be restrained (whether by themselves, their officials, delegates, employees, agents or howsoever otherwise) from directing, procuring, persuading, advising or authorising members of the first respondent to refuse to perform work in connection with the loading or unloading of any ship or vessel which berths or is due to berth at Eastern Basin wharf in the Port of Newcastle provided that the applicant gives the respondents at least 24 hours notice in writing (not including any public holiday or weekends) of the contractual relationships involving the ship or vessel and the applicant.

    (b)The respondents do forthwith revoke and cancel any threat, instruction, direction or advice given to any other person to carry out any act of a kind referred to in (a).

    The proviso to (a) is intended to give effect to the qualification contained in Order 4 of the orders made on 24 March 1999.  No submission was put by the respondent that it is ineffective or insufficient to achieve that end.

    Order 2

18. An order to this effect was not sought by the applicant at the previous hearing.  It is outside the scope of the liberty to apply which I reserved.  Nothing in the events of 25 and 26 March 1999 provides the occasion for making such an order.  In any event, I question the utility of providing a non-exhaustive definition of an ordinary English expression “refuse to perform work”.  I am not prepared to make the order sought.

    Order 3

19. This has been dealt with in par 17 above, by the proposed Order 1(b).

    Orders 1(a) and (c)

20. Order 1(a) is based on the tort of intimidation.  Order 1(c) is based on the tort of nuisance.  Order 1(a) bears some resemblance to the order originally claimed in par 2(b) and referred to in par 27 of my previous reasons.  Order 1(c) covers similar ground to the order originally claimed in par 2(a) and referred to in par 26 of my previous reasons.  The new evidence does not touch and concern the making of these orders.

    The applicant is really asking me to resile from my previous decision in relation to those orders, and I am not persuaded that it is appropriate that I should do so.

    Orders 4, 5 and 6

21. There are problems associated with the drafting of these orders, which I will put to one side for the moment.  Essentially what is sought is that the respondents should recommend to those of its members who are to be rostered in loading or unloading vessels at Eastern Basin, that they should perform work as normal in relation to the loading and unloading of those vessels.

22. Relief to that effect was not sought when the matter was before me on 24 March 1999; the respondents had offered undertakings to make certain recommendations to MUA members (see par 7 of my previous judgment) which the applicant declined to accept.  This relief is not within the scope of the liberty to apply.

23. The applicant submits that I should infer that the respondents will go to any lengths to prevent the applicant carrying on its business, and that the lines of communication to Mr Boyle were deliberately severed by the respondents, so that the MUA would not be involved in the resolution of the dispute which arose on 25 and 26 March 1999.  The action which then occurred was taken on behalf of the MUA in furtherance of its objective of interfering with the applicant’s business.

24. Alternatively it was put that as Mr Boyle put himself in a position where he could not be contacted for advice by the participants in the dispute on 25 and 26 March, the positive orders sought would simply make it clear that the respondents were complying with the negative restraining orders, and would maximise the prospect that the conduct of which the applicant complains will not continue pending the hearing.  The evidence of Mr O’Brien quoted in par 12 above indicates the pivotal position occupied by Mr Boyle, at least in the perception of the men, or some of them.

25. The relief sought is mandatory in character.  In my earlier judgment I indicated that interlocutory relief which is mandatory in character must be the exception, rather than the rule.  Nor would it be right to proceed upon the basis that the respondents are or may be in contempt by disobeying the orders previously made, if only because no such charge has been levied against them.  If such a charge is to be made, it should be made directly, and in proceedings properly constituted for that purpose.  I do not mean to suggest that such a charge should be made, or that, if made, it would be sustained.  I simply want to make it plain that this is a matter on which I do not express any view.

26. The applicants pointed to National Workforce Pty Ltd v Australian Manufacturing Workers’ Union (1998) 3 VR 265 at 268, Davies and Davies v Nyland and O’Neil (1974) 10 SASR 76 at 95, and Daily Mirror Newspapers Ltd v Gardner [1968] 2 QB 762 at 770 as examples of cases where mandatory orders not dissimilar in substance from those sought here, were made in the context of applications for an interlocutory injunction. In News Group Newspapers Ltd v Society of Graphical & Allied Trades ’82 & Ors(No 2) [1987] ICR 181 at 186C an order was sought by way of interlocutory injunction, that the defendants forthwith instruct members of the first and second defendants not to carry on any of the activities which the defendants had been restrained from carrying on. At p 230G an injunction to this effect was upheld because, although a mandatory order, it was merely supplemental to, and in aid of, the main negative injunction.

27. In Concrete Constructions Pty Ltd v Plumbers & Gasfitters Employees’ Union (1987) 15 FCR 31, Wilcox J, whilst recognising that mandatory orders are rarely made at an interlocutory stage, because the maintenance of the parties rights pending the hearing can usually be accomplished by restraining orders, nonetheless granted a mandatory injunction requiring the Plumbers & Gasfitters Employees’ Union to notify specified people that bans theretofore imposed by the union had been lifted. His Honour did so because the orders were intended to do no more than to make clear that the Plumbers & Gasfitters Employees’ Union is complying with negative orders which it would be usual to make, and because the making of the orders would maximise the prospect that, pending final hearings, the conduct proscribed by s 45D of the Trade Practices Act 1974, which was the subject of complaint in those proceedings, would not continue.

28. Given the prima facie case established by the applicant as to the past conduct of the MUA and its officials referred to in my earlier judgment, and the prima facie case as to the events of 25 and 26 March 1999, it is appropriate, in my judgment that appropriately framed orders should be made that the respondents should recommend to MUA members that they should perform work as normal in relation to the loading and unloading of vessels which berth at Eastern Basin.

29. Relief to that effect, although mandatory in form is, I think, within the principles expounded by Wilcox J.  It is incidental to the negative orders which I have made, and is designed to make it clear that the respondents are complying with those orders.  Members of the MUA should not be under the impression or illusion that the respondents advise or authorise the taking of action such as was taken by the men on 25 and 26 March 1999.  The balance of convenience favours the making of the orders, and the making of them does not involve any prejudgment that those events were brought about by wrongful conduct on the part of the respondents.  Circumstances which have occurred since the last hearing point to the desirability of making orders to that effect in order to maximise the prospect that negative orders which I have made will have their intended effect.

30. The orders contained in pars 4, 5 and 6 of Attachment 1 are, in some respects, oppressively or inappropriately framed.  In an endeavour to meet objections to the form of those orders, counsel for the applicant was given leave, after the conclusion of the hearing, to submit a revised draft.  That draft is Attachment 2.  Counsel for the respondent was given the opportunity of communicating to my associate any further objections which he had to the draft.  No such communication was received.

31. Nonetheless I think that some further minor amendments are called for, and I have incorporated those changes into the orders which I propose to make.  The orders made on 24 March 1999 are spent as to the future.  The orders which I now make are, as to the future, in substitution for those orders.

1. On the applicant giving the usual undertaking as to damages I make orders in terms of the orders of the Court set forth at the beginning of these reasons.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             30 April 1999

Counsel for the Applicant:	J L Trew QC, S J Wood and H Bauer
Solicitor for the Applicant:	Clayton Utz
Counsel for the Respondent:	S Cranshaw SC and P Ginters
Solicitor for the Respondent:	Taylor & Scott
Date of Hearing:	28 April 1999
Date of Judgment:	30 April 1999

ATTACHMENT 1

IN THE FEDERAL COURT OF AUSTRALIA          )
NEW SOUTH WALES DISTRICT REGISTRY        )          No. N226 of 1999

GENERAL DIVISION

BETWEEN

EASTERN BASIN PTY
  LIMITED (ACN 083 102 890)
Applicant
  AND

MARITIME UNION OF
  AUSTRALIA
First Respondent
AND

JAMES BOYLE

Second Respondent

ORDERS

1.Until the hearing and determination of this matter or further order, the Respondents be restrained (whether by their officials, delegates, employees, agents or howsoever otherwise) from interfering with the business of the applicant and in particular by threatening or doing or being a party to any of the following unlawful acts:

(a)informing, suggesting, hinting, implying or threatening persons, firms or companies (with whom the applicant has actual or may enter into contractual relations or does business with) that their cargo, or ships will or might be subject to delays, bans or limitations as a result of the First Respondent’s or its members’ conduct.

(b)directing, procuring, persuading, advising or authorising members of the First Respondent to refuse to perform work in connection with the loading or unloading of any ship or other water-transport mechanism which berths or is due to berth at Eastern Basin wharf in the Port of Newcastle.

(c)directing, procuring, persuading or authorising any person to prevent, attempt to prevent or threaten to prevent the passage of people, goods or services from and to Eastern Basin wharf in the Port of Newcastle.

2.Without limiting the generality of Order 1, a refusal to perform work in connection with the loading and unloading of any ship or other water transport mechanism includes:

(a)a failure or refusal to attend for work;

(b)a failure or refusal to remain at work;

(c)a temporary refusal to perform work, such as attending a stop work or other non-authorised meeting during working hours;  and

(d)a partial refusal to perform work, such as:

(i)a ban, limitation or restriction, whether conditional or otherwise, on the performance of work, or on the acceptance of or offering for work;

(ii)performing work in a manner different from that in which it is customarily performed, the result of which is a restriction or limitation on, or delay in, the performance of work;

(iii)the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or delay in, the performance of work.

3.The Respondents do forthwith revoke and cancel any threat, instruction, direction or advice given to any other person to carry out any act of a kind referred to in Order 1.

4.Subject to the First and/or Second Respondent being advised of those members of the First Respondent who are expected to be engaged in the loading or unloading of a Ship or water transport mechanism referred to in Order 1, the Second Respondent will deliver a letter to those members of the First Respondent expected to be engaged in the loading or unloading.  The said letter will set out the orders and the recommendation in the next paragraph, and will be delivered at least 12 hours prior  to the shift starting.

5.The letter shall contain a recommendation that each employee performs work as normal in relation to the loading and unloading.

6.The Second Defendant will attend the amenities shed at Eastern Basin wharf prior to the starting time of the commencement of each shift and put the letter referred to in paragraph 4 in at least three prominent places in the amenities shed.

7.Liberty to the respondents to apply for a variation of these orders on such notice, if any, as a judge may allow.

ATTACHMENT 2

EASTERN BASIN PTY LIMITED

V
MARITIME UNION OF AUSTRALIA & ANOR

Paragraphs 4, 5 & 6 of Orders Sought
28 April 1999

4)(a)     Subject to the First Respondent and/or Second Respondent being advised (by either the Applicant or Patrick Stevedores Holdings Pty Ltd (ACNB 060 462 919), in the manner set out in paragraph (b) below) of those members of the First Respondent who are expected to be engaged in the loading or unloading of a ship or vessel referred to in Order 1, the Second Respondent or an authorised representative of the First Respondent will deliver a letter to those members of the First Respondent expected to be engaged in the loading or unloading of the ship or vessel.  The said letter will set out the orders and the recommendation in paragraph (5) below, and will be delivered at least 12 hours prior to the shift starting.

(b)The advice referred in paragraph (a) above shall be in writing and shall be given by either the applicant or Patrick Stevedores Holdings Pty Ltd (ACN 060 462 919) at least 36 hours before the expected starting time for any shift expected to load or unload the ship or vessel. Save, that if the expected starting time for any shift is on a Sunday, Monday or Tuesday, the written notice shall be given by 9:00 am on the Friday preceding.

5)The letter referred to in paragraph 4 above shall contain a recommendation that each employee performs work in accordance with his or her contract of employment, in relation to the loading and unloading of the ship or vessel.

6)The Second Respondent or an authorised representative of the First Respondent will attend the amenities shed at Eastern Basin wharf prior to the starting time of each shift and put a letter in at least three prominent places in the amenities shed.