Melbourne Cruisers Pty Ltd v Williamstown Bay & River Cruises Pty Ltd
[2000] VSC 40
•14 February 2000
| SUPREME COURT OF VICTORIA | |
| COMMERCIAL AND EQUITY DIVISION | Not Restricted |
No. 4193 of 2000
| MELBOURNE CRUISERS PTY LIMITED | First Plaintiff |
| - and - | |
| EPICTON PTY LTD | Second Plaintiff |
| V | |
| WILLIAMSTOWN BAY & RIVER CRUISES PTY LTD | First Defendant |
| - and - | |
| ROBERT MARK DAVY | Second Defendant |
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JUDGE: | Byrne J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 February 2000 | |
DATE OF JUDGMENT: | 14 February 2000 | |
CASE MAY BE CITED AS: | Melbourne Cruisers Pty Ltd & Ors v Williamstown Bay & River Cruises Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 40 | |
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Injunction - interlocutory injunction - breach of municipal by-law – whether plaintiff has standing – public interest – discretion.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiffs | Mr M. Dreyfus QC With Mr R. Attiwill | GSM Lawyers |
| For the Defendants | Mr M. Collins | Slater & Gordon |
HIS HONOUR:
The two plaintiffs and the firstnamed defendant operate ferry services from Southgate Wharf in the City of Melbourne. The first plaintiff, Melbourne Cruisers Pty Ltd, holds the lease from Parks Victoria for the mooring of passenger boats from berth number five. This is an exclusive berth in the sense that no other operator may use it. From this berth, Melbourne Cruisers operates a ferry service between Southgate and Melbourne Aquarium and various river cruises. For this purpose it sells tickets to the public from ticket booths, including those at Princes Bridge and at berth number five. The ticket booth is held under a licence also granted by Parks Victoria. Melbourne Cruisers commenced its ferry business with one boat on the Yarra in 1981. It took the lease of berth number five in 1994.
The secondnamed plaintiff, Epicton Pty Ltd, has commenced its business more recently. It was in late 1999 that it purchased the lease of berth number six at Southgate and took an assignment of the licence of the ticket booth at that berth. Berth six is an exclusive mooring with a 27 metre frontage to the east of berth number five. On 26 December 1999, Epicton commenced to operate a ferry service from this berth to Williamstown. It may be that at the same time Melbourne Cruisers also commenced such a service for it made an announcement to this effect in its 12 January 2000 press release.
The firstnamed defendant, Williamstown Bay and River Cruises Pty Ltd, is a competitor of the plaintiffs in as much as it too conducts a ferry service from Southgate to Williamstown. Indeed, it has done so since 1994. It was unsuccessful in its attempt to obtain an exclusive berth at Southgate and has thereafter been obliged to use berth seven, a shared berth, which has a frontage of 35 metres immediately to the east of Epicton's berth. It has no ticket booth on the wharf; it is permitted to sell tickets to passengers only from the ferry itself.
It appears from the affidavits that the competition between the plaintiffs, on the one hand, and Williamstown Bay and River Cruises on the other, has since 26 December been fierce. For example the plaintiffs have, according to the affidavits, painted their ticket booths in the same blue colours as the lower portion of the Williamstown Bay and River Cruises' boats. Moreover, the Epicton ticket booth is located in a position where passengers for the Williamstown Bay and River Cruises ferry must pass by. It has not been suggested that there was anything improper in this, and I make no finding of this. It simply shows a determination by the plaintiffs to capture a share of the market which had previously been enjoyed by Williamstown Bay and River Cruises.
To attempt to express in a neutral way a fact which was hotly contested before me, Williamstown Bay and River Cruises and its director, the secondnamed defendant, Robert Mark Davy, have sought to preserve its market by ensuring that its patrons were not distracted by the plaintiffs' activities. According to a considerable body of evidence tendered on behalf of the plaintiffs, this was done by spruiking, touting for business and by misrepresenting the relative merits of the services provided by the plaintiffs. It was put that this behaviour amounted to a nuisance at common law, to a breach of various provisions of the Melbourne City Council's Activities Local Law 1999, clauses 2.1(a) and (d), 5.2(a) and 5.4, and of the terms of the operating conditions under which Williamstown Bay and River Cruises was entitled by Parks Victoria to use the shared berth.
The affidavits filed on behalf of the defendants deny this. No deponent was cross‑examined and I am unable to determine this conflict. I proceed on the basis that there is a serious issue to be tried as to the plaintiffs' contentions as to the conduct of the defendants, but I am unable to form any view upon the probability of the plaintiffs' version of events prevailing over that the defendants.
Faced with this conduct by Williamstown Bay and River Cruises and its staff, the plaintiffs have sought to arouse some interest in the problem with the two authorities with jurisdiction over the wharves and promenades. I was told by counsel for the plaintiffs that the jurisdiction of the City of Melbourne commences at the high water mark of the river. It was said that where this point was may be a matter of some debate, but that it should not be a matter of concern on this application. The evidence, such as it is, suggests to me otherwise. James Mangopoulos, the solicitor for the plaintiffs in his affidavit of 1 February 2000, deposes to the existence of some uncertainty between the Melbourne City officers and those of Parks Victoria as to the extent of their jurisdiction. The letter from Parks Victoria dated 12 January 2000 (Exhibit JG12), asserts that the steps and upper promenade were the responsibility of the city. Nevertheless, he considered that spruiking on those steps amounted to a breach of licence granted by Parks Victoria. Notwithstanding this, on 28 January 2000, the City of Melbourne wrote to Mr Mangopoulos (Exhibit JM4) indicating that the council had traditionally seen itself as responsible for the upper promenade only. It seems that the extension of this responsibility to the stairs and the lower promenade may not be out of the question. Accepting that this evidence speaks of practice rather than the strict legal position, I nevertheless conclude that it has not been shown to the degree of satisfaction required for an interlocutory application of this kind that the City of Melbourne's authority extends beyond the upper promenade.
The affidavit of James Gantidis, a director of Epicton and the operations manager of both plaintiffs, sworn 1 February 2000, shows that he made many complaints to both Parks Victoria and the City of Melbourne about the conduct of Williamstown Bay and River Cruises and its staff. By letter dated 12 January 2000, the Parks Victoria ranger confirmed that breaches of operating conditions had been observed and said that breach notices had issued. It does not appear that they were issued to Williamstown Bay and River Cruises. The letter does, however, enclose a breach notice addressed to Melbourne Cruisers itself, alleging that one of its staff had on 8 January engaged in the practice of spruiking. The complaints, however, do not seem to have excited any positive response from the Melbourne City Council.
And so, on 1 February 2000, the plaintiffs commenced this proceeding alleging that Williamstown Bay and River Cruises have been guilty of misleading and deceptive conduct inasmuch as Mr Davy had made false statements to the public in disparagement of Melbourne Cruisers and its operations. Second it is alleged that the defendants have committed breaches of the City's Activities Local Law, to which I have referred. Third it is put that the defendants have breached the conditions under which Williamstown Bay and River Cruises is permitted by Parks Victoria to use the common berth. Finally it is put that the defendants have committed a common law nuisance.
On 2 February 2000 the plaintiffs by summons sought, and on 3 February obtained, an interim injunction restraining the defendants from
(a)soliciting, touting or spruiking the first defendant's passenger boat operations and services from the Southgate Wharf, Southgate Promenade or the Southgate Complex;
(b)in any way interfering with the operation of the ticket booths occupied by the plaintiffs at the Southgate Wharf or the sale of tickets by the plaintiffs Southgate Wharf;
(c)in any way harassing employees of the Plaintiffs at ticket booths or boats at the Southgate Wharf.
The order shows that the defendants were represented upon the hearing, but the injunction was a temporary one only, for the summons was adjourned to 10 February when it came on for hearing before me. At the present hearing the only bases relied upon by the plaintiffs for the grant of the interlocutory injunction were the breaches of the Melbourne City's Activities Local Law and common law nuisance.
It was submitted that the plaintiffs have no right to commence a civil proceeding for breach of the municipal by‑law. This submission, which was put in different ways, essentially came down to the question of standing. The plaintiffs contend that they have and will continue to suffer economic loss as a consequence of the breaches by the defendants of the local law. To my mind this is sufficient, at least for present purposes, to overcome the defendant's submission that the application should fail for want of standing: see Batemans Bay Local Aboriginal Land Council v. The Aboriginal Community Benefit Fund Pty Ltd (1997) 194 CLR 247.
An associated submission is more difficult to put to one side. It is that the by‑law in question creates a criminal offence for the protection of the public for which enforcement is provided in Part 13. This part confers on the City in various ways a discretion to enforce compliance by infringement notice or prosecution. The evidence shows that the City has had brought to its attention the matters relied upon by the plaintiffs as constituting breaches of the by‑law, but there is no evidence that it has taken any step to enforce the by‑law or to punish the defendants for any such breaches. I do not know what is the reason for this lack of response. What is significant for present purposes is that the authority whose function and professed objective it is to protect the use of public places and to achieve the other objectives set out in clauses 1.2 of the by‑law, has not done so in this case.
I am not satisfied, even to the standard presently required, that the conduct attributed to the defendants, if proved, has annoyed, molested or obstructed other persons as is prohibited by clause 2.1(d). It does, however, appear that it falls within the prohibitions contained in clauses 5.2(a) and 5.4. But the evidence does not show that this conduct occurred to any great degree, if at all, on the upper promenade. It may be that this is the reason for the failure or hesitance of the City Council to take steps to put a stop to it. I do not know.
The judgments of the High Court in the Batemans Bay case especially at 263 to which I have referred, show that, in modern Australia, questions of standing and the discretion to grant or refuse equitable relief cannot be viewed as discrete steps in an application of this kind. In that case the court was faced with a claim that funds provided for a statutory purpose had been applied in breach of the statute. The court was concerned that judicial scrutiny of such an allegation should not be denied for want of a competent plaintiff. The position here is not quite the same. It is a case where a commercial enterprise alleges a competitor is obtaining a commercial advantage by breaching a law passed to protect the public in its use of public space.
I am not asked to conclude that the plaintiffs' claim is not doomed to failure nor that it is likely to succeed. The question for me is whether there is a sufficient prospect of success and whether the public interest which the plaintiffs assert sufficiently requires that the conduct of the defendants should be curtailed as proposed. To this question my response is in the negative.
The second basis relied upon is the common law nuisance. It is said that the conduct of the defendants constituted a nuisance in the operations of the plaintiffs at Southgate Wharf. I am not satisfied on the material before me that this is a sufficiently strong case that the alleged nuisance had been committed to warrant the interlocutory orders sought.
Furthermore, in what is essentially a commercial contest, I consider that damages are an appropriate relief for the plaintiffs if this cause of action is made out. I am not moved by the plaintiffs' protestations that the quantum of loss will be difficult to prove.
I conclude therefore that the application interlocutory orders should be refused. Paragraph 1 of the order of 3 February 2000 will therefore be discharged.
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