North Broken Hill Ltd (trading as APPM) v Waterside Workers Federation of Australia

[1993] FCA 813

23 February 1994

There has been an error in the 1993 judgments, please not that judgment

813-93 has been changed to 1058-92. Amend your records.

The new 813-93 is attached.

Thank you

Sonia Cornale Records Clerk

813 1 9 3

JUDGMENT NO. .. .mn . . .* ..emea.*****

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IN THE FEDERAL COURT OF AUSTRALIA	)
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VICTORIA DISTRICT REGISTRY	l -. 'W- -2 L . . -.
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GENE= DIVISION i

BETWEEN:  NORTH BROKEN HILL LTD
JTradina as APPMl

(Applicant)

AND:  WATERSIDE WORKERS FEDERATION
OF AUSTRALIA

(Respondent) ~

Coram:	Ryan J
Place:	Melbourne
Date:	13 December 1993

EX TEMPORE REASONS FOR JUDGMENT

Rvan J: There are two motions before the court. The applicant, by its amended statement of claim, alleges causes of action consisting of contravention of s.45D(l)A of the Trade Practices

Act, unlawful interference with the performance of the

applicant's business, interference with a contract between the

conspiracy, and an action on the case in accordance with the	applicant and a shipper to it of a cargo of paper, civil
principles enunciated by the High Court in Beaudesert Shire Council v Smith (1966) 120 CLR 145.
The circumstances out of which the action has arisen included arrangements made by the applicant to have delivered to it at the .
Port of Burnie by the motor vessel, Anthos, a quantity of paper. - ,

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Those arrangements apparently provoked some antagonism from employees of the applicant's paper mill at Burnie, and from

industrial organisations and residents of the town who perceived the applicant's arrangements to import paper as a threat to employment and to the economic health of the region.

Various actions allegedly taken by the respondents, or some of them, in expressing that antagonism have been compendiously referred to in the amended statement of claim as "the unlawful conduct". It is alleged that the unlawful conduct sustains one or more of the causes of action to which I have referred, an element of each of which is the suffering by the applicant of loss and damage.

In response to a request for further and better particulars of that loss and damage, the applicant has indicated that it settled a shipowner's claim for damages for detention of the Anthos in Burnie between 14 and 24 April 1992 for $US120,000. The applicant's liability for those damages is said, in its further and better particulars, to arise under clause 8 of a bill of lading or alternatively, it is said:

an agreement by it with the carrier's agent to be responsible for	"the applicant became liable to pay damages for detention by reason of
detention with respect to the period in the port of Burnie during which the unloading process was delayed by reason of the conduct of the respondents."

The same further and better particulars recite:

"The applicant did incur the following costs by way of administration charges, security service expenses, $61,038.50, cargo surveys expenses, $8,564.80."

The further and better particulars conclude with a claim for $504

which is laconically described as:

"Amount incurred for repair of Marine Board oil boom, $504."

The respondents seek pursuant to 0.29, r.2 of the Rules of this Court, an order that the following questions be tried separately and before any other questions in the proceeding:

(a) What loss and damage, rf any, was suffered by the applicant by reason of any and what delay in the unloading of the paper from the Anthos between 14 Aprrl 1992 and 24 April 1992.

(b) Was the applicant by reason of any and what delay rn the unloading of the paper from the Anthos between 14 Aprrl 1992 and 24 April 1992 liable to pay any and what sum to the carrier pursuant to the bill of ladrng referred to in paragraph 16 of the further amended statement of clarm dated 1 5 March 1993 "the bill of lading".

(C) Was there any and what agreement between the applicant and the carriers agent as alleged in paragraph l(3) of the further and better particulars dated 17 September 1993 "the further and better partrculars" in relatron to the liabrlrty of the applicant for charges with respect of any and what period of delay in unloading the cargo from the Anthos "the agreement".

(d) Was any and what sum paid by the applicant pursuant to the agreement pard by reason of any and what delay Ln the unloading of the paper from the Anthos between 14 April 1992 and 24 April 1992.

(e) Drd the applicant incur any and what amount for security service expenses as alleged in paragraph 1, subparagraph (3) of the further and better particulars.

(f) Did the applicant incur any and what amount for cargo survey expenses as alleged in paragraph 1, subparagraph (3) of the further and better particulars.

Marine Board oil boom as alleged m paragraph D of the further and	(g) Did the applicant incur any and what amount for the repair of a
better particulars.
(h) What caused the applicant to suffer each such item of loss and damage, if any."

0.29, r.2 of the Rules of this Court is in these terms:

"The court may make orders for:

(a) The decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings; and

(b) The statement of a case and the question for decieion."

As Toohey J in TVW Enterprises v Duffy, (unreported 28 March 1985) quoted by French J in Blurton v the Minister for Aboriginal Affairs (1991), 29 FCR 442 at 449 observed:

"0.29 r.2 provides a useful procedure in certain cases though its usefulness depends upon the obtarnrng of answers which are lrkely to make a substantive hearing unnecessary, at least if the questions are answered in a particular way. The decisron ultimately is one for the Court, though naturally it wrll have regard to the attrtude of the

parties . "

In the present case the applicant has strenuously opposed the separate trial of the questions identified by the respondents. Accordingly, I must consider in the exercise of a broad general discretion whether the matters to which the respondents have pointed on balance favour the order of a separate trial. The respondents first contend that on any view the damages recoverable by the applicants will be such that they will be significantly overtopped by the costs of the trial.

Consequently, it is said that the respondents will inevitably be left to bear the difference between the costs recoverable on

taxation and those which it will have to pay for the conduct of	its defence. In my view that consequence, if it is to occur,
cannot necessarily be averted by an order for the separate trials which the respondents seek. It may be that a resolution of the proposed questions, which compels the result that the applicant, if successful on liability, can only recover minimal damages, will induce the applicant to abandon the action. However, that outcome cannot be assumed as a necessary consequence of such a resolution of the preliminary questions if they are, indeed, resolved in that way.
It was secondly contended that a prior resolution of issues of damages by answers to the proposed questions would facilitate the making by the respondents of a payment into Court. However, I consider that any present difficulties which the respondents face in that respect result from the insufficiency of the further and better particulars to which I have referred and particularly from the introduction for the first time of a reference in the alternative to an agreement between the applicant and the carrier or shipowner's agent of which no real particulars have been given. That difficulty may have been exacerbated by incomplete discovery or by an inability to relate the apparently insufficiently particularised claim for damages to documents which have been discovered by the applicants.
I do not believe that an order for separate trial of the questions posed by the respondents is an appropriate remedy for those difficulties. Moreover, it may be doubted whether an effective payment into court without an admission of liability could be made after the court had substantially quantified the
applicant's damages by answering the proposed questions.
It was thirdly submitted that the course proposed by the respondents would conduce to the more efficient use of the Court's resources. The basis of that submission was that a matter of only days would be required to resolve the issues identified by the respondents compared with four weeks estimated by their legal advisers as necessary for the trial of all issues. However, in the absence of some indication of agreement between the parties to reduce the number or narrow the width of some

issues, I am far from persuaded that an overall saving of time
will be achieved.

The resolution of the issues identified by the respondents depends on a complex set of findings of fact and law. It does not, for example, depend on a point of construction of the bill of lading, cf Blurton v the Minister for Aboriginal Affairs at

449. Nor, as I have indicated, will the questions identified by

the respondents, if resolved in one way, be decisive of the litigation. For these reasons, I consider that I should not impose on the Court at this interlocutory stage an obligation to resolve separately some questions which may, on closer examination, prove to be inextricably bound up with other questions going to the remaining issues primarily of damages.

The respondents' motion is therefore refused and I order that the costs of that motion be costs in the cause.

The applicants have sought by their notice of motion:

"(1) That the applicant have leave to file and serve interrogatories

on each of the respondents;

(2) The applicant have leave to issue subpoenas returnable in this Court on a date prior to the date of the trial of this proceeding upon the following parties:

(a) The Commissioner for Pol~ce in the State of Tasmania; (b)

The Burnie Port Authority;
(C) National Stevedores (Tasmania) Pty Limited;

(d) Bulk Chartering Amada (Australia) Pty Limited;

(e) Bowford Shipping Agency Company, a division of P60 Maritime

Services Pty Limited;

(f) P&O Shipping Pty Limited;

(g) Brambles (Australia) Limlted;

(h) North Western Shipping and Towage Company Pty Limited;

(i) The Secretary of the Australian Council of Trade Unions."

The respondents have opposed the making of orders for leave to file and serve interrogatories on the grounds that their defences have been sufficiently specific to appraise the applicant of the case which it has to meet and, secondly, that certain of the draft interrogatories which have been furnished by Counsel for the applicant in support of the application for leave to deliver interrogatories are objectionable as enquiring after intention, knowledge or otherwise the state of mind of the person to whom they are directed.

However, in my view the court should exercise a broad discretion, on an application of this kind, like that indicated by Woodward

J in Aspar Autobarn v Dovala Pty Ltd (1987) 16 FCR 284 and should

grant leave to administer interrogatories generally in conformity with the drafts which have been submitted by Counsel for the applicants, they being the draft interrogatories directed to the

the second respondent, The Seamen's Union of Australia and the	first respondent, The Waterside Workers Federation of Australia,
twelfth respondent, Shane Murphy. I make that order saving all the proper objections which may be taken by the respondents to whom they are directed to answer any of the interrogatories so administered.
Counsel for the respondents also objected to the making of orders for the prior return of subpoenas directed to the persons specified in the notice of motion. That was done again on two principal grounds. The first was that it was not demonstrated and could not be inferred in respect of those proposed third parties who could reasonably be regarded as being in the camp of the applicant, that they would not produce all documents required of them without the compulsion of a subpoena. Secondly, it was said that what was called "general discovery" could be inferred as being required of those and the other third parties who might be inferred to be less favourably disposed to the applicants. However, for reasons similar to those which I have indicated in relation to interrogatories, I consider that it is inappropriate at this stage to assume that the subpoenas will be impermissibly wide or to refuse to make the orders sought on the assumption that objections will be taken to their width by the persons to whom they are addressed.
Questions of cost occasioned by prior return of subpoenas, if that is shown in any respect to be unnecessary or to increase the costs, can be dealt with by the trial judge. Accordingly, I shall make orders on the applicant's notice of motion in the form
appropriate orders. indicated and I would ask Counsel to bring in minutes of [After hearing further submissions his Honour continued] -
In the circumstances and in the light of what has been submitted
I consider that I should order that the respondents' motion on
notice be dismissed with the costs of that motion being costs in the cause. I shall order on the applicant's motion and by way of general directions:
(1) that the respondents file and serve by 22 December 1993 a request for further and better particulars of the loss and damage allegedly sustained by the applicant and referred to in the further and better particulars dated 17 September 1993, (in the applicant's further and better particulars);
(2) that the applicant file and serve by 19 January 1994 a
response to the request referred to in paragraph 1 of this order;
(3) that the applicant file and serve by 28 January 1994 a supplementary affidavit of documents disclosing whether it now has or ever has had in its possession or power any discoverable documents of the kinds described in subparagraphs A and B of paragraph 22 of the affidavit of Melinda Jane Richards affirmed 12 November 1993 which have not already been discovered herein;
(4) that after completion of the steps referred to in paragraphs
1, 2 and 3 of this order, the applicant have leave to file and
serve interrogatories for the examination of such of the
to which the draft interrogatories for the examination of the respondents as it may be advised directed generally to the issues
first, second and twelfth respondents filed herein this day have been directed.
(5) that the respondents file and serve within 28 days of the
filing and service of the interrogatories referred to in paragraph 4 of this order answers to suchinterrogatories, taking any just objections to answering them as each respondent may be advised;

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(6) that after the filing and service of the answers to

interrogatories referred to in paragraph 5 of this order the applicant have leave to serve on such'of the following persons as it may be advised, a subpoena for the production of documents returnable before a judge or registrar of the court on a date to be fixed prior to the date fixed for the trial of the action herein:

[Then would be included in the order a list of the persons to
whom the subpoenaes are to be addressed].

(7) that the costs of all parties of the applicant's motion on notice dated 28 October 1993 and the costs of this day's directions hearing be reserved.

I certify that this and the preceding nine (9) pages are a true copy of the reasons for judgment of his Honour Mr Justice Ryan

Associate:

Date:  + C t l % k

Counsel for applicant:	Dr C Jessup QC with Mr B Mueller
Solicitors for applicant:	Freehill Hollingdale & Page
Counsel for respondent:	Mr J L Dwyer QC with Mr K Bell
Solicitors for respondent:	Holding Redlich