North Broken Hill Ltd (trading as Associated Pulp and Paper Mills and APPM) v Waterside Workers Federation of Australia

[1993] FCA 150

I50 1

JUDGMENT NO. ...m.m.m*nae --m-

IN THE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIAN DISTRICT REGISTRY	1 No. VG 177 of 1992
1
GENERAL DIVISION	1
B E T W E E N :

NORTH BROKEN HILL LIMITED

(trading as ASSOCIATED PULP AND PAPER MILLS and APPM)

(A.C.N. 004 208 904)

Applicant

and

WATERSIDE WORKERS' FEDERATION OF AUSTRALIA, S-N'S UNION OF AUSTRALIA, THE AUSTRALIAN

INSTITUTE OF MARINE AND POWER ENGINEERS,

MERCHANT SERVICES GUILD OF AUSTRALIA, TRANSPORT WORKERS' UNION OF AUSTRALIA,

CONSTRUCTION, FORESTRY AND MINING EMPLOYEES UNION,

AUSTRALIAN WORKERS' UNION, FEDERATED ENGINE

DRIVERS AND FIREMEN'S ASSOCIATION OF AUSTRATASIA,

PRINTING AND KINDRED INDUSTRIES UNION, METAL AND ENGINEERING WORKERS' UNION, KISNNETH JOHN

BACON, SHAYNE MmJ?HY, DAVID CHARLES McLANE, DAVID PRICE,

RAYMOND GEORGE GRUNDY, MICHAEL GREY, WILLIAM MAURICE

LOWE, SCOTT ANDRh'W McLEAN and JACK WILLIAM GILL

\ 1

JUDGE:	Heerey J
DATE :	11 March 1993
-

24 MAR 1993

PLACE :	Melbourne	AUSTRALIA
PRINCIPAL
In April of 1992 there was a serious industrial dispute at the applicant's plant. A vessel, the MV Anthos, arrived from	There was substantial delay in the unloading of that cargo.	Baton Rouge, Louisiana, with a cargo of paper for the mill.
This proceeding is brought by the applicant claiming damages against the respondents for the loss caused by that delay. The claim is based on s.45D(lA) of the Trade Practices Act 1974 (the Act) and a number of causes of action at common law.
The present application is brought under 0.11 r.16 of the Federal Court Rules seeking to strike out certain specified paragraphs of the amended statement of claim on the grounds that they disclose no reasonable cause of action or have a tendency to cause prejudice, embarrassment or delay in the proceedings.
A defence has not yet been filed but a request for further and better particulars has been given and particulars in response to that request were filed on 3 February 1993.
The Structure of the Amended Statement of Claim Paragraphs 1 to 14 deal with the identity of the applicant and the various respondents. Paragraphs 15 to 17 plead an
agreement made between the applicant and a United States
company for the supply of the paper in question, the arrangement by the supplier for that paper to be carried by the Anthos from Baton Rouge to Burnie under a bill of lading and the arrival of the ship at a Burnie wharf on the evening of Saturday, 11 April.
Paragraphs 18 and 19 allege that on or about 13 April the respondent Waterside Workers Federation of Australia (WNF) placed a ban on unloading of the paper with the consequence that the paper could not be unloaded on the following day.
Paragraphs 2 0 to 36 make detailed allegations about the presence of a number of the respondents on the wharf at various specified times on 15 and 16 April which are said to
have had the consequence that waterside workers who were members of the WWF did not unload any of the paper.
These paragraphs also allege that such conduct was without the permission of the Burnie Port Authority.
Paragraphs 37 to 3 9 allege that on 16 April the WiF gave a slow work direction to its members and, as a consequence, unloading work on the afternoon of 16 April was delayed and prolonged.
Paragraphs 4 0 to 42 allege that on the morning of 18 April certain individual respondents boarded the vessel and occupied
crane cabins over cargo hatches and that one respondent
chained himself to the mast. As a consequence it is alleged the paper could not be unloaded.
Paragraphs 43 and 4 4 allege the individual respondents were acting within the scope of the employment of the unions for whom they were officers.
Paragraph 45 alleges that as a result of the delay in unloading the Burnie Port Authority directed the vessel to move to anchorage, which it did at 2.00pm on 18 April.
Paragraphs 46 to 49 alleges that on 21 April a number of the respondent unions directed a strike which is alleged to have been for the purpose of preventing the movement of the vessel
back to the wharf, that members of respondent unions engaged in the operation of pilot and line vessels and tugs withdrew their labour which resulted in further delay of unloading
because the vessel could not be moved from anchorage until 22 April.
From now on the amended statement of claim deals with the legal consequences of those matters. I shall set out the terms of the relevant paragraphs when I come to deal with them
individually. For the moment, so that the structure of the statement of claim can be appreciated, I simply note that paragraph 49 alleges that the respondents acted in concert with each other and with other persons unknown to the
applicant.
Paragraph 50 alleges that the purpose of the conduct alleged, defined as "the unlawful conduct", was to prevent and/ or substarltially hinder the applicant taking delivery of the paper "and thereby to prevent or substantially hinder the applicant from engaging in trade and commerce between Australia and the United States of America". Paragraphs 51 and 52 raise or purport to raise allegations of a breach of
s.45D(lA).  Paragraph 53 alleges a secondary participation by
each of the respondents and pleads in terms of s.75B of the Act. Paragraph 54 alleges that as a result of the unlawful conduct the applicant suffered loss and damage. Particulars
given under that paragraph say that the loss and damage arose from the financial liability of the applicant for demurrage and its deprivation of the paper for the use in the production of its own products. Further particulars are to be supplied.
Paragraph 55 alleges that by the unlawful conduct the respondents unlawfully interfered with the applicant's
business.  Particulars are given of the way in which that is
said to be unlawful including breaches of the s.45D(lA) of the Act, s.30I;(d) of the Crimes Act and a number of By-Laws of the Burnie Port Authority. Paragraph 56 alleges a direct
interference with the performance of the paper supply agreement and paragraph 57 an indirect interference with the performance of the paper supply agreement by unlawful means.
Paragraph 58 alleges a conspiracy to injure. Paragraph 59
alleges a conspiracy of the respondents to prosecute their
grievance against the applicant by unlawful means. Paragraph
60 is a general allegation of suffering loss or damage. Paragraphs 61 and 62 raise a cause of action based on
Beaudesert Shire Council v Smith (1966) 120 CLR 145.
I shall now proceed to deal with the paragraphs or groups of
paragraphs which were the subject of attack. Paragraph 49 Paragraph 49 is in these terms:

REASONS FOR JUDGMENT

The applicant operates a paper mill at Burnie in Tasmania.
The respondents include a number of unions. Other individual
respondents are officers of those unions.

"49. The eleventh to nineteenth respondents ('the

individual respondents') and the incorporated
respondents each engaged in the conduct as
alleged in concert with each other and other
persons unknown to the applicant."

The complaint here was that the paragraph did not plead the necessary facts to make out the essential element of intention. It was said that what should have been pleaded were facts showing how the respondents were involved in the concerted action beyond mere conduct and in particular what was alleged as being communicated between them. Reliance was placed on the well-known statement by Bowen CJ in Tillmanns Butcheries Pty Limited v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 at page 373 where his Honour said:

"Acting in concert involves knowing conduct, the
result of communications between the parties and not
simply simultaneous actions occurring

spontaneously."

That passage has been adopted in many subsequent cases to

which it is not necessary to refer.

In answer, the applicant asserted that the case that it is making out under paragraph 49 is one of inference. It has, in response to the respondents' request for particulars, given the following particulars:

"The fact that the conduct comprised a series of
temporally connected events or transactions; that
each had the ordinary and natural tendency and
effect of preventing the unloading of the paper;
that the conduct had a common purpose, namely, the
prevention of the unloading of the paper from the
Anthos; that the conduct formed part of the
prosecution of a notorious industrial campaign
against the applicant and in particular the
importation of paper by it from overseas."

The applicant also referred to the well-known passage from the judgment of Isaacs J in R v Associated Northern Collieries

Limited (1911) 14 CLR 387 at page 400, which is as follows:

"Community of purpose may be proved by independent facts, but it need not be. If the other defendant is shown to be committing other acts, tending to the

same end, then though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of

time, character, direction and result as naturally
to lead to the inference that these separate acts
were the outcome of pre-concert, or some mutual
contenporaneous engagement, or that they were
themselves the lnanifestations of mutual consent to
carry out a common purpose, thus forming as well as
evidencing a combination to effect the one object
towards which the separate acts are found to
converge."

In my opinion the applicant's contention is correct. I think the pleading of this allegation is sufficient to convey to the respondents the way in which the applicant puts its case on

the issue of concert so that the respondents can plead thereto
and conduct then defence.	In cases of this nature it follows

from the usual nature of things that an applicant will often
seek to rely on proof by inference since if conduct is engaged
in breach of s.45D1 the contraveners usually do not invite the
target to their discussions.

It was pointed out by counsel for the respondents that the facts of this case as pleaded show that various events happened over about twelve days and accordingly were not "temporarily connected". On the other hand, the case alleged is of one ship with the one cargo at the one port with the one consignee. But whether the facts as finally found by the trial judge make out the applicant's case on concert is of course not a question on which I can or should embark at the moment.

Paragraphs 50, 51 and 52
Paragraph 50 is as follows:

"The purpose of each of: (a) the unloading ban;

(b)	the presence of the respondents Bacon, Murphy, McLane, Price, Grundy, Grey and Lowe on the wharf on 15 April 1992;
(c)	the presence and conduct of the respondents Bacon, Nurphy, Price, Grundy, Grey, McLean and Gill on the wharf on 16 April 1992;

(d) the slow work direction;

(e) the presence and conduct of the

respondents Murphy, Grey and Gill on the

Anthos on 18 April 1992; and

(f) the strike direction.

(the 'unlawful conduct') was to prevent and/or substantially hinder the applicant from taking delivery of the paper and thereby to prevent or

substantially hinder the applicant from engaging in trade and commerce between Australia and the United States of America."

Paragraph 51 is as follows:

"The effect of the unlawful conduct was that the
unloading of the paper between 12 April 1992 and 24
April 1992 was prevented, hindered and interfered

with. "

Particulars are given which detail the delays in unloading said to have occurred between 12 and 24 April.

Paragraph 52 is as follows:

"In the premises the respondents engaged in conduct
in contravention of ss.45D(lA) of the Trade
Practices Act 1974 (Commonwealth) (the 'Act')."

It was said that for the purposes of s.45D(lA) the relevant purpose and effect have to be the same. I agree with that contention. I think there is a defect in paragraph 51 in that the effect is alleged merely to be one that "hindered" and not "substantially hindered" as the statute requires. A further allegation is made of interference. I think it is ambiguous and confusing to introduce into this allegation, which is critical for the purpose of the statutory cause of action, allegations which do not match the criteria of the statute. The redrafting of this paragraph should not cause any substantial difficulty but I think it should be done to make

sure the issues do not confuse, so I will strike out paragraph

51.

There was also argument which flowed from the expression in s.45D(lA) "(not being an employer of the first mentioned

person)". In reliance on a passage in the judgment of Gray J

in M E U v MATFA (1991) 32 FCR 318 at 332 it was argued that
this was an essential element of the cause of action which had

to be pleaded. It was said that, as a matter of law, if one

amongst a number of persons engaging in conduct which would
otherwise contravene the section was an employee of the
applicant, this would have a sanitising effect so that the
conduct of all, assuming them to be acting in concert, would

not breach the Act. There is authority to the contrary of

this and perhaps I should say no more at this stage than to
say that that debate can be pursued at trial, but it certainly
does not seem to me to be something which in itself warrants
any striking out.

In particular I do not think it is appropriate to require the pleading as a positive assertion by the applicant that the applicant was not an employer of any of the individual respondents. Apart from anything else, the applicant has pleaded in paragraph 49 that the persons who acted in concert included "other persons unknown to the applicant". It would be absurd, I think, to expect a pleader to allege that persons who ex hypothese are unknown to the applicant were not employed by it. I think, in accordance with the ordinary rule

the named respondents or anybody else who engaged in the	that he alleges must prove, if the respondents say that any of	conduct complained of was employed by the applicant then that is a matter for the respondents to plead and prove and then argue what legal consequence flows from such a fact.
It was also said that paragraph 50 was defective because it did not state what the purpose of each of the persons involved
was. I think the answer to that is that the pleading as it stands does make it clear that the applicant's case is that the purpose of the persons who engaged in the conduct specified in the earlier paragraphs was as alleged in paragraph 50. If the applicant is unable to establish that all the respondents in fact had that purpose or that perhaps only some of them did, the consequences of that are a matter
for argument at trial. I do not think the applicant should be
required to plead a number of hypothetical alternatives based on the possibilities that some respondents might have had the purpose but that others did not.
An independent point made in relation to this was that the
effect of the unlawful conduct as alleged in paragraph 51 was to prevent the unloading of the paper between 12 April and 24
April. The respondent pointed out that the narrative of
events pleaded earlier did not allege any conduct complained
of prior to 13 April when the WWF placed the ban. I think
there is some substance in this complaint and that the reference to prevention of unloading on 12 April seems
inconsistent with the detailed allegations elsewhere in the
statement of claim. I think it is confusing in its present
form and would be embarrassing to the respondent. If, in fact, it is alleged there was some interference on 12 April,
then that ought to be made clear. Otherwise paragraph 51,
which I have already ordered to be struck out, should be pleaded in a way consistent with the rest of the statement of claim. Paragraph 53 Paragraph 53 is as follows:

"53. Further, each of the respondents:

(a) counselled and procured each other

respondent;

(b)	aided and abetted each other respondent;
( c )	conspired with each other respondent

to engage in the unlawful conduct."

The argument here was that the pleading should have stated the material facts from which the court would be asked to infer that the conduct alleged in paragraph 53 was intentional, that of course being an essential requirement: see Yorke v Lucas (1985) 158 CLR 661. I do not think that this is a valid complaint. Paragraph 53 pleads matters of fact in the precise words of section 75B of the Act. Obviously the respondents would be entitled to particulars of the matter relied on to support that allegation and such particulars have been provided already, but the substance of allegation itself is

not defective.

In deference to the careful argument of counsel for the

respondents I think I should say that the undoubted
requirement to plead facts which bring the case within the
statute in the case of a statutory cause of action does not
mean that a pleading which, as here, picks up the exact words
of the statute is for that reason defective. On the contrary,
what the statute makes relevant is the existence of certain
facts. Those facts are pleaded. For the opposing party to be
able to have a fair trial it is of course entitled to know the
way those facts are going to be proved by evidence but this is
the province of particulars.

Paragraph 55

Paragraph 55 provides as follows:

"Further and in the further alternative by the
unlawful conduct the respondents unlawfully
interfered with the applicant's business."

Particulars are given which allege, in respect of each respondent, contravention of s.45D(lA) and also "s.30K(d) of the Crimes Act by obstructing and/or hindering the transport of goods in trade and commerce with other countries by boycotts of a person, namely the applicant, without reasonable cause or excuse". In the case of various named respondents, there are allegations of breach of various By-Laws of the Burnie Port Authority.

The existence of the tort of unlawful interference with trade

or business is not established in Australia beyond argument.	Its principal source is the speech of Lord Diplock in EIerkur
I s l a n d Sh ipp ing Corporat ion v Laughton [l9831 2 AC 570 at 609.
The significance of the tort is that the unlawful act need not involve interference with a contract either by procuring a breach or by interfering in performance.
That being so, I think paragraph 55 sufficiently pleads the cause of action. There was a complaint that paragraph 55 did not specifically plead the intention to cause harm to the plaintiff's business which seems to be an essential element of the tort: see Ansett Transport Operations Pty Limited v
Australian Federation of Air Pilots (1991) 1 VR 637 at 667.
However, the answer to that, which I think is correct and which was made by the applicant, is that the nature of the tort if it does exist essentially involves intentional interference and it is not necessary to plead it as a separate element.
I think it is important when dealing with the details of these allegations not to lose sight of the nature of the applicant's case as a whole. Although complex in terms of the various
legal rights said to arise and one which might give rise to much conflicting evidence, the applicant's case is in essence a simple one. Its complaint is that in the context of an industrial dispute action was taken by the respondents to prevent the Anthos from discharging its cargo which was obviously a matter which would cause loss to the applicant and
thereby bring pressure on it for the purposes of resolving the industrial dispute in a way desired by the respondents.
Of course it goes without saying that nothing I say should in the slightest way be taken as indicating any view of the legal or factual merits of the case one way or the other. This is purely a pleading summons. I simply make the point that the respondents can not have any reasonable doubts or confusion about the kind of case they have to meet. In connection with paragraph 55 and other paragraphs there was a complaint that it was not pleaded that the applicant suffered any, let alone "real" and not "minimal" damage, as a result of the alleged interference.
However, there is a general allegation of loss and damage in paragraph 60, which also picks up particulars in paragraph 54 to which I have already referred, and while no figures have yet been supplied it seems in the nature of things that if there be any requirement that "real" as distinct from "minimal" damages are required as an element of this tort that the statement of claim sufficiently alleges that.
Paragr~phs 56 and 57
Paragraph 56 is as follows:

"Further and in the further alternative the
respondents and each of them by their conduct as
alleged directly interfered with the performance of

the paper supply agreement."

Paragraph 57 is as follows:

"In the alternative to paragraph 56 hereof the

respondents and each of them indirectly interfered with the perfonnance of the paper supply agreement

by unlawful means."

Again, these paragraphs were attacked on much the same basis as paragraph 55 in that there were complaints made about the lack of pleading of intention and damage. For the same

reasons I do not think these complaints are made out.

Paragraph 58

It was said that this paragraph did not allege the existence of any agreement or combination between the respondents and did not set out with clarity or precision the predominant purpose or object of the agreement or combination was to injure the applicant.

I do not agree with this. The allegation clearly is of a

conspiracy to injure the applicant and to injure it in a
particular way, namely by preventing and hindering the

delivery of the paper to it.

It was said that the paragraph was defective in that overt

acts were not pleaded. It is true that the conventional form

of pleading of a conspiracy, a precedent of which is contained
in Bullen and Leake, Precedents of Pleadings (12th edition)
page 341, was not precisely followed. If I were to be
concerned purely and simply with matters of drafting style I

might perhaps suggest an alteration, but I do not see that as

my function.

In substance, paragraph (b) of the particulars in paragraph 58 makes it clear that "the unlawful conductu, which expression picks up the conduct referred to in paragraph 50, constitutes the overt acts in the sense of the acts from which it is to be inferred that the conspiracy took place, and at the same time the acts which were done in furtherance of the conspiracy. I do not see that there is any substantial prejudice to the respondents in the way that this allegation has been pleaded.

Paragraph 59
This pleads the alternative kind of conspiracy, that is, by
unlawful means. Again the complaints were made about the lack
of pleading of intention and overt acts, but it would seem
that, in contrast with the conspiracy to injure, this form of
conspiracy does not necessarily require predominant purpose to
injure, or at least that such a contention is arguable on the
authorities and therefore I do not think I should take any

action to strike out the paragraph on the basis claimed.

Paragraphs 61 and 62

Paragraph 62 is as follows:

"Further and in the further alternative the conduct

of the respondent as alleged herein was:

(a) the intentional and posltive acts of each of the respondents concerned in them; and

(b) unlawful in each case."

I think that although it was open in terms of the notice of

motion to the respondents to argue that no reasonable cause of	action was disclosed, it would be clearly inappropriate for me
at this stage of the proceedings to suggest that it was anything other than arguable that the decision of the High Court in Beaudesert conferred a cause of action in these circumstances, notwithstanding that that case has been the subject of much discussion and some controversy. As a matter of pleading, I think as I indicated in argument it would be more precise if the word "unlawful" were inserted before the word "conduct" in paragraph 61 so as to make it clear that what is being referred to is the conduct defined in paragraph 50, but subject to that I think the cause of action is properly pleaded. The precise terns of the formulation in Beaudesert are pleaded. While it is true that it is not a statute, it seems to me, if the cause of action is based on that decision, it is highly desirable that the words of the High Court are used and not some paraphrase or gloss of the pleader.
I think that unlawfulness is sufficiently alleged by picking up the particnlars under paragraph 55. There was a complaint made also about the absence of an allegation of damage, but I reject that for similar reasons.
Paragraph 55 There was an attack on the particulars of unlawfulness under
paragraph 55. It was said that the particulars had to be
"unravelled" so that each item of the earlier conduct in the statement said to constitute a contravention would be identified and the factual basis indicated. But reading the amended statement of claim as a whole, and particularly the detailed specific allegations against particular respondents in the earlier part of the pleading, I think the case is sufficiently made out. Paragraph 50 A complaint was made about the "unlawful conduct". It was said the precise respects in which it is alleged the conduct was unlawful were not specified. However, it is clear, I think, that the expression "unlawful conduct" is simply used as a convenient label for the acts referred to in paragraph 50 which relate back to more detailed allegations earlier in the statement of claim. Calling that conduct "unlawful conduct" of course does not of itself make it so, and that part of the applicant's case is spelt out, not in paragraph 50 but in the particulars to paragraph 55.
Paragraph 60 It was complained that the "wrongful acts" were not identified. But the deliberate choice of this expression as opposed to "unlawful conduct" makes it clear that the plesder here is referring to the acts which are made wrongful because of the various alleged breaches of the statute and common law. In other words the term "unlawful conduct" refers to the
conduct itself, "wrongful acts" refers to the various causes
of action as a whole.
In the event I would strike out only paragraph 51. As to paragraph 61 I will give leave to amend by insertion of the word "unlawful" before "conduct".

I certify that this and the
preceding (19) nineteen
pagas are a true copy of
the reasons for judgment of
his Honour Mr Justice

Heerey.

Appearances

Counsel for the applicant:	M r A C Archibald QC with
B Mueller
Solicltor for the applicant:	Blake Dawson Waldron
Counsel for the respondent:	Mr J L Dwyer QC with 14r K
Bell
Solicitor for the respondent:	Holding Redlich
Date of hearing:	9, 11 March 1993