Sawmillers Exports P/L v Waterside Workers Federation of Australia

[1991] FCA 744

Q\

FEDERAL COURT OF AUSTRALIA) JUDGMENT NO. X%-- ) No. NG368 of 1991

T C - REGISTRY)

1

BETWEEN: SAWMILLERS EXPORTS PTP

LTD

Applicant

AND :  WATERSIDE WORKERS '

F E D E R A T I O N	0
AUSTRALIA Res~ondent

CORAM :	WILCOX J
PLACE :	SYDNEY
DATE :	15 JULY 1991

MINOTES OF ORDER

TBE COURT ORDERS THAT:

1.         The Respondent, its servants and agents take no action to hinder or impede the loading this week at Kooragang Island, Newcastle, of the vessels "Chuetsu Maru" and "Forest Prince" other than in the course of engaging in any conduct which falls within sub- paragraphs (a) or (b) of Section 45D(3) of the Trade Practices Act.

4. *	The costs of interlocutory application be reserved.
Note:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. [See also
Order 37 rule 2(3)].

Liberty be granted to any party to apply in relation to that Order on such notice to the other as a Judge may consider necessary.

3.         The directions hearing be stood over to 9 .30am, Thursday 25 July, 1991.

JN THE FED= COURT OF AUSTRALIA)

1       No. NG368 of 1991

NEW SOUTH DISTRICT ~UGISTR~~

1

BNEW DIVISION 1

BETWEEN: FWMILLERS EXPORTS Pm

LTD

Applicant

AND :  WATERSIDE WORKERS '

F E D E R A T I O N	0 F
AUSTRAL= Respondent

PLACE: SYDNEY

DATE a 25 JULY 1991

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.         Order that the interlocutory injunction made on 15 July 1991 be perpetual but confined to the vessels referred to therein at the loadings referred to therein. Order that respondent pay costs of applicant of Application for interlocutory relief but such costs are to be fixed on basis that no fees

the Application is otherwise dismissed. for senior counsel should be allowed. By consent

Applicants are to pay costs of respondent incurred in relation to the matter generally as distinct from Application for interlocutory relief.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. [See also Order 37 rule 2(3)].

M THE FEDERAL COURT OF AUSTRAL= 1 No. NG368 of

1               1991

TRICT REGISTRY )

1

- 1

BETWEEN :	A	-	S
LTD Applicant
AND :
Respondent

WILCOX J

SYDNEY

15 JULY 1991

EXTEMPORE RgASONS FOR JUDGMBNT

On Thursday last I granted leave to the applicant

to issue an application made returnable on Friday afternoon
seeking an order under s.45D of the D a d e Practices Act 1974
against the Waterside Workers' Federation of Australia in

OX 3;

connection with a threatened ban on the loading of wood chips

on two ships due to load early this week at Kooragang Island in Newcastle harbour. The evidence was that the applicants,

Sawmillers Exports Pty Limited, export wood chips from
Australia using the services of a stevedoring company Conaust

Pty Limited for that purpose.

It seemed to me quite clear when the evidence was

examined on Friday afternoon that this was a case to which

s.45D applied. Indeed, there appeared to be two provisions of

Counsel says that, this assurance having been given

by the port committee, his client, the Federation itself, is of view, is the qualification at the end. Naturally enough, the applicant is concerned with what will in fact happen when the ships arrive for loading. It would be unfortunate if there was some problem, not presently foreseen, which prevented the loading and which might cause disputes between the parties as to whether or not it was a breach of the undertaking.
prepared to give an undertaking to the Court in like terms.

that section which had at least prima facie application,

namely s.45D(l)(b) and 45D(lA). However, there was a question

about the relationship between the persons who had threatened

the ban at Newcastle, and who were identified as officers of

-.

..

the Newcastle branch of the respondent and also its port

canrmittee, and the respondent itself.

I accorded to counsel for the respondent an

opportunity of obtaining further instructions over the
weekend. This was not a problem from the applicant's point of
view because the first ship is not due to commence loading
until midnight tonight. Over the weekend, further
instructions have been obtained. I am informed by counsel
that the port committee of the respondent has given an
undertaking to the respondent that it will not take any action
to hinder the loading of either of the ships, known as the
"Chuetsu Maru" and "Forest Prince" as a result of the

elimination of the non-coal pool from the applicant's yard;

this being the industrial dispute which lies behind the

threatened ban.

. -

I am conscious of the fact that s.45D(3) excludes

from the operation of that section bans which arise as a result of conduct which is engaged in in relation to the remuneration, conditions of employment, hours of work or working conditions of a person or action by an employer to

terminate the employment of a person. In other words, genuine industrial disputes on those matters, between the employer and employee, do not fall foul of s.45D.

That subsection does not seem to have any relation to the subject case, for two reasons. One, the applicant does

not employ members of the respondent union. Secondly, there

has been no suggestion that the disputes relates to any of the

matters referred to in subs.(3). The presence of the

subjection inculcates a warning against making an order which
is too wide. Notwithstanding this, I think that, if there had
been any possibility of the legitimate use of s.45D for a
p~rpose~protected by subs.(3), the Court would have heard
about it; particularly having regard to the adjournment over
the weekend and the fact that the port committee has met and
considered the matter.

I think that the appropriate course for me to take is to make an order, without the qualification. Counsel for the respondent is not in a position to give an undertaking

fzee of this qualification because that would exceed his
instructions. The Court may make such an ozder. However, a
feature of the order should be liberty to apply at very short
notice, in the event that some problem arises which, in the
view of the respondent or its officials justifies a ban being

imposed upon the loading of these particular vessels.

In thinking that it is correct to make the order

without the qualification suggested by counsel, I have in mind indefinite duration or which was to apply to a number of unidentified vessels.

that the suggested undertaking is not of indefinite duration
and that it refers only to two specific vessels, both of which
are expected to load within the course of the next few days.

Counsel for the applicant has indicated that his

client is prepared to give the usual undertaking as to
damages. But counsel for the respondent says that this is of
no significance in this case and I am not asked to extract
such an undertaking. Accordinglg, I will simply make the
following order:

1.    The Respondent, its servants and agents take no action to hinder or impede the loading this week at Kooragang Island, Newcastle, of the vessels "Chuetsu Maru" and "Forest Prince" other than in the course of engaging in any conduct which falls within sub-paragraphs (a) or (b) of Section 45D(3) of the Trade Practices Act.

I grant liberty to any party to apply in relation to that order on such notice to the other as a judge may consider necessary. Let me add that can be at very short notice if

there's an emergency. I note that Mr Crawshaw has submitted
that the Court should suspend the order which I indicated I

proposed to make, pursuant to s.80AA of the Trade Practices

Act. This section is an important one, in allowing industrial	matters to be ventilated and hopefully resolved in the is very useful in the present case. The evidence indicates
that the underlying dispute has been before the Commission on a number of occasions already, over a number of months, but without resolution. There is an urgent problem which will arise tonight. The Court's orders should be allowed to operate in relation to the two particular vessels which are about to load. Of course, if the underlying problem is not resolved, there will be difficulties for future vessels.
Accordingly it is highly desirable that the matter go back to
the Commission as soon as possible. I understand that steps have been taken to that end but it is accepted that there is no possibility of the Commission being able to deal with the matter today.

Accordingly, the orders should be allowed to

operate. But I emphasise that they are orders of limited
application and should not be regarded as in any way affecting
the resolution, on the merits, of the underlying dispute.

I certify that this and the preceding five (5) pages

are a true copy of the Reasons for Judgment

of the Honourable Justice Wilcox.

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Associate:

Dated : 15 J U ~ ~ 1991

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Counsel for the Applicant:	D A Cowdroy, QC and G Hatcher
Solicitors for the Applicant:	Murphy & Moloney
Counsel for the Respondent:	S Crawshaw
Solicitors for the Respondent:	Taylor & Scott
Date(s) of hearing:	12 and 15 July 1991