ae eirh test cent keane ee ne Sill cacti eae a a ea eR ee ' ' av ds as. he se nat ek ee & lon le le ets he ce tt te —_—— JUDGMENT No. swale sel ow 2.0 - aQa ry ie] re Trade practiccs - secordery soveott - interlecuco:y in t Trade Practices Act 1974 - s.45D CLEVELAND TIN LIirt D AND 2VOR. v. THD AUSTPALIAN WOPKERS AND ORS. . . tv = . ' "iF 2 a ee, 3 Jenlinson d. . "Th vt wf 4. 100 ~~. en — we eweee nee ees - ee - ] pO veset ee 8 Taree IN THE FEDERAL CCUPT OF AUSTRALIA ) VICTCRial DISTPICT REGISTRY ) VE No. 71 cf 1984 GENERAL DIVUSION ) BOTWEEN: CLEVELAND TIN LIMITED Firstnamed Applicant ABERFOYLE LIMITED Secondnamed Applicant AND: THE AUSTRALIAN WORFERS UttION Firstnamed Responcent THE WATERSIDE WORXERS FODERATION OF ZUSTRALIA Secondnered Respondent RAYMOND DEVLIN Thirdrawed Respondent LEN EVANS Fourthnamead Respondent KEVIN MUMDAY Fifthnamed Respondent JANES RAYNER Sixthnamed Respondent CORAM: Jenkinson J. ee ee rei Ad Bh me ee ek ek Ee lle a be Abinto ened 2 eae me PLACE: Melbourne DATE: 27 April, 1984 : . REASONS FOR JUDG! INT 4 . i. Application for interlocutory intuncticns. wee ee ee me pee ee + - eee me eee . oe ~ - oe - - - an a ol ea nak de Laat a3 : |i {Fy ij ' ree Lense Se et te ee be dw ai eee ee LL neared Sede te dobby be dare ek tale ne eke de (ee ile Posed ee dee ates ee Cd tie ro) PaoO c m 7] @a Fereafter I state facts as thouch fo function in determzning this acplicaticn 1s not to reach my + re) iw a concluded findine, but to see whether the applicants have made y ty u "a prama facie case", in the sense in which that expression rn been expounded in a number of authorities bindine upon me. (See, fer example, T.W.U. v. Leon Laidley Pty. Ltd. (1980) 28 A.L.R. 589). To avoid unnecessary revetition I make it clear that all the facts are stated hereafter only in that sense. 2. The irst-named applicant (which is hereinafter called Fh ""Cleveland") 12s wholly owned by the second-named applicant. Cleveland owns 48 per centum of the share capital of Cue Piver Mining Pty. Ltd.. The rest of that share capital is owned by another company which is wholly owned by Cleveland. Cue River Mining Pty. Ltd. has been in: dispute with some of its employees, who are members oz the Zirst-named respondent (which is hereinafter called "A.W.U.") concerning terms of the employment of those employees. Each of A.W.U. and the second-named respondent ls an association of employees registered as an organization under the Conciliation and Arbitration Act 1904. In Marck 19°84 Cine River Mining Pty. Ltd. purported to terminate the emvlotment of each of its employees who was a member cf A.W.U., emplover ana employees being an dispute over terms and conditions cf employment. Qa a @ <x i) fay a) : Qs J Bp od om n ovQu uel rocesses ore at Luina ir Tasmaria i ee soe Ae - - - - . eee eee oe a --- ee a sven Oe INES CET OC RT OT OA OCT On COE BOON SENT SDMOOTEN SMPTE TST nt Se] ert See We DUOC STON SCOT OTe STarOOte IN Deer Daren oP EN Oend Set, Sie eEoae wT] Peregs Darcy SWNT) Nar ey pean SPO ENr Ont wee 3. and exports the tin and copper concentretes "hich are produce* those operations to other Austraiian States and to other countries. The concentrate which is the subject of evidence i1n this application 1s intended by Cleveland ta be exporzced by ship to buyers in Malaysia under c.i.f. contracts. Payment to Cleveland by the buyers, Datuk Keramat Smelting Sin. Berhad and ery Malaysia Smelting Corporation Sdn. Bhd., is not due under the contracts until after the ship has cleared Burnie, which is -the port of exportation. In the event of strikes, other differences with workmen, intervention of constituted authoritzres or any other contingency beyond the control of Cleveland preventing Cleveland from forwarding or shipping the concentrates in che ordinary course of business, shipments may be suspended until such conditions cease to exist, without breach of either of the two i contracts for sale of the concentrate. The applicants allege that each respondent bas in concert with each other and with other versons engaged 12n conduct tnat hinders or prevents the acquisitzon of the concentrate by the buyers from Cleveland and which was engaged in for the purpose, and would be lixely to have the effect, of causing substantia? loss or cCamage to the business of Cleveland. It urs Furth i Ls) alleged that the said conduct was engaged in for the purrose, and would be likely to have the effect, of pr2venting or substentirally hindering Cleveland from engaging in trade or commerce between Australia and places outside Australia. The sard cencuct is alleged thereby to contravene s.45D{1)(r)(1) an@ s.15D/1A\ eof the re ee ee eae ne me woe oe ee cm ee - - - ome ~ pares Ladin ae te ee tn. ED hele ee oe del S Deere baw eet a mel Den A te oe sD ed ted woe dae conertine wb ed at i es ee tle le eo ee | Trace Practic o u the respondents fren ccontinvince to engage in the amended statemenz of claim filed on 16 April 1238+ Act 1974 and injunctions are sought 'to restrain common law causes of action : ainterference with contractual relations, intimidation and conspiracy. 3. The third-named respondent is the secretary of an unincorporated association calle@ the Burnie Trades and Labour Council. He 1s described in an affidavic sworn 6 the applicants' solicitor as holding office as a " the Burnie branch of the second-named resvondernt", April 1°84 » < Comrictteeman at but an exhibit to that effidavit snows "R. T. Deviin" of 50 Bird the member of the committee. The third-named affidavit shows him to be Arthur Ray Devlin o Montello. A telex message from Mr. Devlin to the directors of the second-named respondent on 11 larch 1984 was in these terms: of all tin corcertrate from West Coast Que River has been resolved." £ an St. Burnzre as respondent's. 50 Bird Str. eirman of the "Burnie Trades and Lapour Council Executive today, Sunday llth March 1984 has placed ban on movement Transport Depot to wharf 'until advised by 3AWU that GEisnute at West Coast Transport Pty. Lte. carries concentrate for Cleveland from Luina to Burnie py rcoad and sometines stores Cleveland's concentrate at its depet in Burnie until the delivereé to a Burnie wharf for shipment. concentrete ais « On 22 March 1984 a director of West Coast Transrort Puy. ~ ' ' td., dan De Bruyn, was told by Wr. Devian 12 Substance if i following: "There is a picket line in place at the wharf to stop all Cleveland tin concentrate deliveries. If you try to cart containers throuch the »vicket lines we will close the wharf. Anyway, even af the picket line misses any @Celivery of cin, 2 will not be unloaded by members of the Waterside Workers' Federation working on the wharf." On 26 March 1984 a container of Cleveland's ccencentrate was delivered to a wharf at Burnie. Later tnat day Mr. Devlin saic to Mr. De Bruyn in substance: Egetcteerme cure Cand she wca ak ond Cea heehee add eine tate had te lee chee dae Cate be dae tated Ne thd eee bs eh en ee teed awed eee ee "You must remove that conteiner that was delivered today or West Coast Trarsport will be banned from the wharf area. Those twc containers that were previously delivered will be stacked in the corner and will stay there " Another director of West Coast Transport Pty. Ltd., Giysbert De Bruyn, spoke to Mr. Devlin on a wharf at Burnie on 27 March 1¢984, De Bruyn said: "We've done nothing wrong. The picket line was not there when we prought in the container yesterdcay." Mr. Deviin replied: ' ket ther should have been "I told the men on the qa = to Lunch." here zsnsteaé of goind o toatl eaten t areny rat a td ey) are "4 < a ale he eh te Ot aN I ee pean hin hed Shen er ia than atts coe eT, Ane Le ede Reet eel Ble tne A thE ne Addn att tate abet ek od tented bebewiten at Leet see cit et me ee ee oe se A manager at Burnie of anotner cartaye contractor, Halmond Palmer Transport, which carried Cleveland's concentrate 1a a truck on to the wharf at Burnie on 27 March 1984 was told py Mr. Devlin later that day: "Tf you do tnat again you'll be black-banned in tne Port of Burnie." Hammond Palmer Transport acts as a transport egenct for C. Plesse « Co. Pty. Ltd., which is the shizping agent 1n Burnie of Malaysian International Shipping Corporazion, tne shipper engayed by Cleveland to carry the concentrate from Burnie to Halaysia. if Cc. Piesse & Co. Pty. Ltd. is not able to receive any particul r fu delivery of Cleveland's concentrate from West Coast Yfransport Pty. Ltd., the concentrate 1s commonly stored at a dammond Palmer Transport yard in Burnie until it 1s delivered to a wharé. 4. On 28 March 1984 a board was on the bumper par of a motor vehicle parked on the side of a road giving access to premises at the port of Burnie which sare <nown as the ANL terminal. on the board, in letters legible by those who used the road, were the words:| "Official AWU Picket Line Do Not Cross Ban On 4 Aberfoyle Tin Concentrate." } 4 A truck and attacned trailer operated sy West Coast { i * ~q 7 1): 4 ' ; ] a . _- —we eee nen a - "4 eet tine ered eee de er oe ade bate dE ee we eb me Bla eel te ne Yocdtel avsas ata! A ee ee a tae cde atleast beled ital eet LES a trative obec 7. Transport Pty. Lid. and carrying Cleveland's concentr-t? approached tre board and stormed wren wir. bBewvlron ard the sixth-namei respondent waved to the driver from a positior rear i fag iy a dc the board. The driver o ruch was asked by one of tnose tre, probably by Mr. Rayner in Mr. Davlin's presence, whether the trailer was carrying tin from Luana or from another maine. hen the driver replied that he diG not know, he was told, probably py Mr. Rayner, that he "had to get out", that the speaker 'tnew the concentrates on the trailer were from Luina and that they would not be unloaded. The driver then drove away from the whart to the depot in Burnie of West Coast Transport Pty. Ltd. 5. The fourth-named respondent Leonard Kevin vans is a "paid Organiser" employed in the Tasmanian branch of A.W.U.. In an affadavit which, as Mr. Evans deposes therein, he was authorised by A.W.U. to make on its behalf, ne also deposes as follows: "4, TEAT to my knowledge, the only Unzon to have any ban on the 'roverent of the Applicant's tin concentrate is the a.W.U. ard in particutar, it members «hich were illegally disrissed py fue Paver Mining Pty. Ltd. which I pelieve is omed and controlled by the Second~naned Anvlicant."" 6. ANL Cargo Operations Pty. Lrd-, which is hereinafter ra called "ANL", carries om business at the pramises called the Oh terminal. It may be anferred, although there is no direct e evidence, that ANL was engaged either to load er ts superviss " loading of cargo on to a ship, "Anrc Terasex", which herthad act patented aie Laci atta eaninds alee tata! ) | pa Camere camel! a a an ne ee wR he Me dar ees ha anne tee ab Ra a reed = tle eee eta Lee tee Soe se ohne! dat wee SP wines dE cake edhe oe ot ne Caren meet Latter Bt sod tall cade to daed wet beaks 8. the ANL terminal at apo1it 9.30 aer. cn 12 &nril 1S3a4 are lefts: Burnie thar nigh oy aun the early hours cf the nert day. Aa alternative iazerence 18 trat ANL merely made available for use the termminél and whatsver cargo handling eaquivment might be there. There was evidence that the ship ""Anro Temasex" was to carry Cleveland's concentrate to Malaysia. There was no avidence by which to igentify the other party to the contract under which ANL would gain remuneration in respect cf the loadinc of tke concentrate on to tne ship. 7. On 10, 11 and 12? April 1984 a board on thich were written the same words 'as <= recorded in respect of 228 March 1924 was displayed rear the entrance gates to the ANL terminal. From time to time men who had been employed by Cue River lining Pty. Ltd. were near the sign board. On 10 and 12 April 1984 Mr. Evans was with men near the sign toard. Before 9.40 a.m. on 12 April i984 Mr. Evans and other men spoke to Mr. C. Nalder, who was described an evidence as the terminal superintendent for AIL at the port of Burnie, at the ANL <terrinal. One of the men told Meléer they '< would prevent the loading of the ship "Anro Temasek" until the ' adentified the containers of Cleveland's copcentrate at t Ss! a terminal. Mr. Evans said to Nalder that the men with him would Place themselves in a line across the loading ramp to ston the loading of the ship. ir. Nalder then pointed out to Mr. Evans the containers which contained Cleveland's concentrate. Durine the rest of the day Mr. Evans was from time to time with men standing near the sign boarcé and from time to tire he envered the termin ne Ww te oe eed Ne ate et, oat oe ete ee. re ae a ee a re a le Me ke tee el ee tn Aue Gr aves cenit hat bard avnbve dale pte eetee aa dated ee At about 9.15 p.m. that Gay wen ansiga the cermunsl posicicnec themselves in the way of a fork life truck wrach was e09Lt to "OVE a contarner in the terminal. Some of those yeare merkers of A.W.U. and seme, perhaps ail, were memn = A.U.U. who had been i) ry es) Oo re working for Que River Mining Pty. Ltd.. No container of Cleveland's concentrate was loaded on to the ship. 8. On 13 and@ 14 April 1954 men vere at the sign board, some [or of them members of A.W.U. who had worked for Que Fiver Mainang Pty. Led.. At times Mr. Evans was with them. On 13 April Cleveland arranged for the transport of the twelve containers of 1ts concentrate which were then at the ANL terminal to another wharf, known as McGaw's Wharf and operated by the Burnie Marine Board, at which a ship, "Bunga Terata1", was to be loaded on 14 Apral 1984. & does not appear with whom che arrangement was made, nor by whom the 12 containers were to be transported. *% about 11.00 a.m. on 13 April 1984 Mr. Evans and other men were together at the main entrance gates te the ANL terminal. A truck carrying a cargo container from the terminal was stonved at the gate by Mr. Evans and the other men, Sere of the nen remained standing in front cf the truck. Ahout half an rour later police escorzed some of these men away from tye frort cf the truck De ene et ae ee eT ee ee Oe tn nll a ete a te oe ee Ak hee dh ted oo ed es ee deta kl he Ciee Lee ee ae dee Mle Re ah ee Cree Ree Te Toes ne ie ee te ee ache ea teed ana the rest of the men moved avtay From the Ffrone of the track, vhich Grove back unto the cerminai- F On 16 April 1964 Mr. Evans and other persons, sone oi whom had been employed by Que River lining Pty. Ltd., vere ouesite the ANL terminal. 9. The fifth-nameé respondent Kevin Iunday is a member of the second-named respondent. Fe is alleged in the amerded statement of claim, but 2s not proved, to be "a vagzlance officer" of the second-named respondent. There 1s evidence that a "man called Munday", who is not otherwise identified with the fifth-named respondent, spoke to the driver of one of Hammond Palmer Transport's trucks at the NL terminal on 27 March 1984, "hen a contazner of Cleveland's concentrate on the truck was about to be unloaded by a forklift operated by a waterside worker. When the driver admitted in answer to a question that there was tin in the container the "man called Munday" told the forkliit operator that the container was rot to be unloaded. The forklift then withdrew and the truck returned with the container to the Hamrond Palmer Transport depot. 10. On 5 April 1984 the following tele' was received hy the applicants' solicitor from Mr. N. Docker, who is the general secretary of the second-named responéeat: "I set out belo. a commuricetion ferwardec on the evening of 4 April 1984 to cur Eurnie Branch. awray abe 177 Caren OO ES 5) ae Spee OP, Te Tee TL ae Ce eee eee et Oe OL 2 rg ahmed weedy ase a wk ed ee Dae dae aden barred ee ee et eet te fd t Cuote Two ccmpan Limited, hh c of Australiva ad against 2 Rayner. The actions are pased on the secordary bovectt provisions of the Trace Practices Act and, 1 successful, could ultimately lead to heavy fines on the organisacions and the irdividuals. Our understanding is that the AWU yas an argument with one or more of the applicant companies in one of the local mines. The Burnie Trades and Labour Council has apparently seen fit to speax on behcl£ of our Unior withcut our authority. Our understanding is that containers are being loaded at the mines py ANU lapour and transrorted to the waterfront by TU labour. Under these circumstances it is ridiculous that the AWU, the TWU or the Trades and Labour Council should expect our members to 'carry the baby' and involve our organisation ané officers in serious penalties. If the AWU wants the movement of concentrates to be obstructed they should not load them in the first place. Our understanding 1s that, to date, our members at Burnie have not been called upon to load the containers nor have they in any way obstructed the receival of the conteiners. .- Therefore, uhder these circumstances, the Federation directs the Branch that it sboutd net entertain any suggesticn of interferine with the process of loading these contazners acoard the vessel when called upon to do soa. We suggest that you might show a copy of this letter to the Secretary of tne Burnie Traces ¢e-d Labour Council. Unquote As our members have not been involved in any vay in ampeding the movement cf your clients' consainers and, ain the lagnt of the direction now cqiven to Ka intense ded urds ee ee Ee ae wt eee ee te asain dat Ay ee het ae Wain dete ed en tae it ated Ebates CaP eed Med eee be Oo 12. them, we sucgest that there i should be joined in your Feces on which '2 < action. We would appreciate your advice that you wiil maxe our position clear to the Federal Court and seek to remove us and our member tiunday from the list of Respondents. This would avoid unnecessary attendance at the ¥ hearing by us." There 1s evidence that Mr. Nalder had said on 14 April 1984 that "the waterside workers have refused to work under police supervision"; and evidence that on 165 April 1984 Mr. Hhaléer had said that an officer of the Burnie branch of the second-naned respondent had informed Nalder hat waterside workers "would refuse to cross a picket line". Mm ll. The sixth-named respondent James Rayner 1S a member 0 A.W.U. who had been employed by Que River Mining Pty. Ltd.. He i a alleged in the amended statement of claim, but 1s not proved, to have been "a shop steward elected by the members of ...A,W.U... "employed by Que River Mining Pty. Ltd.". In paragraph 4 hereof reference 1s made to his conduct on 28 March 1984. 12. Cleveland's vrimary case against the respondents 1s th i ct each has, in concert with the others, engaged in corduct for t! oO purpose, and having or likely to have the effect, of preventing or substantially hindering Cleveland frem encaging in trade or commerce between Australia and places outside Australiz2, in contravention of s.45D(1A) cf the Trade Practices Act 19 Star eaateth aoe tien tan incticemmecaeneemn anemia ttientnennaeamtn sandimameaimamammnammenaameceeeeiane nen eae -- - Seen UTS TW NETHCSUY Ie ae SONOS. TORENT we be ee arden bk Ub Geka ate deed nate et hale edt de nd aer tlie sl Mer an Pate tee tet ete te hdd be lt | I Le) of that Act. There 1s in my opinion on the material before me a prima facie case that each of the first, third, fourcr and sixth-naned respondents has engaged, in concert with at least one of the others, "an conduct of the descriptiom proscribed ty s.45D(1A), notwithstanding evidence to the contrary by the four natural persons who are respondents. It 'vas submitted on behalf of the resvondent that paragraph (ii) of s.45D(3}(b)} ccomprehends persons whose employment has been terminated by the employer. Tre submission 2s no doubt arguable, put I cannot accord it a sufficient prospect of acceptance to displace the prima facie case made. Then it was argued that the employment of the members of A.W.U. who had been working for Que River Mining Pty. Ltd. had not been effectively terminated by that company and that all those persons were therefore within the description contained in s.45D(3)(b)(12). I cannot give that argument such a prospect of success as would @isplace the prima facie case. ' 13. I am not persuaded to find a orima facie case acainst either the second or the f1fth-nared responéent of participation, er of any present intention to participate, in contravention of s.45D. 14, The balance of convenience inclines, in my opinion, to Maz 2. Fab de es Te emien. a draneanenanica asieeaan mane tahoe ioneemncennenmesnamienenmimeiadaaaed ase — — -- - 14. the grant 'of unterlocutory relief. The prevention of Cleveland's per formance of these contracts is causing 1t substantial loss. if it should turn out at trial that the enjoined activities of the respondents would not have contravened s.45D, no more than a possibility that those activities might have achieved the objects of those respondents during that pericd will have 'been lost by them. my _ 15. The statement of claim was amended on 16 April 1984 to include several common law causes of action against <he respondents : interference with Cleveland's contractual relations, intimidation and conspiracy. In my opinion no prima facie case to justify an interlocutory injunction against the second or «he fifth-named respondent was made by reference to any of those , causes of action. It 1s unnecessary for present purposes +o consider those causes of action against the other respondents, who may be more generally restrained by reference to s.45D than by reference to any'cf those causes of action. " te at