Australian Bluefin Pty Ltd v Greenpeace Australia Ltd [1998] FCA 73

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 5 of 1998

BETWEEN: australian bluefin pty ltd

(acn 058 441 722)

Applicant

AND: greenpeace australia limited

and: (acn 002 643 852)

FIRst RESPONDENT

the master and crew of the

m/v rainbow warrior II

SECOND RespondentS

JUDGE: MANSFIELD J

DATE: 23 JANUARY 1998

PLACE: ADELAIDE

REASONS FOR DECISION HIS HONOUR: I propose to give a decision on the application now before me with very brief reasons. The brevity of the reasons partly reflects the desirability of saying too little rather than too much at this stage of any proceeding, but also reflects the fact that the first respondent, Greenpeace Australia Limited ("Greenpeace") has not had a full opportunity to file responsive material to the application. I have therefore proceeded to hear the application for interlocutory relief against it only on a preliminary basis. A further reason is that second respondents as named - namely the master and crew of the motor vessel Rainbow Warrior II ("the Rainbow Warrior") - have not been served with proceedings and the application against the Rainbow Warrior is on an interim and ex parte basis only. For the reasons which I am about to give, I do not need to address the question of the jurisdiction of this Court to make the orders which are sought. Submissions were briefly made as to the jurisdiction of the Court, both to entertain the cause of action generally and to entertain the claims against the Rainbow Warrior having regard to the place where the conduct complained of took place and to the fact that no leave to serve the Rainbow Warrior has been given nor, it was suggested, could be given. Those matters are for another day. The claim for interlocutory and interim injunctive relief relates to the conduct, said to be of each of the respondents, in interfering with the proper fishing processes of the applicant on 19 - 21 January 1998. The evidence before me indicates that that alleged conduct - and I make no findings as to whether it in fact took place - came to an end sometime during 21 January 1998, but in that period of time had quite significant deleterious effects on the fishing operations of the applicant. Since then, the Rainbow Warrior has returned to Ceduna and, on the evidence before me, is now proceeding along the coast of Australia to Adelaide and Melbourne with a view to leaving Australian territorial waters sometime towards the end of February 1998. Despite that, I am asked to grant interlocutory and interim injunctive relief to restrain further conduct on its part, and on the part of the first respondent Greenpeace, from interfering with the fishing operations of the applicant. I am satisfied on the material before me that there is a serious question to be tried that the Rainbow Warrior has engaged in conduct of a tortious nature sufficient to entitle the applicant to relief against it, if otherwise it is appropriate. It is not necessary to go beyond a finding that there is a serious question to be tried on that topic. A separate question needs to be addressed as to whether the conduct complained of is conduct in which Greenpeace is involved as an actor or as an aider and abetter of that conduct. It is not always easy, though sometimes necessary, to draw fine lines between the conduct of one person or entity and the conduct of another person or entity. At this stage of proceedings it is, however, not necessary to draw those lines. It is sufficient to say that I am also satisfied that there is a serious question to be tried that a cause of action lies against Greenpeace for the conduct complained of, either by the involvement of its employees at the site or for its role, such as it may ultimately be found to be, in procuring or participating in the Rainbow Warrior being at the site where the conduct took place, and engaging in that conduct. As I say, I am not making findings that that conduct has taken place, or that Greenpeace was a party to the conduct even if it did take place, but I am sufficiently satisfied that there is a serious question to be tried on those issues. That is of itself not sufficient to grant interlocutory or interim injunctive relief. Also, for the reasons briefly expressed, that view is but a preliminary one. If one were then to step simply to the balance of convenience it is clear that on economic grounds the balance of convenience would rest strongly in favour of granting injunctive relief simply because the economic detriment to the applicant is potentially so great and, on the other hand, there is no evidence of any economic or other significant detriment to the respondents. However, in deciding whether it is appropriate to grant injunctive relief at all, it is necessary to be satisfied that an injunction is desirable, and therefore to be satisfied that there is a real threat of imminent harm occurring to the applicant in the future by a repetition of the conduct which has allegedly already taken place. On the material before me, I am not satisfied that there is a threat of imminent harm in the future by either Greenpeace or the Rainbow Warrior further engaging in the conduct complained of in the period of time up to the expiration of the present fishing season - apparently in March of 1998. For that reason I do not regard it as appropriate to grant injunctive relief, either on an interlocutory or interim basis, on the present application at this stage. I do not, however, propose to dismiss the application. As I have indicated earlier, the evidence before me is in a sense preliminary, both because Greenpeace has not had a full opportunity to adduce such material as it may wish to do so, and because the Rainbow Warrior has not been served and has not had the opportunity of putting any material before the Court. There may also be a change of circumstances. At present the evidence is all one way: that the Rainbow Warrior proposes to follow a course which does not involve it returning to the fishing area in which the applicant is operating during the balance of the fishing season. Circumstances may change. If they do, I propose to leave the application alive so that the applicant may at short notice bring it on again. There may be other conduct which is engaged in by Greenpeace or the Rainbow Warrior which may warrant, in effect, a fresh application during the present fishing season which can be conveniently dealt with by the present interlocutory application rather than by a fresh application. I hasten to say that there is no reason at all to apprehend that such conduct will be engaged in during the present fishing season, but it is simply because of the state of the present evidence and its preliminary nature that I think it more appropriate to decline to make the order sought for the reason I have given at present, and to adjourn the application rather than to dismiss it. That course of action will provide the applicant with the opportunity to serve the Rainbow Warrior with the papers when it comes into the Port of Adelaide, or as it otherwise comes into Australian waters during the next few days. Accordingly, I presently decline the orders sought. I do not dismiss the application for interlocutory relief but adjourn it to a date to be fixed with liberty to the applicant or, indeed, either of the respondents to call it on on short notice. I propose to fix a directions hearing as early as is convenient to the parties, but allowing time for the Rainbow Warrior to be served, with a view to relisting the matter for further interlocutory relief, if that is to be pursued, or for directions for the progress of the action generally. The liberty to apply which I will grant to the applicant will extend to calling the matter on for directions at an earlier date than that fixed if it wishes to do so. The formal orders on the application at present are that: 1. the orders sought are declined; 2. the application for interim and interlocutory relief is declined; and 3. the application for interim and interlocutory relief is adjourned to a date to be fixed with liberty to be called on at short notice. I fix a directions hearing generally in the matter for 9.15 am on 27 February 1998. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.