FEDERAL COURT OF AUSTRALIA Maritime Union of Australia v Geraldton Port Authority [1999] FCA 282 INDUSTRIAL LAW – cause of action in conspiracy – claim for statutory injunction – claim for statutory compensation – whether no case to answer. Valeriani v Gibson [1963] NSWR 1430, discussed Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187, applied Compaq Computer Australia Pty Ltd v Merry [1998] 157 ALR 1, applied MARITIME UNION OF AUSTRALIA & ORS v GERALDTON PORT AUTHORITY & ORS WAG 101 OF 1998 R D NICHOLSON J 18 MARCH 1999 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 101 OF 1998 BETWEEN: MARITIME UNION OF AUSTRALIA First Applicant PETER WINCH-BUIST, PAUL ARTHUR, CLIVE LAURISTEN, STEVE PENNEY Second Applicant AND: GERALDTON PORT AUTHORITY First Respondent B E AND SG BROWN NOMINEES PTY LTD (TRADING AS GERALDTON SHIPPING AGENCIES) Second Respondent ERIC CHARLTON Third Respondent MURRAY CRIDDLE Fourth Respondent JUDGE: R D NICHOLSON J DATE OF ORDER: 18 MARCH 1999 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The claim by the applicants for statutory compensation against the third and fourth respondents be dismissed. 2. Costs be reserved without prejudice to the right of the applicants to contest the appropriateness of any costs order. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 101 OF 1998 BETWEEN: MARITIME UNION OF AUSTRALIA First Applicant PETER WINCH-BUIST, PAUL ARTHUR, CLIVE LAURISTEN, STEVE PENNEY Second Applicant AND: GERALDTON PORT AUTHORITY First Respondent B E AND SG BROWN NOMINEES PTY LTD (TRADING AS GERALDTON SHIPPING AGENCIES) Second Respondent ERIC CHARLTON Third Respondent MURRAY CRIDDLE Fourth Respondent JUDGE: R D NICHOLSON J DATE: 18 MARCH 1999 PLACE: PERTH EX TEMPORE REASONS FOR JUDGMENT 1 This is a no case to answer submission raised on behalf of the fourth respondent. It gives rise in the first place to the necessity for me to exercise the well-established discretion whether or not to compel an election by the party making such a submission. In considering that matter I am assisted by the decision of the Full Court of the Supreme Court of Victoria in Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187 at 237-239 and also by the decision in this Court in Compaq Computer Australia Pty Ltd v Merry [1998] 157 ALR 1. In the latter case Finkelstein J, after reviewing authorities, found them to support the view that when a no case submission is based on some proposition of law that does not require attention to the evidence it will often be the case that the moving party is not put to an election - see Compaq Computer at 8. 2 Having considered those cases and received submissions on the matter, the course which I have decided to take is to rule on the no case submission without requiring the fourth respondent to elect not to call any evidence. 3 My reasons for that conclusion are these: firstly, the way in which the case of the applicants is brought is that it relies substantially on evidence discovered from the respondents, in relation to which the fourth respondent should not be precluded from giving evidence. Secondly, this is an instance where the no case submission on behalf of the fourth respondent is confined to threshold questions of law. Thirdly, the basis for the no case to answer submission emerged only during the opening of the applicants' case and it is on that that the fourth respondent bases the submissions in support of the case. Fourthly, it is alleged on behalf of the fourth respondents that during that opening the applicants have fundamentally altered the basis of the claim as against the fourth respondent and also as against the third respondent. Fifthly, I have in mind that the allegations of conspiracy against the fourth respondent and also the third respondent are grave allegations made against a Minister and former Minister of the Crown and that it is appropriate that the court should take the opportunity to consider an application made on the basis of law as to the sustainability of those allegations without an election being required to be made. 4 The no case submission was directed to three claims in respect of the fourth respondent. The first of those is the conspiracy claim. It is appropriate to set that in the context in which it arises. 5 The statement of claim contains the conspiracy claim in pars 14 to 16. Paragraph 14 makes the allegation that the first, third and fourth respondents have wrongly conspired and combined to injure the applicants by unlawful means defined as "the conspiracy". That is then particularised. In par 15 certain overt acts are pleaded as having been done in pursuance of the conspiracy. In par 16, and particularly relevant to the no case submission, it is pleaded that the conspiracy was entered into for the purpose of injuring the applicants and that purpose is then particularised. 6 In the defence of the fourth respondent there is a denial to pars 14 and 16. As to par 15 there is a limited admission in relation to certain aspects of the pleaded overt acts and otherwise a denial that the fourth respondent did any of the overt acts in pursuance of any conspiracy or at all. Furthermore, it is pleaded that if he did any of those acts they were not done with his knowledge or consent, nor did he in any way authorise or connive at the same. 7 My attention was directed also to the attitude taken in respect of these pleadings in prior interlocutory proceedings when joinder was sought in respect of the fourth respondent. Then senior counsel for the applicants articulated to the court the nature of the unlawful means conspiracy on which the applicants seek to rely as "the other [form of conspiracy] is where the parties agree to take certain steps including unlawful acts with the purpose, but not necessarily the predominant purpose, of injuring the plaintiffs." That submission was made on 18 November 1998. On 16 February 1999 that basis is said to have been reaffirmed by present senior counsel for the applicant in the course of his submissions. 8 My attention has also been directed to the outline of contentions of fact and law filed on behalf of the relevant parties. In the case of the applicants the outline of such contentions filed on 5 March 1999 contains in par 50 the following statement: "It suffices to prove that harm is the natural and reasonable result of the tortious (unlawful) conduct. A result foreseen but not aimed at is sufficient proof of intent to harm and is not to be confused with any inquiry about what secondary objects were hoped to be obtained." In the notice of contentions of fact and law filed on behalf of the fourth respondent it was said in par 14 to 16 in particular, and particularly par 16, that it is an essential and distinct element of the tort of conspiracy in the case of an unlawful means conspiracy being alleged that the purpose of the conspiracy was to injure the applicants. It was there further stated that in the absence of such proof a conspiracy cannot be made out. It was therefore contended that the statement in particular in par 50 of the applicants' notice of contention was not an accurate statement of the applicable law. 9 Paragraph 50 in the applicants' notice was preceded by par 49, which provided that "[a]ll that need be shown is that the acts agreed upon necessarily involve injury." In the fourth respondent's outline it is also contested that that is an accurate statement of the applicable law. 10 When the hearing opened on 11 March 1999 the opening address of senior counsel for the applicants addressed these issues. At page 39 of the transcript he said: "I will say this, your Honour, without embarking upon a legal discussion at this point because it is not appropriate to in opening: again we say that for the purpose of presenting evidence in this case, we do not set out to show that Mr Charlton or Mr Criddle in terms set out to injure any particular person. It will be the applicants' submission at the end of the case that what each of those gentlemen did, however, was to consciously pursue a course of conduct which if properly understood is to be characterised as unlawful and which inevitably produced the consequence of injury; that is, it was the obvious consequence that would flow from the implementation of their wishes and the direct consequence of the implementation of the unlawful conduct was that both the applicants specified and the other groups of members identified in the pleadings would suffer injury so as to give rise to the tort that has been pleaded." In addition at page 37 of the transcript he stated: "It is not necessary for any cause of action that's raised in the pleadings for us to establish that, nor is it necessary for us to establish that board members knowingly contravened the federal legislation or the state legislation. What we have to establish, your Honour, in the case of each respondent was aware of the material facts which constituted that contravention"" The submissions for the fourth respondent are grounded on the effect of those statements in opening. It is submitted for the fourth respondent that a restriction or limitation expressed in an opening address will bind a party and properly should do so in this case. 11 Reliance is placed on the authority of Valeriani v Gibson [1963] NSWR 1430 at 1435 for that proposition. The submission is made because it is submitted on behalf of the fourth respondent that, properly understood, the passages of the opening to which I have referred constitute a restriction or limitation of the case of the applicants as put either in the pleading or in the notice of contention and a restriction or limitation of such a nature that it no longer provides any proper basis on which the case against the fourth respondent can be maintained in law. 12 Turning to the reasoning of the Full Court of the Supreme Court of New South Wales in Valeriani at 1434, the Court being constituted by Herron ACJ, MacFarlan and Nagle JJ, their Honours said: "In Chitty's Archibald's Practice, 11th ed. 1862, p.387, the learned author says in reference to counsel's opening: "The senior counsel for the party who has the right to begin, after the opening of the pleadings by the junior counsel for the plaintiff, states the facts the circumstances of the case to the jury, the substance of the evidence he has to adduce, and its effects in proving the case stated, and he remarks upon any points of law on which, together with the matters of facts, the jury will have to found their verdict. Counsel should not state facts which he cannot go into evidence to prove. He is not generally very strictly confined to the case opened by him; though, of course, any misstatements made by him may prejudice his case with the jury." In Penson v Lee (1800), 2 Bos. & P. 330, at p.333, Chambre, J., said: "Some inconvenience may perhaps arise from not stating the whole case to the jury in the opening; but justice is often better obtained by not holding the counsel too strictly to the statements in the opening." In Halsbury's Laws of England, 3rd. ed., vol.3, the learned author says: "The object of an opening is to give the jury a general notion of what will be given in evidence. Counsel in opening states the facts of the case, the submission of the evidence he has to adduce, and its effect on proving his case, and remarks upon any point of law involved in the case." This statement, we think, in general terms accurately states the object and limits of an opening but we do not think it can be inferred from it that counsel is bound by everything he says. There may be exceptional cases in which counsel in his opening address specifically limits his case to a narrow issue or issues and undertakes not to rely upon other and different issues of fact or of law. But these cases in our experience are rare at nisi prius." I note that in that passage the court was addressing an opening in respect of a jury. In addition, it was said by the court that counsel is not generally very strictly confined to the case opened by him. In the passage cited from Halsbury, it is further stated that the object of an opening is to give the jury "a general notion" of what will be given in evidence. The court itself went on to say, having cited that passage, that it did not think it can be inferred from it that counsel is bound by everything he says. The court then went on to identify exceptional cases in which counsel in an opening specifically limits a case to a narrower issue or issues and undertakes not to rely upon other and different issues of fact or of law. It opined that those cases were in its experience rare at nisi prius. It is on this latter passage referring to exceptional cases that the fourth respondents particularly rely. 13 I note that in Bernard C. Cairns' "Australian Civil Procedure", Law Book Company 1985, second edition, page 457, that the learned author said in respect of the decision in Valeriani: "However, this does not mean that a party is strictly bound by all that is said in opening address. If during the course of evidence matters which have not been mentioned in the opening address become relevant, then they are properly before the court and must be considered. Counsel's failure to mention them in opening does not mean that they may be ignored. What the court must do is arrive at a decision on the basis of all the admissible evidence. It then makes the findings of fact, and gives judgment accordingly." In my view, a consideration of what was said by the Full Court in Valeriani and the comments of the learned author confirmatory in relation to it show that I should understand the principle there as one which will only assist the fourth respondent in the event that the fourth respondent can bring itself within the exceptional type of case referred to at the end of the passage which I have cited from the reasons of their Honours at 1435. It is not an authority which supports the bald proposition stated in paragraph 20 of the submissions for the fourth respondent. I therefore turn to the question of the characterisation of what occurred in the opening. 14 On behalf of the fourth respondent it is said that the applicants have now expressly disavowed any allegation that the fourth respondent intended to injure any person, let alone the first applicant or any of the named second applicants. It is submitted that senior counsel's opening for the applicants amounts to a recognition that the applicants cannot establish a fundamental element of the cause of action. 15 Looking closely at what was said in the opening on the two passages upon which the case for the fourth respondent relies, I am unable to accept that submission. Turning firstly to the passage at paragraph 39, there is an express reference there firstly to the tort that has been pleaded. That occurs in the final line and is confirmatory of the relevance of the pleading. Secondly, senior counsel said that the conduct was the direct consequence of their wishes, with the consequence that the tort as pleaded had been made out. Thirdly, there is the fact that senior counsel referred to injury in respect of any particular person. In my view reading the passage at 39 as a whole, it is not capable of characterisation as a disavowal in the sense submitted on behalf of the fourth respondent. 16 Turning to the passage at page 37, there again is a reference to any cause of action raised in the pleadings. Furthermore, the passage speaks of awareness of material facts constituted by the contravention and it refers back to contravention in the pleadings. In my opinion that passage does not support the characterisation in the primary submission made on behalf of the fourth respondent. 17 It follow that I do not consider that what was said by senior counsel in opening on behalf of the applicants did have the effect contended for by the fourth respondents. Furthermore, I do not consider it is one of the exceptional cases referred to in the reasoning in Valeriani. There was no "undertaking" not to rely upon other and different issues of fact or of law. The reference in Valeriani in respect of exceptional cases is a reference to an undertaking and not to a characterisation of what might be said in the course of a lengthy opening. 18 There were a number of matters of law raised on the premise that the opening bound the applicants and that the opening had confined the pleading to disavow any need to prove intention on the part of the fourth respondent. For the fourth respondent it was submitted there was no case to answer because the weight of authority is overwhelmingly such as to require the applicants to establish that the agreement or combination was made for the purpose of injury to the applicants and constructive intention is not sufficient. Furthermore, it was submitted, the formulation relied upon in the applicants' notice of contention is said to be in error of law, being based on a faulty headnote in Latham v Singleton [1982] 2 NSWLR 843 rather than the reasons for judgment at 872. 19 For the applicants attention is drawn to a number of authorities said to be to different effect on the elements of the cause of action in conspiracy on the issue of intent. 20 As the premises on which these contentions are advanced are not accepted by me I do not at this time seek to address them as issues of law. I appreciate, however, that they may be issues that will require addressing both by the applicants and in the interests of the fourth and third respondents. 21 For these reasons I am of the view that the no case submission submitted on behalf of the fourth respondent does not succeed in relation to the claim for conspiracy against that respondent. 22 There was also a no case submission advanced in respect of the statutory injunction claim as against the fourth respondent. That is a claim which derives from par 34 of the statement of claim. That paragraph alleges: "By virtue of the matters raised in paragraphs 14, 15, 16, 17, 18, 19, 20, 28, 29, 30, 31 and 32 the conduct of the respondents Mr Charlton (until July 1998) and Mr Criddle thereafter, has caused, contributed to, encouraged and/or influenced and continues to cause, contribute to, encourage and/or influence a contravention or contraventions of section 298K of the Workplace Relations Act 1996." The fourth respondent has submitted that it follows from considerations to which I will now refer that that claim cannot now succeed. The first is the limited and confined nature of senior counsel for the applicants' opening which it is said contains the concessions relied upon in transcript pages 39 and 37. Further, it is said that there was a concession that the fourth respondent has not given any relevant direction to the first respondent and that there is an absence of any evidence that the fourth respondent intends to give any such direction. 23 It will follow naturally from the conclusion which I have already reached that I do not consider that this submission can succeed. Firstly, the opening is not, in my view, capable of being characterised in the manner in which it is necessary to be characterised for the fourth respondent's submissions to succeed. It is not, in my view, as limited and confined as the fourth respondent would have. Furthermore, I do not consider that the concession in relation to knowledge and the absence of evidence in relation to any intention to give a direction can be conclusive of the wide allegations made in par 34 which are directed to causation, contribution to, encouragement, influence and a continuation of those activities. 24 For those reasons I do not accept the no case submission in relation to the statutory injunction claim. 25 I note that a no case submission was also made on behalf of the fourth respondent in respect of the statutory compensation claim against that respondent. That submission has been conceded in favour of the third and fourth respondent and orders should be made accordingly. I certify that the preceding twenty‑five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson Associate: Dated: Counsel for the Applicants: Mr R Redlich QC with Mr W Friend and Mr P Rozen Solicitor for the Applicants: Dwyer Durack Counsel for the First Respondent: Mr R L Le Miere QC with Mr S B Ley Solicitor for the First Respondent: Freehill Hollingdale & Page Counsel for the Third Respondent: Mr K J Martin QC with Mr C Sweeney Solicitor for the Third Respondent: McCallum Donovan Sweeney Counsel for the Fourth Respondent Mr G Tannin with Mr M Lundberg Solicitor for the Fourth Respondent Crown Solicitor for the State of Western Australia Date of Hearing: 17 March 1999 Date of Judgment: 18 March 1999