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Federal Court of Australia |
Last Updated: 26 July 2002
Australian Competition & Consumer Commission v The Maritime Union of Australia [2001] FCA 1549
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v THE MARITIME UNION OF AUSTRALIA, DERRICK NEWLYN, MICHAEL O'LEARY AND JAMES BOYLE
N 358 OF 2000
HILL J |
5 NOVEMBER 2001 (Corrigendum dated 25 July 2002) |
SYDNEY |
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
N 358 OF 2000 |
BETWEEN: |
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT |
AND: |
THE MARITIME UNION OF AUSTRALIA FIRST RESPONDENT DERRICK NEWLYN SECOND RESPONDENT MICHAEL O'LEARY THIRD RESPONDENT JAMES BOYLE FOURTH RESPONDENT |
JUDGE: |
HILL J |
DATE: |
5 NOVEMBER 2001 |
PLACE: |
SYDNEY |
1 In paragraph 1 delete the word "Commissioner" and insert the word "Commission".
2 The words "Jiang Qiang" should be replaced with "Jian Qiang" in paragraph 3 lines 2, 5, 8 and 10.
I certify that the preceding two (2) numbered paragraphs are a true copy of the Corrigendum to Reasons for Judgment herein of the Honourable Justice Hill. |
Associate:
Dated: 25 July 2002
Australian Competition & Consumer Commission v The Maritime Union of Australia [2001] FCA 1549
TRADE PRACTICES - policy of Maritime Union of Australia that shore-based labour be used to clean foreign vessels discharging and taking on cargo in an Australian port - three vessels sought to use crew to clean holds emptied in the Port of Adelaide while at sea - each vessel plied between Australian ports and ports overseas but loaded and/or unloaded at Australian ports - departure of each vessel delayed by formation of picket lines manned by members of the Maritime Union of Australia - whether Maritime Union of Australia contravened s 60 of Trade Practices Act 1974 (Cth) in relation to the incidents concerning two of the three vessels - whether the word "undue"qualifies the word "coercion" in s 60 - meaning of the words "harassment" and "coercion" considered - whether person engaging in harassing or coercive conduct must be the same person as supplies the goods or services referred to in s 60 - whether conduct complained of was "in relation to" international trade - whether individual respondents were agents of the Maritime Union of Australia - whether the second and third respondents contravened s 75B of the Trade Practices Act 1974 (Cth) by being knowingly concerned in or party to a contravention of s 60
TRADE PRACTICES - Maritime Union of Australia admitted it engaged in conduct that contravened s 45DB of the Trade Practices Act 1974 (Cth) - second respondent admitted being knowingly concerned in contravention relating to "Star Sea Bird" - fourth respondent admitted being knowingly concerned in contravention relating to "Anangel Eagle" - course to be taken by the Court in making orders by consent and assessing whether a pecuniary penalty suggested by the parties is appropriate considered
TRADE PRACTICES - standard of proof where proceedings for contravention of s 60 not instituted by way of criminal prosecution but by application seeking declaratory and injunctive relief
WORDS & PHRASES - "harassment", "coercion", "in relation to"
Trade Practices Act 1974 (Cth) ss 6(2)(b), 60, 84(2)
Australian Competition and Consumer Commission v McCaskey [2000] FCA 1037; (2000) 104 FCR 8 considered
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 applied
Joye v Beach Petroleum NL (1996) 67 FCR 275 cited
Strictland v Rocla Concrete Pipes Ltd [1971] HCA 40; (1971) 124 CLR 468 referred to
Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 referred to
W & A McArthur Ltd v Queensland [1920] HCA 77; (1920) 28 CLR 530 applied
The Queen v Wright; Ex parte Waterside Workers' Federation of Australia [1955] HCA 35; (1955) 93 CLR 528 referred to
Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 applied
J D Heydon, Trade Practices Law (2nd edition)
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v THE MARITIME UNION OF AUSTRALIA, DERRICK NEWLYN, MICHAEL O'LEARY AND jaMES BOYLE
N 358 OF 2000
HILL J | |
5 NOVEMBER 2001 | |
SYDNEY | |
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
|
1. The matter be stood over to a date to be fixed to hear any submissions the parties may wish to make on the question of the appropriate orders to be made.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
|
JUDGE: |
HILL J |
DATE: |
5 NOVEMBER 2001 |
PLACE: |
SYDNEY |
3 The applicant, the Australian Competition and Consumer Commissioner ("ACCC"), applies to the Court, inter alia, for declarations that certain conduct of the first respondent, the Maritime Union of Australia ("MUA"), contravened s 45DB and/or s 60 of the Trade Practices Act 1974 (Cth) ("the Act") and that the second, third and fourth respondents, each of whom is an officer of the MUA, were knowingly concerned in certain of the alleged contraventions.
4 The circumstances said to give rise to the contraventions concern arrangements for the cleaning of the holds of three vessels: the "Star Sea Bird", the "Jian Qiang" and the "Anangel Eagle". The respondents admit that the MUA contravened s 45DB of the Act by engaging in conduct for the purpose, and having the effect, of substantially hindering the operators of the "Star Sea Bird" and the "Anangel Eagle" from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia on 6 and 7 March 1999 in respect of the former vessel and 7, 8 and 9 August 1997 in respect of the latter. The second and fourth respondents, in relation to the "Star Sea Bird" and the "Anangel Eagle" respectively, likewise admit being knowingly concerned in the admitted contraventions. All respondents consent to the making of declarations relating to these contraventions and have proffered undertakings to the Court. The MUA consents to the imposition of a pecuniary penalty of such amount as the Court shall assess in respect of these contraventions. The parties have agreed, subject to the Court's overriding power to assess the penalty, that the sum of $75,000 would be an appropriate penalty for each contravention (a total of $150,000). It has been agreed, in respect of these admitted contraventions, that the MUA will pay the costs of the ACCC fixed in the sum of $60,000. The parties have agreed upon a statement of agreed facts relating to these contraventions. In respect of them there remains only the fixing by the Court of a penalty and the making of appropriate orders.
5 The ACCC in its third further amended statement of claim also alleges that the incidents surrounding the "Star Sea Bird" as well as incidents surrounding the "Jiang Qiang" involve a contravention by the MUA of s 60 of the Act and that each of the second and third respondents was knowingly concerned in or party to these contraventions (the second respondent in relation to both vessels and the third respondent in relation to the "Jiang Qiang"). It seeks in respect of these alleged contraventions declarations and injunctions against the MUA and the second and third respondents and costs. The facts said to found the contraventions are, save those that relate to the "Jiang Qiang", the same facts as those admitted to constitute breaches of s 45DB of the Act. They, together with the facts agreed with respect to the "Jiang Qiang", are set out in the statement of agreed facts tendered by the parties. The respondents claim that these agreed facts do not constitute breaches of s 60 of the Act. Submissions have been made to the Court on behalf of the ACCC and the respondents. It now remains for the Court to determine whether the relevant respondents did breach s 60 and, if so, whether to grant the declaratory and injunctive relief sought. The ACCC does not seek in this part of the proceedings to recover a pecuniary penalty from either the MUA or the individual respondents.
6 The proceedings as originally constituted alleged that the respondents had committed other breaches involving s 60 of the Act in conduct relating to other vessels. By agreement the ACCC has amended its pleadings to remove these allegations. They no longer form part of the matters to be resolved by the Court.
THE AGREED FACTS - BACKGROUND
7 What follows in the material set out under this heading is a summary of the statement of agreed facts as tendered to the Court by the parties. Where inferences are drawn from these facts, this is indicated.
8 The MUA is an organisation of employees representing, inter alia, employees of Australian companies which carry on the business of supplying stevedoring services (including line services) and ship cleaning services. It is a body corporate registered under s 191 of the Workplace Relations Act 1996 (Cth).
9 The second respondent, Mr Newlyn, is an employee of the MUA and at all relevant times occupied the position of South Australian Branch Secretary of the MUA. It can be inferred (and the inference was confirmed by senior counsel for the MUA from the bar table) that the MUA is divided into branches not organised on a state basis, but on some other geographical basis. One such branch is the South Australian Branch. Another is the Northern New South Wales Branch.
10 The third respondent, Mr O'Leary, was likewise an employee of the MUA and at relevant times National Organiser of the MUA.
11 The fourth respondent, Mr Boyle, was also an employee of the MUA and at relevant times the Branch Secretary of the Northern New South Wales Branch of the MUA. According to the Rules of the MUA (see rule 37) a branch secretary is the senior executive officer of a branch with power to summon all meetings of the branch executive. His responsibility is without delay to carry out all decisions of special meetings of members of the branch and receive and conduct its correspondence. His role is, among other things, to visit vessels, terminals, wharves etc and look after the business and affairs of the Branch. It seems that the branch secretary also has the normal custody of all books, papers, documents etc of the MUA.
12 Each of the vessels with which the present case was concerned is engaged in bulk trades. The statement of agreed facts sets out the contractual relationships under which bulk carriers operate, being in essence voyage charter parties or time charter parties. It is unnecessary to set out the details agreed. The expressions used in the statement of agreed facts are generally used in the way ordinarily used in the course of maritime trade. The costs of hold cleaning, whether at sea or in port, are allocated among the owner and the disponent owner (or time charterer) in accordance with the relationship which exists. So far as I am able to discern nothing turns in the present case upon which of the parties would be responsible to bear the cost of hold cleaning, whether it takes place in port or at sea.
13 A time charterer is obliged to pay for hold cleaning by shore labour if it orders the cleaning. The time charterer will also pay the cost when cleaning is carried out by the crew, but subject to any agreement to the contrary. It is also responsible for port charges and stevedoring costs. Under a voyage charter party, the ship operator (owner or disponent owner) will arrange and pay for any hold cleaning required at the end of the voyage. A carrier's responsibility will be to ensure that the vessel is cargo worthy and that the holds are cleaned so that cargo is not damaged by lack of cleanliness. Under a normal time charter party there is a clause that states that the vessel must be delivered by the owner or disponent owner to the charterer with clean holds. The vessel may be re-delivered at the end of the charter with uncleaned holds and a stipulated amount paid in lieu of cleaning. The hold cleaning clause normally states that the crew will carry out hold cleaning if requested by the charterer against payment of a set sum per hold cleaned.
14 The party which pays for the cleaning of a vessel's holds is the one which is responsible for the vessel's operation at the time the cleaning is carried out, being either the owner or a time charterer. If the cleaning is carried out at sea while on passage the cost to the owner will be nil. If the cleaning is carried out at sea while on passage but there is a time charterer, the cost to the time charterer will be in accordance with the terms of the charter party, ie a fixed sum per hold. If the cleaning is carried out in port the cost to either an owner or a time charterer will be the cleaning costs plus the delay period (time multiplied by the vessel's daily hire charge).
15 Since at least the early 1970s the MUA or its predecessors have claimed that when a ship is in port for loading or unloading, shore-based labour (which might be expected to be comprised of members of the MUA or its predecessors) is to be used to clean or prepare cargo holds. In about 1992 there was a merger between certain unions, including the Waterside Workers Federation, to form the MUA. Subsequently, members of the Federated Ship Painters and Dockers Union of Australia (other than those employed in ship building and repair) were absorbed into the MUA to form the MUA as presently constituted. The MUA thereafter continued the claims to shipping agents and charterers that hold cleaning work was the right of shore labour. It advised that the MUA would take whatever steps were possible under the law to get cleaning work for shore labour.
16 In November 1995 at its inaugural National Conference the MUA passed a resolution (each of the individual respondents participated in the drafting of it) reaffirming the union's opposition to crews of foreign vessels "performing work which pertains to stevedoring operations including ... cleaning of holds". The resolution said, inter alia:
"Vessels discharging in an Australian port and proceeding to another to load should have the hatches cleaned in the port to prevent such foreign crews performing any cleaning work before loading.Further, where any foreign crews are engaged in any work below decks other than opening and/or closing lids, a protest should be lodged with the ship's master and the union branch immediately notified with a view of having union members perform the work. Such work should include the securing of cargo, erection of shifting boards, removal of securing wires, etc. To this end all shipping companies to be notified of the union position."
17 Mr Newlyn communicated this policy to ship owners and agents by a facsimile dated 21 October 1996 under the heading "Ship cleaning by foreign crews between Australian ports". The facsimile read, relevantly, as follows:
"The South Australian Branch of the MUA has become aware of international flag vessels using ships' crew to clean and wash down hatches at sea, in between Australian ports. This practice will be further monitored and if ships are found to have carried out this work industrial action may occur.This work has traditionally and historically been carried out by the Ship Painter & Dockers, now part of the MUA.
Please inform your principles (sic) and clients that a vessel discharging cargo and taking on an Australian product will be cleaned in the port of discharge."
18 Until 1997 shore labour performed the vast majority of hold cleaning work and disputes about hold cleaning were generally avoided. However, the costs of engaging shore-based labour to perform hold cleaning is high compared with the cost where the work is performed by the ships' crew. Not surprisingly, some ship owners or operators preferred to have ships cleaned by the crew while the vessel was travelling between ports or, where a vessel was required to discharge and load cargo at the same port, by sailing from the port and cleaning the holds while the ship was at anchor. They instructed the ship's master accordingly. Another advantage of off-shore cleaning is that it is generally time efficient and avoids delay at the port of loading or discharge. The result of delay is a direct cost to a time charterer because it may extend the period of the voyage by the delay. Generally speaking there is little difference between the processes and procedures employed in hold cleaning, whether the operation is performed in port or off shore, save that, where it is performed in port, there is access, if required, to equipment such as cherry-pickers and scaffolding.
THE AGREED FACTS - THE "STAR SEA BIRD"
19 During February and March 1999 the "Star Sea Bird" was engaged to carry fertilizer from ports in Northern America to be discharged at Portland (Victoria), Adelaide, Devonport and Geelong. In this period Pivot Limited ("Pivot") was the voyage charterer and Star Shipping (Australia) Pty Ltd ("Star Shipping") the time charterer.
20 On 3 March 1999 the "Star Sea Bird" left Portland having discharged part of its cargo, including part of the contents of hold 4. It arrived on 4 March 1999 at the Port of Adelaide. Beaufort Shipping Agency Company ("Beaufort") was engaged by Star Shipping to supervise while the ship was in the port. It was important that scheduled arrival and departure times were maintained in Adelaide as otherwise the vessel could be delayed until services could be reorganised to attend the vessel.
21 Star Shipping instructed Beaufort that after some of the cargo (all the contents of hold 2 and the remaining contents of hold 4) had been discharged the vessel should leave the port as soon as possible without holds 2 and 4 being cleaned and proceed to other scheduled ports in Australia. Cleaning of the two holds was to be performed while the vessel was at sea. The cost of cleaning, if shore-based labour had been employed, would have been less than $40,000 (a figure relevant to s 4B(1)(b) of the Act).
22 On 5 March 1999, while the vessel was still moored in the Port of Adelaide, a Mr McNeela, who was a member of the MUA and held the unofficial position of "Job Allocator (Ship Services Section)" in the South Australian Branch, a position which involved the allocation of work to hold cleaners, told Mr Holdaway, an employee of Beaufort, that "the two sulphur holds that are being emptied out in Adelaide will need to be washed out in Adelaide and the MUA will be claiming the work". Mr Travis of Beaufort then sent a facsimile to Mr Newlyn, who was also Joint State Secretary of the MUA in South Australia, denying that the MUA had any legal right to demand that holds be cleaned by members of the MUA. Later that day, Mr Newlyn told Mr Travis that "we", presumably the MUA, "are sick and tired of the lies" told (perhaps by Mr Travis) that vessels were continuing overseas when they would voyage to other ports in Australia, the holds having been cleaned in the meantime. He said:
"In the future, as holds become clean in Adelaide, they will be cleaned by the MUA. In relation to the Star Sea Bird, I have not received any instructions from the Sydney office and am yet to make up my mind on the vessel."
23 I would infer that the reference to the "Sydney office" was a reference to the Sydney office of the MUA.
24 On 6 March 1999, some 45 minutes before the "Star Sea Bird" was due to leave the port, a picket line was formed at the main gate to the access road leading to the berth where the vessel was moored. The picket line was manned by persons who were members of the MUA including Mr McNeela and a Mr Ridgeway. The mooring gang rostered on that day to release the lines of the vessel arrived at the berth by launch. I would infer that they did so to avoid having to go through the picket line. The Division Manager of port operations, Captain Shipp, requested the mooring gang to release the lines to the vessel. The request was refused. A member of the mooring gang said that the vessel would be released if the agent gave a letter of undertaking to the union that shore labour would be engaged at the next port to clean the holds. No such undertaking was given. Captain Shipp again requested the gang members to release the lines. They again refused. A member of the gang (a Mr Crompton) said that there might be problems if the gang crossed the picket line. They could be in for a hiding and have their cars damaged. I should say that in allowing the words of the gang member to this effect to be given in evidence I did so not as evidence that gang members might in fact be in for a hiding or have their cars damaged, but rather as evidence of their state of mind, one of fear.
25 A meeting was then held between Mr Ridgeway and Mr McNeela (they are described in the statement of agreed facts as "representatives" of the MUA) and representatives of the ship's charterer and of Ports Corp (SA), the port authority, to discuss a resolution of the dispute. While this meeting was taking place, Mr Crompton rang Mr Newlyn and was told that he should await "instructions" from Mr Ridgeway, who attended the meeting because he was to act in the position of Assistant Branch official of the South Australian Branch of the MUA from 8 March 1999.
26 Shortly after Mr Ridgeway asked Mr Travis whether it was his intention to engage shore-based labour and Mr Travis said that it was not, either in Adelaide or any other Australian port. Mr Ridgeway then said that the picket would remain in force.
27 A short time later arrangements were made with the port authority to have a mooring gang available the following morning to release the "Star Sea Bird". It departed Adelaide at approximately 7.30 am. As a result, Star Shipping incurred a loss of $17,610.62 made up of lost time, pilotage and tug cancellation fees and legal fees.
THE AGREED FACTS - THE "JIAN QIANG"
28 J Lauritzen (Australia) Pty Ltd ("Lauritzen") was the time charterer, Western Bulk Carriers Pty Ltd ("Western Bulk Carriers") was the sub-time charterer for a period ending on or about 2 May 1998, the Australian Barley Board (a government instrumentality or authority) for a period commencing on or about 2 May 1998 was the voyage charterer, and in the period prior to re-delivery to Lauritzen by Western Bulk Carriers Pivot was the voyage charterer of the "Jian Qiang". Western Bulk Carriers was contracted by Pivot to transport fertiliser from the United States of America to be discharged at Port Kembla, Yarraville and the Port of Adelaide. After discharge of the fertilizer and redelivery of the vessel to Lauritzen by Western Bulk Carriers, Lauritzen had contracted to carry barley from Adelaide to Taiwan on behalf of the Australian Barley Board. The vessel arrived in the Port of Adelaide on 26 April 1998 carrying the remaining fertilizer which was discharged that day.
29 Western Bulk Carriers arranged for Beaufort to supervise the vessel while in the Port of Adelaide. The agreement between Western Bulk Carriers and Lauritzen provided that following discharge of the fertilizer Western Bulk Carriers would deliver the vessel with the holds uncleaned at outward pilot in the Port of Adelaide. The holds were to be cleaned by the ship's crew at sea and then the ship was to be returned to load the grain at Berth 27 in the Port of Adelaide. Accordingly, Beaufort made arrangements for the ship to leave the port at 7.35 pm on 1 May 1998.
30 A conversation took place on the morning of 29 April 1998 between Mr Travis and Mr McNeela. Mr McNeela said that he had heard a rumour that the ship would be moving to another berth, Berth 27, in the port to load grain after it had unloaded the fertilizer. Mr Travis, somewhat untruthfully, told Mr McNeela that it was his understanding that the ship would be going to sea as the next fixture was yet to be finalised. Mr McNeela repeated that he had seen that the ship was to be returning to Berth 27. He said that in this case they would be seeing more of each other.
31 On 30 April 1998 Mr Newlyn rang Mr Travis and told him that he believed that the vessel would be loading grain in Adelaide after it had finished discharging its cargo of fertilizer and that he would check this. He said that it had always been the case and had been agreed with Western Bulk Carriers that when a ship completed discharge and was then to load grain the MUA would prepare the ship. Mr Travis replied that the "Jian Qiang" was not a Western Bulk Carriers vessel and that its next business was still to be finalised. He asked Mr Newlyn to put any concerns he had in writing. Later that day Mr Newlyn rang Mr Travis again and told him that he knew the vessel would be loading grain at Berth 27, that the MUA was "finalising its position" but that "we [presumably the MUA] won't let the vessel go".
32 Later the same day Mr Newlyn sent a facsimile to Mr Travis. The facsimile shows the address "M.U.A. - S.A. Branch" with an address in Port Adelaide and is signed by Mr Newlyn as "SA State Secretary". It referred to the telephone conversation that day (presumably the first one) and to the fact that Mr Travis' response was less than honest and reminded Mr Travis that when a vessel discharged in port and required to be cleaned in preparation for a new cargo (namely grain) shore-based labour carried out the work through contractors in Port Adelaide. Mr Newlyn wrote that such work had historically and traditionally been carried out by shore-based labour who were now members of the MUA. He wrote:
"The MUA will defend its right to do this work through whatever legal means are available. As the agent for the `Jian-Qiang' you are aware of this position and I would urge you to inform the master of the contents of this correspondence."
33 A further conversation took place the next morning between Mr Newlyn and Mr Travis in which Mr Newlyn asked Mr Travis what arrangements were in place for cleaning the holds. Mr Travis replied that "our intention is to proceed to sea and clean the holds with the ship's crew".
34 The same day Mr Newlyn told either the shipping agent or the Master of the vessel that getting the crew to clean the holds while it was still effectively in port was a blatant disregard of all the understandings between the MUA, the shipping agents and the charterers.
35 Approximately 35 minutes before the vessel was to depart a picket line formed at the main gate to the access road leading to the berth where the vessel was then moored. It was manned by members of the MUA, including Mr Newlyn. Members of the mooring gang employed by Ports Corp (SA) on that day to release the lines to the vessel were each members of the MUA. When requested to release the lines all but one refused. Two of the gang said that if they crossed the picket line they would be harassed. Another member said that if they did so they would have a problem. Again evidence of what was said by these gang members was admitted not as evidence of the fact that this would happen, but as evidence of their state of mind, ie as evidence of the fear they had of crossing the picket line. One gang member said that he would if instructed by his employer. For this he was called by Mr Newlyn "a dog, slime and a scab".
36 Later that evening Mr Travis contacted Mr O'Leary and told him that Western Bulk Carriers had put the vessel off-hire that evening. He referred to there being a dispute as to which charter party would be responsible for any hold cleaning. There was then a discussion as to what would be a reasonable cost to clean the vessel. Mr O'Leary suggested a contractor, Mathews Bros Pty Ltd, and later, when telephoned by Mr Travis again, advised that the cost would be $20,000. Later a representative of Lauritzen, Mr Kjaer-Petersen, had a conversation with Mr Travis. Mr Travis told Mr Petersen that it was no longer possible for the vessel to leave port and to have its holds cleaned at sea. He said that he had spoken to Mr O'Leary and that it was agreed that the cleaning could be carried out at a cost of $20,000, a figure substantially below the historical cost of hold cleaning in Adelaide. Mr Travis was then authorised by Mr Petersen to make the necessary arrangements with Mathews Bros for the cleaning of the holds by shore-based labour, notwithstanding that Mr Petersen expressed the view that he was not happy that Lauritzen was being forced to pay the cleaning costs. In the result, the vessel was re-delivered on 2 May 1998 with holds uncleaned to Lauritzen and then moved to Berth 27 where it was cleaned by shore-based labour prior to being loaded with barley.
THE AGREED FACTS - THE "ANANGEL EAGLE"
37 In 1997 Star Shipping, the time charterer of the "Anangel Eagle", agreed to carry petcoke from the United States of America to the Port of Newcastle on behalf of the then voyage charterers, Tomago Aluminium Company Ltd ("Tomago") and Western Bulk Carriers KS. It also agreed to carry on the vessel zinc and lead concentrates from Burnie, Tasmania, to Korea and Japan on behalf of Aberfoyle Resources Ltd ("Aberfoyle").
38 On 5 August 1997 the vessel arrived at the Port of Newcastle and from 6 to 8 August 1997 the petcoke was discharged. Star Shipping engaged Adsteam Agency Pty Ltd ("Adsteam") to supervise the vessel while it was in the Port of Newcastle. Star Shipping instructed Adsteam that the vessel was to leave the Port of Newcastle once the discharge of petcoke was completed and was then to proceed to Burnie to load the zinc and lead concentrates. It instructed the crew of the vessel that the holds were to be cleaned at sea while the vessel travelled between Newcastle and Burnie.
39 The practice of the MUA in Newcastle at the time was that a hold cleaning delegate of the MUA would ascertain, by enquiries of shipping agents, stevedores and crew members, whether a ship was intended to be cleaned by the Newcastle shore-based labour. If shore-based labour was not to be used the delegate would then call Mr Boyle, the fourth respondent, and arrange for him to call the shipping agents. Mr Boyle would sometimes warn the agent that there might be a problem to do with the vessel because he knew the hold cleaning members were angry about being denied work.
40 As a result of enquiries, Star Shipping instructed Adsteam to advise the MUA that shore-based labour would not be required as the "Anangel Eagle" would not be cleaning its holds in Newcastle.
41 On 8 August 1997, while the vessel was moored in the Port of Newcastle, Mr Boyle rang Mr Walker, an employee of Adsteam, and asked whether the vessel would be cleaning its holds in Newcastle. He was told that Star Shipping had advised that they did not require any cleaning services and that a "sweep" conducted as part of the discharge of petcoke was sufficient for their purposes. Mr Boyle said that "we" have a problem with the vessel and that it might be prevented from sailing. He said that "we" believe that the holds would be washed at sea. Mr Walker asked if the vessel was going to be delayed because of the problem, but Mr Boyle did not respond. Mr Walker asked that the concerns and position of the MUA be put in writing. Mr Boyle refused to do this.
42 A picket was then formed comprised of members of the MUA some 15 minutes before the vessel was due to leave the port. Soon afterwards, a representative of Adsteam approached one of the members of the picket line and asked him who he was representing or who sent him. He asked whether the picketer intended to prevent the ship from sailing and to advise the names of the picketers. The man replied that the questioner should speak to Mr Boyle for information.
43 The mooring gang (employed by Lovett McCracken & Bray) arrived some time later as the port programme was running late. The gang were also members of the MUA. Shortly thereafter the members of the mooring gang refused to release the lines because members of the MUA who were part of the picket line were seated on, or standing in, the vicinity of the bollards. The members of the mooring gang, the tugs and the pilots all left the wharf soon after.
44 Later that afternoon Adsteam arranged with Lovett McCracken & Bray to provide mooring personnel to release the lines so as to permit the departure of the vessel the following morning, that is, the morning of 9 August 1997. A picket line was again formed manned by members of the MUA. When the new mooring gang arrived they too were members of the MUA. They refused to release the lines because members of the MUA who were part of the picket line were seated on, or standing near, the bollards. The mooring gang, the tugs and pilots left the wharf around five minutes later. Mr Walker then spoke to one of the men who had been sitting on the bollard. The picketer asked at what time Adsteam was going to try again to sail the vessel. Mr Walker said that he was awaiting instructions from the ship's operator. He was told: "Whatever time, day or night, we'll be back."
45 Star Shipping instructed Adsteam to engage a firm to undertake minimal hold cleaning at a cost of $7,000. The vessel sailed for Burnie approximately three hours after the cleaning was completed. It is agreed that on each occasion the picket line was formed to incite and encourage, and did incite and encourage, the mooring gang to refuse to attend and release the lines unless hold cleaning using shore-based labour was undertaken. It was a result of this conduct that the vessel was delayed in leaving the port and that loss, damage and inconvenience was caused to Star Shipping and/or Aberfoyle. The loss incurred by Star Shipping was in the order of $22,000 comprised of the ship's time, cleaning costs, deferment of pilotage, site occupancy, overtime payments and legal advice.
THE RELEVANT STATUTORY PROVISIONS - s 60
46 Section 60 of the Act provides:
"A corporation shall not use physical force or undue harassment or coercion in connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer."
47 As a consequence of s 6(2)(b), s 60 is to be read as if there were an express provision which confined its operation to:
"engaging in conduct to the extent to which the conduct takes place in the course of or in relation to:(i) trade or commerce between Australia and places outside Australia;
(ii) ...
(iii) ...
(iv) the supply of goods or services to ... an authority or instrumentality of the Commonwealth;"
48 Section 4B(1)(b)(i) provides that a person is to be taken to have acquired particular services as a consumer if, and only if, the price of the services did not exceed the prescribed amount, which is $40,000. It is agreed that on each of the two occasions where contravention of s 60 is alleged the price of the shore-based hold cleaning services did not exceed $40,000.
49 Finally, s 84(2) of the Act provides that:
"Any conduct engaged in on behalf of a body corporate:(a) by a director, servant or agent of the body corporate within the scope of the person's actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent;
shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate."
THE INGREDIENTS TO BE PROVED FOR AN OFFENCE UNDER s 60
50 For an offence under s 60 to be made out in the present circumstances it is necessary for the ACCC to prove that:
(i) there was conduct of the corporation, here the MUA ("the conduct"); and
(ii) the conduct consisted of a use of physical force or undue harassment or coercion ("the nature of the conduct"); and
(iii) the conduct was in connection with the supply of services to a consumer; and
(iv) that the conduct took place either in the course of or in relation to trade or commerce between Australia and places outside Australia ("the international trade"); or
(v) the conduct took place in the course of or in relation to the supply of services to the Australian Barley Board which is admittedly an authority or instrumentality of the Commonwealth; and
(vi) the conduct was engaged in on behalf of the MUA by a servant or agent of the MUA within the scope of that person's actual or apparent authority.
51 Each of these matters is contested on behalf of the respondents.
52 In the case of the individual respondents, it is necessary for the ACCC to show that each was knowingly concerned in or a party to the contravention.
53 The history of s 60 is set out in the judgment of French J in Australian Competition and Consumer Commission v McCaskey [2000] FCA 1037; (2000) 104 FCR 8. That case arose in circumstances where, relevantly, the Court was asked to make orders by consent relating to a contravention of the section. Although it was necessary for his Honour to ensure that the proposed orders were within power and appropriate, the case was not one where the question of contravention of the section was really in contest. Accordingly, it may be said that the judgment does not represent a considered judgment arrived at after full argument on the construction of s 60, although it is clear that his Honour did give the matter close attention. To the extent that it is submitted that in one respect his Honour erred, I think that it is appropriate to consider that matter afresh as if it had not been the subject of a previous decision, although I would say that I would treat any statement of his Honour, even if obiter dicta, as meriting considerable respect.
THE STANDARD OF PROOF
54 By force of s 79 of the Act contravention of Part V of the Act (other than certain specific provisions and s 60 is not one of them) is punishable on conviction by a fine which, in the case of a body corporate, is not to exceed $200,000. This is unlike the case where there is a contravention of Part IV of the Act, where contravention will give rise to a civil action for a pecuniary penalty. A criminal prosecution for contravention of Part V necessarily will require proof to the criminal standard, that is, beyond reasonable doubt. However, the present proceedings, so far as they concern alleged contraventions of s 60 have not been instituted by way of a criminal prosecution. Rather they are proceedings instituted in the Court for declaratory and injunctive relief. The power of the Court to grant injunctive relief in the event of a contravention of Part V of the Act is to be found in s 80 of the Act. The power to grant declaratory relief on the application of the ACCC flows from s 21 of the Federal Court of Australia Act 1976 (Cth). The proceedings are not criminal, they are civil. They are proceedings for a declaration and injunctive relief. From this it follows that the necessary facts showing a contravention need be proved only on the balance of probabilities.
55 It was submitted that nevertheless, because criminal proceedings could be brought for contravention of s 60, the Court, while applying a civil standard of proof, should do so bearing in mind the gravity of the matters alleged: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. It is important to bear in mind that in Briginshaw Dixon J, as his Honour then was, forcefully made the point that there are only two standards of proof or persuasion, the civil standard of reasonable satisfaction and the criminal standard of satisfaction beyond reasonable doubt. However, the question whether a fact is proved to reasonable satisfaction does not arise in abstract. Rather it arises in the context of the nature and consequences of the facts to be proved. It is for this reason that the gravity of the allegation may impact upon whether a fact has been proved to the standard of reasonable satisfaction: see Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712 per Dixon, Evatt and McTiernan JJ.
56 It may be accepted that an allegation of the use of physical force, undue harassment or coercion is a serious allegation. The seriousness of the allegation (its gravity) will, of necessity, play a part in the application of the ordinary civil standard of proof. But that is not to say that the ACCC is required to prove its case beyond reasonable doubt, or that the drawing of inferences which are open will necessarily be unsafe. I accept, in any event, that it is appropriate here to have regard to the seriousness of the allegations that are made.
57 There is one other general comment concerning the approach which should be taken to the construction of s 60 which I would wish to make. Because, as I have noted, contravention of the section can give rise to a criminal prosecution, and a substantial fine, it is appropriate in the event of ambiguity or doubt arising in the construction of the section to resolve that ambiguity or doubt in favour of the subject. This is so notwithstanding, as Gibbs J observed in Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 576 in a passage endorsed by a majority of the High Court in Deming No. 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd [1983] HCA 44; (1983) 155 CLR 129 at 145 per Mason, Deane and Dawson JJ and Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 at 164 per Gibbs CJ, Mason, Wilson and Dawson JJ (and see per French J in McCaskey at 24), the ordinary rules of construction should be applied to penal statutes and that the old rule that such statutes should be strictly construed has lost much of its importance.
THE CONDUCT MUST BE CONDUCT OF THE CORPORATION
58 Since a corporation can only act through agents, it is appropriate to defer consideration of this first element until attention is later directed to s 84 of the Act.
UNDUE HARASSMENT AND COERCION
59 There is an initial question of construction which falls to be decided. It is whether the word "undue", a word which clearly provides added weight to the word "harassment", qualifies not only that word but also the word coercion. It is this question of construction which it is said that French J may have wrongly decided in McCaskey.
60 There is a question whether the issue of construction was really decided by his Honour at all. In paragraph 44 of his reasons, his Honour seems to distinguish between undue harassment on the one hand and coercion, unqualified by the adjective "undue", on the other. At paragraph 49, by contrast, his Honour refers to the need to consider the term "undue coercion", suggesting thereby that the adjective undue governed both harassment and coercion. I think that his Honour did form the view that the word "undue" qualified "coercion", although it is clear enough that the question did not feature prominently in the decision. It may be noted that in paragraph 53 of his reasons, his Honour refers to a decision of McInerney J in Campbell v Metway Leasing Ltd [1998] ATPR 41-630 under the comparable provision (s 55) of the Fair Trading Act 1987 (NSW), where McInerney J appears to have regarded undue to relate to both harassment and coercion. That decision was an appeal from a strike out order and the present question of construction was not in issue. It adds little to the resolution of the question.
61 There is an obvious ambiguity which the legislature could easily have solved, either by repeating the word "undue" before each of harassment and coercion or listing the word "coercion" before the words "undue harassment". However, neither course commended itself to Parliament. For my part, I am inclined to the view that undue qualifies only harassment and not coercion.
62 The word "harassment" in my view connotes conduct which can be less serious than conduct which amounts to coercion. The word "harassment" means in the present context persistent disturbance or torment. In the case of a person employed to recover money owing to others, as was the first Respondent in McCaskey, it can extend to cases where there are frequent unwelcome approaches requesting payment of a debt. However, such unwelcome approaches would not constitute undue harassment, at least where the demands made are legitimate and reasonably made. On the other hand where the frequency, nature or content of such communications is such that they are calculated to intimidate or demoralise, tire out or exhaust a debtor, rather than merely to convey the demand for recovery, the conduct will constitute undue harassment (see per French J in McCaskey at [48]). Generally it can be said that a person will be harassed by another when the former is troubled repeatedly by the latter. The reasonableness of the conduct will be relevant to whether what is harassment constitutes undue harassment. Like French J in McCaskey at paragraph 47 I get little assistance from cases in the context of sexual harassment where the word has almost taken on a technical meaning.
63 "Coercion" on the other hand carries with it the connotation of force or compulsion or threats of force or compulsion negating choice or freedom to act: see Hodges v Webb [1920] 2 Ch 70 at 85-7 per Peterson J. A person may be coerced by another to do something or refrain from doing something, that is to say the former is constrained or restrained from doing something or made to do something by force or threat of force or other compulsion. Whether or not repetition is involved in the concept of harassment, and it usually will be, it is not in the concept of coercion.
64 It is clear that the word "undue" suggests that what is done must, having regard to the circumstances in which the conduct occurs, extend beyond that which is acceptable or reasonable. It thus adds, as French J observes at paragraph 48 in McCaskey, "an extra layer of evaluation". The word "undue", when used in relation to harassment, ensures that conduct which amounts to harassment will only amount to a contravention of the section where what is done goes beyond the normal limits which, in the circumstances, society would regard as acceptable or reasonable and not excessive or disproportionate. It would, however, be somewhat unusual to qualify the concept of coercion with the word undue. If there is such a qualification it would suggest that the policy behind s 60 accepted that some normal level of coercion or force overbearing choice or will was, having regard to the circumstances in which the conduct occurred, acceptable or reasonable in a civilised society and that it was only where that acceptable level of coercion was exceeded so that the coercion became "undue" that coercion was intended to be prohibited. I note that J D Heydon in Trade Practices Law (2nd edition at [13.620]) likewise is of the view that undue does not qualify coercion. But if undue does qualify coercion it would not seem to add much to it, whereas I am of the view that qualitatively the word "undue" adds the quality of unreasonableness, unacceptability or lack of proportionality to the general concept of harassment.
65 I doubt, however, that the issue of construction plays much of a role in the present case. The formation of a picket line to prevent access to a vessel for the purpose of allowing that vessel to depart, and in circumstances where the picket line is capable of engendering fear in the mind of those in the mooring gang employed to release the vessel for departure and thus prevent the departure from occurring, will constitute both coercion and undue coercion, at least where it is directed at compelling those responsible for the vessel the departure of which is affected to depart from their decision to have the holds cleaned at sea and instead to have the holds cleaned by shore-based labour.
THE CONNECTION BETWEEN THE CONDUCT AND THE SUPPLY
66 There is little room for argument that there is lacking in the present case a connection between the conduct engaged in and the supply of a service, namely the supply by contractors of cleaning services using Australian shore-based labour to the shipping companies responsible for ensuring that the holds of a vessel are cleaned. The motivation of the conduct here is twofold. First, it is to ensure that ship owners, charterers, etc do not leave an Australian port and have holds cleaned by ships' crew while on the water. Second, it is to ensure that the cleaning of the ships is performed by Australian contractors. That cleaning is unarguably the supply of a service.
67 Nevertheless, senior counsel for the MUA sought to argue that it was essential to the operation of the section that the person who engages in the harassing or coercive conduct be the same person as supplies the goods or services of which s 60 speaks. He was forced to concede that this could not be correct, not only because neither the language of the section nor the history of it supports the argument but also because a rational policy behind the section would proscribe not merely the conduct of the person who makes the supply but also conduct of companies related to the supplier, eg, a holding company, a sister company or shareholder. Once it is accepted that the section would need to proscribe conduct of the requisite kind engaged in by entities that are the "alter ego" of the supplier, as it was, it is hard to see how or why the section should be constrained in the way put by senior counsel for the respondents. Conduct of a corporation which was, say, a minority shareholder of the supplier should likewise be proscribed as a matter of policy. Indeed, the policy behind the section would seem to be that there be freedom in the flow of goods and services from conduct of the kind proscribed engaged in by a corporation (or, having regard to the extension of the section to individuals who employ the telephone, post or telegraph to engage in the conduct, individuals). That policy is not given effect to, but is hindered, by reading down the section so as to require a consideration of the relationship between the corporation or individual engaging in the conduct and the unimpeded supply of goods or services to consumers which it is the policy of the section to protect.
68 In my view, if it be assumed that the MUA did engage in the conduct alleged through the agency of a relevant individual, that conduct involved either coercion or undue coercion which had the necessary relationship to the supply of cleaning services by onshore suppliers.
THE RELATIONSHIP BETWEEN THE CONDUCT AND INTERNATIONAL TRADE
69 The principal submission on behalf of the respondents was that there was not the necessary relationship between the conduct complained of and what may, in summary of s 6(2)(b)(i), be referred to as international trade. It was submitted that the relationship was too remote. By way of example, it was submitted that the section could not apply to conduct which affected the supply of goods or services in international trade merely because there was some marginal relationship with that trade but otherwise the conduct had a real and direct relationship to non-international trade. For example, conduct which prevented the supply of pencils to the Australian office of an international shipper might be said in some sense to have a relationship with international trade, but one that would be too remote to fall within the section.
70 It may be accepted that there will always be a question of degree involved where the issue is the relationship between two subject matters. The words "in relation to" are wide words which do no more, at least without reference to context, than signify the need for there to be some relationship or connection between two subject matters: see Smith v Federal Commissioner of Taxation [1987] HCA 48; (1987) 164 CLR 513 at 533 per Toohey J and PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 at 328 per Toohey and Gummow JJ. But the phrase is both "vague and indefinite": see per Taylor J in Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35; (1961) 105 CLR 602 at 620. Like the phrase "in respect of", the phrase "in relation to" will not, at least normally, apply to any connection or relationship no matter how remote: see Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; (1989) 167 CLR 45 at 51 per Dawson J. The extent of the relationship required will depend upon the context in which the words are used.
71 As Beaumont and Lehane JJ said in Joye v Beach Petroleum NL (1996) 67 FCR 275 at 285 in discussing a number of the cases dealing with "relates to":
"... it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice." (references omitted)
72 The context of s 6(2)(b)(i) and in particular the reason why the qualification upon s 60 and other sections was thought necessary and appropriate is to be found in the constitutional underpinnings of the Act.
73 Following upon the decision of the High Court in Huddart Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330, it was clear that attention had to be given to the head or heads of constitutional power upon which a Commonwealth law governing trade practices was based. The later decision of the High Court in Strickland v Rocla Concrete Pipes Ltd [1971] HCA 40; (1971) 124 CLR 468, a case decided by reference to the provisions requiring registration and provision of particulars of certain agreements pursuant to the Trade Practices Act 1965-1969 (Cth) ("the 1969 Act"), the predecessor to the Act, and which disapproved the decision in Huddart Parker made it clear that there were difficulties in the Commonwealth relying at least solely upon placitum (xx) of s 51 of the Constitution to support the validity of laws relating to trade practices (the power to make laws with respect to foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth).
74 The Act, which is quite different to the 1969 Act, while based primarily upon the corporations power is alternatively based on other heads of power, including, through s 6(2), the trade and commerce power (Constitution s 51(i)) and the territories power (Constitution s 122) and, in its impact upon individuals, the post and telegraph power (see s 6(3) of the Act and Constitution s 51(v)). The trade and commerce power operates to support a law which is a law "with respect to ... [t]rade and commerce with other countries, and among the States". Clearly, s 6(2) is intended to ensure that sections such as s 60 will be confined in their operation to either trade and commerce with other countries or inter-state trade and commerce and thus be capable of being supported by s 51(i) of the Constitution.
75 The Constitutional formulation, to be found in the words "with respect to", was not intended to be construed in what Barwick CJ described in Rocla Concrete Pipes in the context of the corporations power as "a narrow or pedantic manner" (at 490). Nevertheless, what is required is that there be such a real relationship between the subject matter of the power and the provisions of the act under consideration as they are intended to operate, that the law "can fairly be described as one `with respect to' the relevant" subject matter of power: see Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 526-7 per Gleeson CJ and McHugh J.
76 When one comes to construe an act which is designedly intended to be within the limits of a particular head of Commonwealth power (and that connection is intended to be shown by the use of phrases such as "in respect of", "in relation to" or "relating to") there is no reason to adopt any different principle of construction. What is required is that there be a connection, which, while direct or indirect, close or even distant, can fairly be described as one which relates to the particular subject matter under consideration which here is (to paraphrase it) international trade. A construction will be adopted which ensures, so far as possible, that the legislation being construed is within power and is not invalid.
77 It is clear from s 6(2) that Parliament did not limit s 60 to the case where the supply of goods or services was a supply in international or interstate trade although, had it done so, such limitation would clearly have ensured validity. It chose a less direct relationship, namely the conduct proscribed. From the language of s 60 it is clear that Parliament legislated relevantly to confine the case where a connection is to be found between the conduct and the supply to one where the conduct had a relationship with international or inter-state trade. On the agreed facts of the present case, the MUA policy is one that is directly aimed at foreign vessels, with foreign crews, seeking to avoid payment of Australian labour to clean holds in an Australian port where loading or discharge of cargo occurs when the work could be done at sea. Each vessel (it may be inferred that they flew foreign flags and had foreign crews) plied between Australian ports and ports overseas but loaded and/or unloaded in Australia. So far as each may have also sailed from one port in Australia to another, those trips were, in any event, in inter-state trade if not in international trade. The present is not a case where the conduct said to be proscribed is directed merely at conduct designed to ensure that a supply of services would take place in Australia (ie cleaning holds) irrespective of what activity the vessel itself might have been engaged in doing. In my view there is a real connection in the present case between the conduct and the activity in which the vessels were engaged. If that activity is properly to be characterised as international trade, then in my view the necessary condition will be fulfilled.
WERE THE SHIPS ENGAGED IN INTERNATIONAL TRADE?
78 It was submitted that even were I to be against the respondents to this point, I should find that the activity in which each vessel was engaged was not trade or commerce between Australia and places outside Australia. The submission depends upon breaking up the activities of each vessel into the journey that each undertook from or to Australia and the activities that took place in Australia, for example, loading or unloading or, even more narrowly, cleaning holds in Australian territorial waters.
79 In my view the submission is misconceived. The concept of trade or commerce is a wide one and not to be broken up into individual components each of which, on its own and without reference to the others, may be seen as a separate activity when, in fact, each of the components forms an indispensable whole of an integrated activity. International trade is not, as the High Court observed in W & A McArthur Ltd v Queensland [1920] HCA 77; (1920) 28 CLR 530 at 546-7 per Knox CJ, Isaacs and Starke JJ:
"confined to the mere act of transportation of merchandise over the frontier. That the words include that act is, of course, a truism. But that they go far beyond it is a fact quite as undoubted. All the commercial arrangements of which transportation is the direct and necessary result form part of `trade and commerce.' The mutual communings, the negotiations, verbal and by correspondence, the bargain, the transport and the delivery are all, but not exclusively, parts of that class of relations between mankind which the world calls `trade and commerce.'"
80 It is without question that stevedoring operations are essential to the importation or exportation by sea of goods in the course of inter-state or overseas trade and commerce: see The Queen v Wright; Ex parte Waterside Workers' Federation of Australia [1955] HCA 35; (1955) 93 CLR 528 at 544. Loading and unloading, the essence of stevedoring operations, are part of the series of acts or arrangements forming international or inter-state trade. Cleaning the holds of a vessel is as much a part of the loading or unloading process as the direct activities themselves are. Holds used in one voyage for transporting fertilizer of necessity must be cleaned before they are used to transport grain. Whether the cleaning is part of the discharge of cargo or the loading of new cargo is not a matter which needs to be decided.
81 On the facts of the present case, the "Star Sea Bird" was still in the course of delivering goods which had been loaded overseas for delivery to Australian ports when its departure from the Port of Adelaide was delayed. The "Jian Qiang" on the other hand had completely discharged its cargo of fertiliser brought from overseas to Australian ports and was to load the new cargo of grain to be transported overseas. Both were at the time the conduct occurred engaged in trade or commerce between Australia and overseas countries.
WERE THOSE INVOLVED IN THE CONDUCT AGENTS OF THE MUA?
82 It was strongly submitted that I should not find that the individual respondents or any of them or anyone else were agents of the MUA acting within actual or apparent authority in the acts which they did. Particularly, it was said that the ACCC had not proven that the second and third respondents or either of them or for that matter any other person acted as agents of the MUA or acted within the scope of actual or apparent authority.
83 First, it should be noted that s 84(2) requires that the conduct in question be engaged in "on behalf of" the corporation. It requires as well that the conduct be engaged in by a director, servant or agent of the corporation or by any other person at the direction or with the consent or agreement of a director, servant or agent of the corporation, within the scope of their authority, actual or apparent. Perhaps what seems a double requirement of agency ensures that there is emphasised that the conduct be undertaken by someone who is able to and does undertake it on behalf of the corporation. The opening words are, as counsel for the ACCC suggests, the touchstone for determining the reach of the deeming provision and the words "director, servant or agent" signify persons who represent the body corporate: Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719 at 739-740. The purpose of the section is to attribute liability to a body corporate for the acts of others. It is intended to facilitate proof of corporate responsibility beyond the position which would otherwise obtain at common law: Walplan Pty Ltd v Wallace (1985) 8 FCR 27 at 36-38.
84 Next it is also important to note that the issue of agency is quite independent of the question whether the individual respondents were in contravention of the Act by virtue that they were knowingly concerned in the conduct. It is not necessary here for the ACCC to show that each individual respondent was the agent of the MUA. Nor is the question of agency limited to the individual respondents.
85 Finally, in the context, the reference to "agent" in s 84(2) is not a reference to a person who, contractually, has power to bind the corporation. It is a reference to a person who acts on behalf of the corporation and in so doing is clothed with actual or apparent authority. The word "agent" is used in the law in a variety of ways: see Nottingham v Aldridge [1971] 2 QB 739 at 751.
86 The key person in the conduct so far as the conduct related to each vessel was Mr Newlyn. Not only was he an office holder of the MUA, with one of the duties of his office being to visit the wharves and conduct the business of the MUA's South Australian branch, he was, as the statement of agreed facts admits, also an employee of it. The MUA's policy was quite explicit and as an office holder and employee he was bound to implement it. As well as having assisted in drafting the resolution giving rise to the policy, Mr Newlyn communicated it to ships' agents and owners. It is clear enough that in writing the facsimile to Mr Travis of 30 April 1998 in connection with the "Jian Qiang", Mr Newlyn was acting for the MUA. Indeed, he gave as his address the office of the South Australian Branch of the MUA and held himself out to be writing on behalf of the MUA and in his capacity as South Australian State Secretary. No suggestion is made in the evidence that he acted without the authority of the MUA in sending that facsimile. And he held himself out to be doing so soon after he had spoken by telephone to Mr Travis and informed him that "we", that is to say the MUA, "won't let the vessel go".
87 It is against the background of Mr Newlyn so acting that I approach first the incident concerning the "Star Sea Bird". Little is known of Mr McNeela, the first person with any connection with the MUA to become involved (on 5 March 1999, the day after the vessel moored at the Port of Adelaide), save that he held an unofficial position with the MUA's South Australian Branch and was a member of the MUA. That would not be sufficient to prove he was an agent of the MUA. However, Mr Newlyn became involved the same day when Mr Travis sent him a facsimile that was followed by a telephone conversation between Mr Travis and himself in which he made it clear that the holds of the "Star Sea Bird" emptied in Adelaide were to be cleaned by members of the MUA. The reference to "instructions" not yet received from Sydney office was, as already noted, a reference to instructions from the MUA's Sydney office. While there is no direct evidence connecting that telephone discussion with the formation of the picket line on 6 March 1999, it is not difficult to infer that the instructions to form the picket line came via Mr Newlyn in his capacity as an officer and employee of the MUA. Mr Newlyn continued to be involved in the incident after the second attempt to release the lines and when Mr Crompton rang him and was told by him to wait for instructions from Mr Ridgeway. It can easily be inferred that Mr Newlyn conferred with Mr Ridgeway and that Mr Ridgeway's stance that the picket would remain in force was a result of Mr Newlyn communicating with him.
88 I have already referred to the evidence of the conversations that took place between Mr Newlyn and Mr Travis on 30 April 1998 concerning the "Jian Qiang" and Mr Newlyn's facsimile of the same day. It was not long after another conversation between Mr Newlyn and Mr Travis on 1 May 1998 that the picket line formed. It is not immaterial to note that all members of that picket line were members of the MUA and that Mr Newlyn had himself joined the picket line.
89 The negotiations which ended with the hold cleaning on the "Jian Qiang" being carried out by Mathews Bros were undertaken by Mr O'Leary. It is, in my view, no coincidence that Mr O'Leary was the National Organiser and an employee of the MUA. I readily infer that Mr O'Leary acted as an agent for the MUA, but in conjunction with Mr Newlyn in the part he played in the incident.
90 I would accordingly find that the ACCC has proved that the conduct in both incidents was conduct carried out on behalf of the MUA by persons, including Mr Newlyn and Mr O'Leary, who were employees and agents of the MUA. I think that it would also follow, having regard to all the circumstances, that Mr McNeela can be seen to have been acting not merely as a member of the MUA, but under the instructions of or otherwise as directed by Mr Newlyn.
WHETHER THE SECOND AND THIRD RESPONDENTS WERE KNOWINGLY CONCERNED IN THE CONTRAVENTIONS OF s 60
91 Little need be said as to the liability of Mr Newlyn and Mr O'Leary. It is a necessary prerequisite for accessorial liability under s 75B, relevantly, that a respondent be knowingly concerned in, or party to, the contravention (see s 75B(1)(c)), that is to say, in the context of being knowingly concerned, that the person have knowledge of the essential facts constituting the particular contravention: Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661.
92 I am satisfied that the acts of Mr Newlyn demonstrate the necessary practical connection between him and each contravention. I have no doubt at all that he had knowledge of all essential facts.
93 The position of Mr O'Leary is different. There is nothing at all to connect him with the incident concerning the "Star Sea Bird" nor is such a connection suggested and it seems he had no involvement with that incident. His involvement with the incident concerning the "Jian Qiang" appears only to be the negotiations with Mr Travis for the cleaning of the holds to be undertaken by Mathews Bros for a fee. It cannot be said that the ACCC has proved that he had knowledge of the essential facts which gave rise to the contravention or, for that matter, that he was party to the contravention, although it is clear that as he did assist in drafting the resolution adopting the policy he would have been aware of that policy and bound to give it effect within the limits of legal behaviour at least.
CONCLUSION REGARDING THE CONDUCT ALLEGED TO INFRINGE s 60
94 I would conclude that the MUA has contravened s 60 of the Act both in respect of the Star Sea Bird incident and the Jian Qiang incident. I would also find that the second respondent, Mr Newlyn, was knowingly concerned in or was otherwise party to both contraventions pursuant to s 75B of the Act.
95 At the suggestion of counsel I would stand the matter over, so far as it relates to s 60, to a date to be fixed to hear any submissions the parties may wish to make on the question of the appropriate orders to be made.
THE s 45DB CONDUCT
96 It is admitted by the MUA that it contravened s 45DB of the Act in respect of the actions taken in relation to the "Star Sea Bird" and the "Anangel Eagle". It is admitted by Mr Newlyn that he was knowingly concerned in the contravention by the MUA of s 45DB of the Act in relation to the Star Sea Bird incident. It is also admitted by Mr Boyle that he was knowingly concerned in the contravention by the MUA of s 45DB of the Act in relation to the Anangel Eagle incident. Having regard to the facts to which I have referred and the sections contravened these admissions were properly made.
97 There remains the question of what penalties should be imposed and orders made. As indicated earlier in these reasons, the parties are in agreement both as to the appropriate penalty and generally as to the orders which it would be appropriate to make.
98 I accept the view stated by French J in McCaskey at paragraph 30 that the Court in making orders by consent in a case such as the present must ensure that the orders are within power and appropriate. In making orders the Court is exercising a public function and must have regard to the public interest. However, I agree too that the Court will not, if the orders are within power, impede settlements between parties legally represented or substitute orders in place of orders (or undertakings) offered where what has been agreed by consent is within the range of appropriate orders.
99 While the question of the quantum of penalty is a matter upon which minds may differ and while it seems to me that the penalty agreed upon is at the bottom of the range, bearing in mind that the conduct engaged in was deliberate and involved the implementation of a policy by the MUA the forced implementation of which was most likely to contravene the Act, I am of the view that the penalty of $75,000 for each contravention is, in all the circumstances, appropriate. In so concluding, I have taken into account that the respondents have cooperated with the ACCC to agree the facts and have accepted that their conduct did amount to a contravention, thereby reducing the expense which a contested hearing would have required. I am likewise of the view that the other orders contained in the draft orders and the terms of the proffered undertakings and statements are generally and in all the circumstances appropriate. I will, however, defer making the orders and receiving the undertakings until hearing any submissions as to the form of orders or other relief which should appropriately be made in respect of the contraventions of s 60 of the Act and any consequential changes that might then become necessary to make having regard to the conclusion I have reached with respect to the contraventions of s 60.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill. |
Associate:
Dated: 5 November 2001
Counsel for the Applicant: |
D M Yates SC with P Renehan and D Godwin |
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Solicitor for the Applicant: |
Australian Government Solicitor |
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Counsel for the Respondents: |
J W K Burnside QC with W L Friend and M G R Gronow |
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Solicitor for the Respondents: |
Maurice Blackburn Cashman |
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Date of Hearing: |
15 and 16 October 2001 |
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Date of Judgment: |
5 November 2001 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2001/1549.html