Part 15: The Litigation Continues
Introduction
We were very happy with ourselves for
having obtained the interim injunctions against the MUA in relation to the
international boycotts and also to have commenced our second set of legal
proceedings against the MUA.
However, we were quite perplexed as
to how Justice North had been allocated to be the judge in relation to these
second proceedings. Given that we had commenced the legal proceedings in Sydney Sydney Newcastle Adelaide Melbourne
Continuing the injunctions
Our first aim after securing our
temporary injunctions was to try to obtain further evidence to justify the
continuation of the injunctions against the MUA. As stated in the last post, we
had obtained injunctions up until 4
June 1998 . Therefore, if we wanted to extend those injunctions, we
had to obtain further evidence which showed a continuing threat from ITF
affiliated unions to vessels loaded in Australia
The process we undertook to obtain
this evidence was to call up the owners of the 23 targeted vessels to find out
whether there was any risk that their vessels may not be unloaded on
arrival at an overseas port. The evidence we were
looking for was a communication from an overseas ITF affiliated union to the
ship owner advising them that their vessel would not be permitted to either
berth or unload when it arrived at a particular overseas port.
We also tried to obtain evidence from
these ship owners about the loss or damage which may result if their vessel was
not permitted to berth or unload. This
loss or damage would usually arise from either the shipping company incurring
addition costs due to delays, such as demurrage and time charter costs, or the
costs associated with food cargoes going off.
We had mixed success in obtaining
this evidence. Some shipowners were only
willing to provide the ACCC with the most rudimentary information. Others did
not want to assist the ACCC at all.
Despite the uneven support received
from various shipowners, the ACCC was able to obtain a respectable amount of evidence
to support its argument that the injunctions should be continued.
On 5 June 1998 , Justice Bryan Beaumont of the Federal Court
accepted the ACCC’s arguments and agreed to continue the interim orders until 11 June 1998 . He also ordered that on
11 June 1998 , there would
be a full interlocutory hearing before Justice North.[1]
We had decided not to pursue further orders against the
MUA requiring them to withdraw any calls for assistance to boycott the Canada
Columbus or Direct Kea following assurances from the MUA that they had complied
with the previous order.
I must admit I never understood why the full
interlocutory hearing was to be heard by Justice North. The orders which the
ACCC were seeking related to the ACCC’s initial legal proceedings which was on
Justice Beaumont’s docket. Justice North was the judge who was allocated to
hear the second set of legal proceedings, which related to the alleged illegal
boycott conduct by the MUA in Newcastle Adelaide
At the time, it was widely reported that the MUA’s
lawyers were keen to have the ACCC’s first case transferred to Justice North’s
docket. The MUA argued that this transfer
should occur because the issues raised in the ACCC’s first set of legal
proceedings were very similar to the matters which Justice North was already
presiding over in the MUA litigation. However,
this submission did not make any sense given that the case which Justice North
was presiding over was the MUA’s conspiracy action against Patrick and the
Howard Government.
In our view, there was absolutely no similarly between
the two cases, in terms of either the relevant legislation or the parties. Even the
fact that the MUA was involved in both cases was not really a similarity given
that they were the plaintiff in one case and the respondent in the other.
Before Justice
North
We appeared before Justice North on 11 and 12 June 1998 to argue that the interim orders should be
continued. Unfortunately, it became
apparent to us almost immediately that it was going to be an uphill battle to extend
our interim orders. It was abundantly clear that Justice North was very
unsympathetic to our position.
The MUA lawyers argued before Justice North that the MUA
had never called on its overseas affiliates to engage in any boycott conduct
and that they were not intending to take such action in the future. Despite the
fact that this submission was against the weight of the evidence, Justice North
appeared to accept it at face value. Indeed,
he did not waste any time telling the ACCC precisely what he thought of our
case:
If there is no present danger of the (MUA) doing what the
regulator fears, then it’s an inevitable conclusion that the ACCC is pursuing
an application that has no real practical purpose. And that could be described as a waste of
public money. [2]
Indeed, Justice North made the comment that the ACCC’s
case was a waste of public money on a number of occasions.
As you can imagine, the media headlines the next day
focused heavily on Justice North’s comments that the ACCC’s case was a waste of
public money. The following is a sample of some of the newspaper headlines
which appeared after Justice North’s comments:
·
ACCC wasting public money: judge [3]
·
MUA boycott battle a waste of money: judge [4]
·
Judge queries ‘waste of cash’ [5]
·
Judge slams action on MUA [6]
During the hearing, the MUA lawyers had also made a
number of serious allegations that the ACCC had withheld evidence from the
court. We did not quite understand how
the MUA lawyers could be making this submission given that it was not an ex
parte hearing and that we were under no legal obligation to advise the court of
any evidence, of which we were aware, which may have conceivably assisted the
respondent.
Despite our view that this particular submission was
without merit and should not have been made, it also appeared to us that
Justice North was leaning towards accepting this submission.
Fortunately, for the ACCC, we had an ace up our sleeve
which we were able use to change the course of the hearing decisively in our
favour.
A few weeks before this interlocutory hearing the ACCC
had sought information from various telecommunications companies under the Telecommunications (Interception and Access)
Act 1979. Under this legislation enforcement agencies, such as the ACCC, were
able to obtain telecommunications data, ie telephone bills, which recorded all
the calls made to and from a particular telephone number.
What we had decided to do was to obtain copies of all the
MUA’s telephone bills, both for its branch offices and for individual MUA
officials in an effort to establish whether the MUA had been in regular contact
with the ITF or any of its overseas affiliates.
I remember spending many hours trying to identify the
owners of the various phone numbers which the MUA officials had called over the
preceding few months. I did this by accessing publicly available reverse telephone
number search programs in the US Europe or the UK
Through these searches, I was able to establish a pattern
of regular communication between a number of the senior MUA officials and their
various overseas counterparts, particularly senior officials of the ITF and
ILWU. In most cases, the MUA official
had used their own personal mobile phone to call their counterpart overseas on
their own personal mobile phone.
It became apparent to the ACCC that this circumstantial evidence
would be quite compelling in debunking the MUA’s arguments that they had not been
in regular contact with their overseas affiliates in order to encourage them to
boycott particular vessels.
I had prepared a lengthy affidavit which spelled out in excruciating
detail the various communications between various senior MUA officials and
their overseas counterparts, including when the calls had been made and the
duration of each call. While the ACCC could not prove what was actually
said during these conversations, the obvious inference from this evidence was
that MUA officials had been inciting their overseas counterparts to boycott the
vessels which had been loaded or unloaded using non-union labour.
Returning now to the interlocutory hearing before Justice
North, one has to understand the position which the ACCC was facing just before
lunchtime on 12 June 1998 .
Justice North had just spent the first day of the
interlocutory hearing (ie Thursday 11 June 1998 ) telling the ACCC that its case was a waste of public money.
He had then indirectly suggested to the ACCC that it
should abandon its case against the MUA because the broader dispute between the
MUA, Patrick and the Howard Government was close to being resolved – as stated
by Justice North:
Can it be right that the court entirely shuts its eyes to
the very possibility that the dispute which excited the regulator’s interest
might be resolved?[7]
Add to this the fact that Justice North appeared to be on
the verge of accepting the MUA’s serious (and completely unfounded) allegations
that the ACCC had withheld evidence from the court, and one can appreciate that
the ACCC was in a very unenviable position.
It was in that context that we decided, just before the
lunch break, to serve on the MUA a copy of my affidavit recording all the
telephone communications which had occurred between MUA officials and their overseas
counterparts.
When we all returned from lunch on 12 June 1998 , the MUA’s whole demeanour had undergone a radical
transformation. Gone was the MUA's pre-lunch swagger - indeed, their whole demeanour had
become downright sheepish.
Furthermore, the MUA had now done a complete back flip on
its earlier position that it would never agree to the ACCC’s demands.
I remember Justice North looking very surprised when the MUA
advised him after lunch that they were now willing to agree to the ACCC’s
demands.
Justice North made the relevant orders by consent and
then congratulated the parties on reaching such a practical solution. The result
of the hearing is best explained in the ACCC’s new release which stated:[8]
The Maritime Union of Australia Australia 10 May 1998 . The Australian
Competition and Consumer Commission has advised the Court that this withdrawal
addresses some of the concerns of the ACCC.
The ACCC's counsel, Mr John Trew, QC, has advised the
Court that it has had concerns at the apparent ongoing communication between
the MUA, the ITF and its affiliates which in the context of the international
boycott of ships suggests the ongoing involvement of the MUA in the alleged
boycotts of non-MUA loaded ships. The ACCC has advised the Court that it is
prepared for the matter to be adjourned and to see whether the MUA's withdrawal
is effective.
The ACCC sought interim orders from the Court to remove the
alleged MUA request for and involvement in international boycotts of those
Australian ships because of its concern for the effect on Australian business
of such boycotts.
The ACCC will be actively monitoring the MUA's activities
in this area and the matter will now proceed to a final hearing of the ACCC's
claim for substantive relief. Justice North congratulated the parties on
reaching a practical resolution of difficult issues at this time.
As is apparent from the second
paragraph above, we could not help alluding, fairly pointedly, to the
evidence which we had obtained concerning the regular telephone communications
between the MUA and its overseas affiliates.
I recall that after the hearing had finished the MUA lawyers immediately approached us in the foyer of the court to ask us how we had been able to obtain the evidence contained in my affidavit concerning the MUA official's communications with their overseas counterparts. Our lawyer, quite nonchalantly, responded to their question with the words:
Haven't you ever heard of the Telecommunications (Interception and Access) Act 1979?
I suspect that from that day on every MUA official made certain to never again call any of their colleagues from the ITF or overseas affiliates using their own personal mobile phones.
Boomerang Ship [9]
One of the most appalling events
during the Waterfront dispute was the fate of the Columbus Canada which was
dubbed the Boomerang Ship in the Australian media.
The Columbus Canada has been loaded
in Australia US New Zealand
The Columbus Canada left Australia 21 April 1998 , loaded
primarily with food, such as frozen and chilled meat, wine and cheese. There was 700 tonnes of meat on the vessel,
valued at around $3 million, and 2300 tonnes of other food products. It was also
one of the first vessels which had been loaded by non-MUA labour to leave
Australian shores. Its first port of
call, after picking up further cargo in New
Zealand Los
Angeles US
On arrival at Los
Angeles New
Zealand
After numerous attempts to unload
the Australian cargo in Los Angeles over a period of 18 days, the owners of the
vessel, the Columbus Line, met with picketers at the Matson Terminal and agreed
that no Australian cargo would be unloaded in Los Angeles. Rather they agreed
to send the vessel back to New Zealand Columbus US
The boycott of the Columbus Canada
caused an outcry amongst the meat industry, business groups,
farmers and the Howard Government. Criticism
of the union’s actions became more intense following reports that some of the
chilled meat on the vessel had started to rot.
The Australian meat industry was
very critical of the actions of the unions due to the damage which this boycott
caused to both the particular exporters whose products had been held up, as
well as to Australia
While the ACCC had made the fate of
the Columbus Canada the focus of its case for interim orders against the MUA in
Australia
[1] Interim injunction, continued, ACCC news
release, dated 5 June 1998 -
http://www.accc.gov.au/content/index.phtml/itemId/87298/fromItemId/378006
[2] MUA
boycott battle a waste of money: Judge, The
Daily Telegraph, 12 June 1998 ,
p. 23
[3] The Canberra Times, 12 June 1998 , p.4
[4] Daily Telegraph, op. cit., p. 23.
[5] Financial Review, 12 June 1998 , p. 3.
[6] Herald Sun, 12 June 1998 ,
p. 6.
[7] Daily Telegraph, op. cit., p. 23.
[8] Maritime Union of Australia, ACCC news
release, 12 June 1998 - http://www.accc.gov.au/content/index.phtml/itemId/87294/fromItemId/378006
[9] The
boomerang ship, Herald Sun,
28 May 1998 , p. 11
[10] Ibid.
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