C2006/2795, Transcript of Proceedings [2006] AIRCTrans 907 (25 July 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15392-2

VICE PRESIDENT WATSON

C2006/2795

STOLT NYK AUSTRALIA PTY LTD
AND
MARITIME UNION OF AUSTRALIA, THE ASP SHIP MANAGEMENT PTY LTD
s.496(1) - Appl’n for order against industrial action (federal system).
(C2006/2795)

MELBOURNE

2.02PM, MONDAY, 10 JULY 2006

PN1

MR H DIXON: I seek leave to appear with my learned friend,
MR B MUELLER, for the applicant to the matter.

PN2

MR M BROMBERG: I seek leave to appear for the following persons who are named in the application, the Maritime Union of Australia, Mick Dalman, Warren Smith and Nick Wickham and I seek leave to do so as counsel.

PN3

THE VICE PRESIDENT: Leave is granted in all cases. Yes, Mr Dixon.

PN4

MR DIXON: May it please, your Honour. Your Honour, there have been some developments that have taken place in the last hour or so as a result of which we thought that it would be appropriate if it is suitable to your Honour that I outlined the position as it existed immediately before lunch time today and then I can indicate to your Honour what my understanding is about what the developments were and I then thought it might be appropriate for us to take a short adjournment to allow me to get some additional instructions that are coming from Hobart about the developments which may well affect the manner in which your Honour further conducts the proceedings.

PN5

If that is an acceptable approach to your Honour I will be very brief in my initial outline, although I would seek to tender some relevant documentation.

PN6

THE VICE PRESIDENT: Do you have any objection to that course,
Mr Bromberg?

PN7

MR BROMBERG: No, your Honour. I don’t have an objection. It, I suppose, goes part of the way to potentially resolving a difficulty that I have and the difficulty is I’ve only been involved in the matter for, I think, about an hour your Honour. I think my instructions were a little longer, but certainly not before mid morning today. We are in the process of getting instructions. We’re not in the position to properly respond to anything. We’ve not received any material other than the application. Insofar as our friend can tell us what his case is about and provide evidence in support of it all the better, but it was primarily my intention, your Honour, to try and get some more time in order to deal with what we need to deal with.

PN8

So if my learned friend intends there to be an adjournment that would assist. It may not suffice. We’ll see what happens after the adjournment if your Honour grants it.

PN9

THE VICE PRESIDENT: Yes. Well, I think we should proceed on the basis of your outline, Mr Dixon.

PN10

MR DIXON: If your Honour pleases. Your Honour, the application is made in reliance of section 496 of the Act, which your Honour will recall is in very similar terms, although there’s some differences to section 127 prior to the amendments to the Act earlier this year. The subsection (1) requires your Honour to be satisfied of various matters, particularly that industrial action, that of course is define in section 7 of the Act, by employees referring to the employee as now defined, employee of a constitutional corporation, industrial action that is not or would not be protected action and in our respectful submission the industrial action which has occurred is not protected action and your Honour must be satisfied that it’s either happening or threatened, impending or probable or is being organised and in those circumstances the Commission must make an order that the industrial action stop, not occur and not be organised.

PN11

The application may be made as is set out in section 496(4) out of the Commission’s own initiative, or on the application of a person who is affected. The present application is made by the applicant Stolt NYK Australia Pty Ltd. It is the operator of the vessel the Stolt of Australia and it is seeking to load sulphuric acid in Hobart and so we will seek to show that it is a person who is affected, whether directly or indirectly, within the meaning of subsection (4)(a) of section 496. The other feature which is perhaps different from what was in 127 in subsection (9), it appears that the Commission may make an order that the industrial action stop and in doing so the Commission is not required, does not have to specify the particular industrial action provided it would come, of course, within the definition of industrial action under the relevant section.

PN12

Your Honour, the application is directed at the MUA and various of its officers and also members of the crew who are employed by the ship management company, ASP Ship Management Pty Ltd. That company is described in subparagraph (b) of the grounds of the applicant which was filed yesterday. May I draw your Honour’s attention to subparagraph (b) where it refers to the relationship between that company that is described as ASP and the applicant obtains the services of officers, engineers and ratings under an agreement with Crew Management Services Pty Ltd.

PN13

That company is now called CMS Crew Management Services Pty Ltd and it is a related company and there’s an agreement between ASP and CMS Crew Management for the provision of services pursuant to an arrangement, an agreement with Stolt NYK Australia Pty Ltd, the applicant. The application also seeks to proceed in relation to the ratings who are listed on schedule 1 attached to the application, subject to a deletion and some clarification. May I ask your Honour to turn to schedule 1, which are the names of the ratings the applicant claims have engaged in industrial action.

PN14

By way of background, your Honour, the crew, as is typical in the maritime industry as you’d probably recall, operate on a swing system and so from time to time certain of the crew members leave the vessel and are replaced by others. A limited swing change occurred, or was due to occur, over the weekend and that has an impact on those named in schedule 1. Firstly may we ask your Honour to delete the name of Jason Lee, who is the person fourth named on schedule 1. We understand he’s a trainee and there’s no intention of pursuing any orders in respect of his conduct.

PN15

Your Honour, in respect of the swing changes Mr Andrew Mackay, who is named immediately after Mr Lee, on our instructions was due to leave the vessel, I think it was yesterday or Saturday, one of the days over the weekend and the same was the case in respect of Mr Andrew Shankland, who is the third last named rating on schedule 1. And they were to be replaced by two other employees of ASP Ship Management, namely Mr Martin Coyle, the second named person on the schedule and also Mr Colin Sullivan, the last named person on the schedule. On our instructions, your Honour, Mr Coyle and Mr Sullivan did not present to the master on the vessel as was anticipated and as a result Mr Mackay and Mr Shankland were not relieved. But as they stand at the moment neither Mr Coyle nor
Mr Sullivan had presented and indicated whether they will join in in industrial action that occurs or is ongoing. It’s a matter that may have to be addressed, depending on the events as they unfold. Your Honour, has your Honour had an opportunity of reading any of the papers?

PN16

THE VICE PRESIDENT: Yes, indeed.

PN17

MR DIXON: Yes.

PN18

THE VICE PRESIDENT: Yes, I’ve read the application.

PN19

MR DIXON: Thank you. Your Honour will see that there has been a - the issue arises as a result of an attempt by the vessel Stolt Australia to take on a load of sulphuric acid that is produced by Zinifex in Tasmania as a by-product of it’s manufacturing process. The arrangements are that the applicant has entered into a spot charter party with a corporation called Interacid. Interacid has entered into an agreement with Zinifex to acquire and deliver the acid and for that purpose the Stolt Australia is being required to take on board the load in Hobart and deliver it to Port Hedland where there’s customer that separately may be affected by the outcome.

PN20

THE VICE PRESIDENT: Is Stolt engaged by Zinifex, is it?

PN21

MR DIXON: Stolt is engaged by Interacid. Stolt has a spot charter party agreement with Interacid and Interacid has a separate agreement to acquire the sulphuric acid from Zinifex. So Stolt’s obligation, your Honour, is to check on board approximately between eight and a half and roughly nine thousand metric tonnes of sulphuric acid and to load and proceed as promptly as is available to it to deliver that product at Port Hedland. On our instructions, your Honour, as far as Zinifex is concerned the conduct, as the evidence will show if it needs to, the inability of Zinifex to load sulphuric acid, which is a by-product of it’s main refinery operations, causes significant production problems for Zinifex.

PN22

It has a limited storage capacity for sulphuric acid. Its capacity does not accommodate ongoing production without this load being removed from its storage capacity onto the vessel and it has, as a result of the industrial action, had to cut down on it’s production in order to avoid that eventuality at significant cost to Zinifex. There is also, of course, significant cost to the applicant. The applicant wishes to utilise the vessel and the applicant and its parent bodies wishes to utilise the vessel in international sea trade and it’s intention to do so immediately after performing the spot contract that it has with Interacid, it incurs daily operating expenses of some $42,000.

PN23

Those are hire costs of the vessel, which itself is on hire, ship management and on costs and also operating costs. And, of course, it loses the revenue if it is unable to load the cargo and deliver it to the customer in Port Hedland.

PN24

THE VICE PRESIDENT: Do you say, Mr Dixon, that Zinifex has already cut back it’s production?

PN25

MR DIXON: It has, your Honour, on our instructions.

PN26

THE VICE PRESIDENT: Even though the vessel docked on Saturday, I believe?

PN27

MR DIXON: It was due to start - on my present understanding for the position of Zinifex an assessment was made as a result of this that steps had to be taken that you can’t cease production - if your Honour would just bear with me for a moment. It took the steps in order to minimise the risk associated with exceeding it’s storage capacity and it reduced its running capacity, daily capacity, particularly on the latter parts of Saturday and Sunday in order to avoid the eventuality which I referred your Honour to.

PN28

Your Honour, the relevant employees employed by ASP Ship Management Pty Ltd are employed pursuant to a certified agreement certified by the Commission under the name of the MUA ASP Ship Management Stolt Australia Sea Farers Agreement 2004. It’s referred to in subparagraph (c) of the grounds and we would seek to tender that document if the Commission pleases.

EXHIBIT #D1 MUA ASP SHIP MANAGEMENT STOLT AUSTRALIA SEA FARERS AGREEMENT 2004

PN29

MR DIXON: Your Honour, I also seek to tender evidence of the incorporation of some of the companies that I’ve been referring to. Firstly ASP Ship Management Pty Ltd.

PN30

THE VICE PRESIDENT: So this is an Australian Securities and Investments Commission extract in relation to?

PN31

MR DIXON: ASP Ship Management Pty Ltd.

PN32

THE VICE PRESIDENT: Yes.

EXHIBIT #D2 ASIC EXTRACT FOR ASP SHIP MANAGEMENT PTY LTD

PN33

MR DIXON: Your Honour, may I also seek to tender the Australian Securities and Investments Commission current extract for the corporation CMS Crew Management Services Pty Ltd.

EXHIBIT #D3 ASIC EXTRACT FOR CMS CREW MANAGEMENT SERVICES PTY LTD

PN34

MR DIXON: May I also tender, if your Honour pleases, the Australian Securities and Investments Commission current extract of incorporation in respect of the applicant, Stolt NYK Australia Pty Ltd.

EXHIBIT #D4 ASIC EXTRACT FOR STOLT NYK AUSTRALIA PTY LTD

PN35

MR DIXON: Your Honour, the communications between the ratings and their employer has taken place in a number of respects concerning the industrial action through the master of the vessel, Captain Paul Webster. And Captain Webster has, as part of his duties and the requirements under the Navigation Act made entries into the ship’s log book which are required by law or made at the master’s discretion. He has made relevant entries after he commenced on board himself on 8 June for the period 8 July to 10 July, those entries being made on the 7th through to the 10th.

PN36

And we have a photocopy of the master’s log book of the relevant extracts which we seek to tender.

PN37

MR BROMBERG: Can I just reserve our position on that, your Honour?

PN38

THE VICE PRESIDENT: You can Mr Bromberg, yes.

PN39

THE VICE PRESIDENT: We might mark this document for identification purposes only at this stage.

PN40

MR DIXON: If your Honour pleases.

MFI #1 COPY EXTRACT OF MASTER’S LOG BOOK

PN41

MR DIXON: Your Honour, Captain Webster is on stand by to verify the contents if need be, but things may not require that as I indicated later. There seems to be an error on the first entry date because the details of the occurrence reflect assumption of duty on 8 July. Your Honour, I won’t go to all of this in some detail, but may I just highlight the relevant passages for your Honour. Essentially three of the ratings are those listed at about point 4 on the first page that Mr Muir, Mr Mackay and Mr Shankland - I’m sorry, Mr Stolphes - that’s S-t-o-l-p-h-e-s - advised that they were ship delegates for the members listed.

PN42

They were refusing to remove the manifold blank so that the ship could load her cargo of sulphuric acid. Your Honour, that is a device on the top of the ship that is screwed down, bolted down on a flange that effectively has to be removed to which the onshore loading pipes are added. And you will note that they were refusing to remove, despite instructions to do so and they, as set out on the second page, provided the master with their reasons for doing so concerning the replacement of the crew with a foreign crew.

PN43

The background to the matter, your Honour, is that the vessel is being removed from the licensed Australian trade and is going to be redeployed in the overseas international trade and it will be re-flagged and re-crewed for that purpose and that has arisen as a result of it’s inability to be properly utilised with sufficient work in the Australian trade. The evidence will be, however, that the employees of ASP employed by that company within the management of a number of fleets has identified suitable positions within it’s client’s fleets to which the affected sea farers can be re-deployed.

PN44

Your Honour, the balance of the master’s log indicate that there were other members of the crew who were prepared to undertake the loading, but you will see from the entry of 9 July towards the top of page 3 that such a course was objected to by the delegates who spoke on behalf of all the ratings that they would not let that happen. And the balance of the entries then show a number of repeated requests for the deck hands, or ratings, to perform their duties. They were prepared to perform other duties, but refused to perform a vital duty, which of course was holding up the vessel, holding up Zinifex loading and is causing significantly adverse impact on Stolt, the applicant, and Zinifex on a wider basis.

PN45

The requests were repeated and you will note that similar requests were made on 10 July and the answer was still no. That appears on, I think, the second last page. There’s also a visitor’s log. I think the entry to which I was referring your Honour is the one that at the top of the page has:

PN46

Master responded. I can’t answer that question. The answer is still no. Refer back to original reasons given.

PN47

THE VICE PRESIDENT: That’s the last day of the document, the last page of the document on the one that I have.

PN48

MR DIXON: Yes. I may have .....

PN49

THE VICE PRESIDENT: There is a visitor’s log earlier on.

PN50

MR DIXON: I think it’s the top of the last page that’s headed:

PN51

Master responded. I can’t answer that question.

PN52

THE VICE PRESIDENT: Yes, I can see that.

PN53

MR DIXON: Yes. That’s right, that’s the page you’re on.

PN54

THE VICE PRESIDENT: Mr Dixon, are you aware how long it would normally take to move the manifold?

PN55

MR DIXON: It’s a task that will take an hour or so to prepare. I’m sorry, your Honour. I’m instructed that removing the actual item would take some minutes, or a very short period of time, but the whole preparation period for loading about an hour or so. And it is that issue that has given rise to some developments. The loading process is due to take about 12 hours if it gets underway and runs smoothly without any technical hiccup as we understand the position, your Honour. And once the loading, if it were to proceed, once the loading is complete there is no reason from the ship’s perspective as to why it can’t sale immediately and the schedule is that it must sale to Port Hedland and once it has discharged its cargo at Port Hedland it will sail to Singapore where it will be re-flagged and
re-crewed in accordance with the company’s present intentions.

PN56

Your Honour, some affidavits of service were prepared and may I hand those up, if your Honour pleases. The first one is from the solicitor for the applicant,
Ms Linden, deposing to the filing of the documents and faxing of them yesterday afternoon and also in paragraph 4 the service of the notice of listing this morning. The master of the vessel undertook to provide the application and notice of listing to the ratings and has prepared a short statement that you can confirm, if necessary, of that occurring at about between 10 and 11 o'clock this morning.

EXHIBIT #D5 AFFIDAVIT OF SERVICE OF MS LINDEN
EXHIBIT #D6 STATEMENT OF PAUL WEBSTER

PN57

MR DIXON: Your Honour, as I mentioned earlier just prior to us coming to the Commission there was some developments which suggested that work, or some work, of the relevant kind may be forthcoming or being started. We were not in a position to finalise the instructions. May I have your Honour’s leave to have a short adjournment to obtain further instructions as to precisely what has happened in that regard? It may obviously impact on your Honour’s satisfaction about certain matters and also about how the matter might be dealt with going forward. We probably would need about 10 minutes if that is a convenient course.

PN58

THE VICE PRESIDENT: Yes. Mr Bromberg, do you have instructions on matters of the nature that justice grant?

PN59

MR BROMBERG: No, your Honour. None whatsoever.

PN60

THE VICE PRESIDENT: Are you able to obtain instructions if I were adjourn the matter for 10 or 15 minutes?

PN61

MR BROMBERG: I don’t know that, your Honour, but I'll certainly try.

PN62

THE VICE PRESIDENT: Yes. Well, I think that will be helpful, especially in relation to the potential for that initial work to be undertaken to allow the loading to occur and it would be useful to understand the position of your clients in relation to that. The industrial action that is alleged to be occurring does go beyond the allegation in relation to that conduct, but that seems to be an immediate task that is alleged to be subject to a refusal as well as a ban of others undertaking the work.

PN63

MR BROMBERG: Yes. I can tell your Honour now my instructions are quite clear that my client’s not involved in any industrial action, but I will make a phone call, your Honour, and find out about any recent events and try and give your Honour the fullest instructions I can when we return.

PN64

THE VICE PRESIDENT: We will adjourn. You only need 10 minutes,
Mr Dixon?

PN65

MR DIXON: I think that will be sufficient. Thank you, your Honour.

PN66

THE VICE PRESIDENT: We’ll adjourn for 10 minutes.

<SHORT ADJOURNMENT [2.37PM]
<RESUMED [2.51PM]

PN67

THE VICE PRESIDENT: Yes, Mr Dixon.

PN68

MR DIXON: Thank you, your Honour. We appreciate the opportunity your Honour afforded us. Your Honour, I’m instructed that between one and 2 o'clock this afternoon the union delegates, on behalf of all the ratings, approached the master and also the representative from Blake Dawson Waldron on the vessel and indicated that there may be a preparedness to return to work if certain concessions were made. What then occurred was that the ratings were asked for an undertaking to be given to the applicant, Stolt NYK Australia Pty Ltd, and also to their employer ASP Ship Management that they would not engage in industrial action and would work as directed under their articles of employment until the empty Stolt Australia reached Singapore and, if applicable, they work as charged from the vessel, but of course that’s not their employment.

PN69

I’m instructed that at least the gist of the response was that the relevant crew members would not sign anything. I beg your pardon, your Honour, I should put that differently. They indicated that the thing they sign are their articles of agreement with their employer. They would not sign any undertaking, but they then announced that they would return to work. And on our instructions - will your Honour just bear with me a moment. On our instructions the necessary steps have been taken to facilitate the connection of the sulphuric acid so that the loading process and the preliminary activities that are required for the loading process have commenced.

PN70

My present instructions are that, absent any technical hiccup, the loading would take approximately 15 hours. Your Honour, the role of the deck hands, or ratings, doing the loading process is one of observing on the deck during loading, but at the end of the day the hose is disconnected with the assistance of shore based employees of Zinifex and then the vessel is made ready for departure. Your Honour, in those circumstances, subject to your Honour’s view, it may be appropriate that the matter stand over to determine whether the task that is being carried out is carried out in accordance with the instructions of the master and in accordance with the employee’s employment.

PN71

It may be that your Honour would be prepared to have a report back either in writing, or at some stage take the view that the matter stand over generally until the voyage is completed, subject to liberty to apply on short notice in the event that there is any further industrial action of any other kind. There is, of course, the real potential that some of the difficulties might arise for some reason if the employees wished to maintain their opposition when the vessel gets to Port Hedland, but there is no evidence of that at all at the moment that that is a probability. And for those reasons we would ask that the matter stand over so that one can determine whether the loading is going to take place and monitor the position as it goes forward.

PN72

THE VICE PRESIDENT: Yes. The removal of the manifold blank, being the hour long task that appears to have commenced or occurred, then there is the monitoring function of the ratings while the loading occurs.

PN73

MR DIXON: And then there is some lesser function at the end of that function because, as I understand it, the shore based employees, they have a role in the disconnecting of the hose and replacing of the manifold, although the deck hands, the ratings, would be at least in part involved in that process.

PN74

THE VICE PRESIDENT: And is there a question as to whether Mr Coyle and Mr Sullivan present for work for the purposes of sailing?

PN75

MR DIXON: That question remains unresolved. Calls were made, as I understand it, during the break to determine what their position is. It seems likely that the two ratings that were due to leave may now leave the vessel and others would come on, but that issue hangs in the air because we don’t know what stance they will take if the two were due to come on because the delegates, it’s not been apparent, your Honour, if they’ve been speaking on their behalf as well.

PN76

THE VICE PRESIDENT: Mr Bromberg, are you able to shed any light on the activities and intentions of the MUA and it’s members?

PN77

MR BROMBERG: No, your Honour, because I’ve spoken to my instructor as I indicated I would, your Honour, and my instructor knew nothing whatsoever about any recent developments made on appraise of these matters, your Honour, at the same time that you’ve been appraised of them. I’ve got no reason to doubt them, but I just don’t know one way or the other. I have asked my instructor to call back and I’m hoping that that will occur in the next five minutes, but I’m afraid I can’t enlighten your Honour any further. I see the practical force of what my learned friend suggests, your Honour, but there’s one thing that I am concerned about and that is time is running and my clients wouldn’t want to be in a position where, in essence, time ran to their prejudice in terms of their capacity to address the matters that they want to address.

PN78

In circumstances as I’ve indicated, your Honour, that my instructions are pretty clear that the clients I act for are not involved in the industrial action. So I wonder if your Honour could stand the matter down so that I can get some instructions about what my friend proposes. We may even be able to come to some agreement between us as to what should happen. There may be a way of addressing any potential prejudice that we have a concern about.

PN79

THE VICE PRESIDENT: You indicated that the prejudice might be that time is running and that there’s not an ability to respond in a full manner.

PN80

MR BROMBERG: Yes. We’d be concerned, your Honour, if the matter was stood over, say, until tomorrow and nothing was done and then your Honour might be willing to book a few hours in which to consider the matter in circumstances where the legislation suggests that an interim order has to be made. Now, insofar as that interim order might prejudice our clients, your Honour, without the capacity for my clients to put before you what they have to say, then that might ultimately turn out disadvantageous. So that’s just a concern I have, your Honour. It’s not a concern that I put on instructions because I haven’t had the instructions. I don’t know what attitude my clients would have to the proposal just put to you, but that’s something that I’d want to canvass with him.

PN81

And as I say, your Honour, my suggested course would be that we stand the matter down for a further 10 minutes in order that I can get instructions on what my friend proposes and see if we can come to some practical, sensible arrangement. Obviously if we can avoid wasting any further time we would seek to do that.

PN82

THE VICE PRESIDENT: Well, it wouldn’t seem to be a sensible course to continue today.

PN83

MR BROMBERG: No.

PN84

THE VICE PRESIDENT: The options would appear to be to adjourn the matter generally and allow a written report from all parties as to events and liberty to apply to have the matter re-listed, or the matter be listed for tomorrow morning for a report back and further hearing if necessary. Do you wish to get instructions as to which of those courses is appropriate from your point of view?

PN85

MR BROMBERG: I do, your Honour. I do. One thing I had in mind, your Honour, I’m hopeful that this could be avoided, is that it may be necessary, your Honour, that a direction be made. If we’re at risk of being continued tomorrow it might be necessary for a direction to be made that at least we get all of the evidence that the applicant might seek to rely upon. Now, I don’t want to create unnecessary work, your Honour, and I appreciate that that suggestion may, but I’m also concerned that we come back here tomorrow and we’re in no better position in terms of being able to respond to a case that’s been outlined, but not evidenced in any substantial way.

PN86

So I want to take some instructions about that, perhaps talk to my friend. It may be, for instance, possible, your Honour, to deal with the matter in some other way than standing the matter over.

PN87

THE VICE PRESIDENT: Well, if it’s only 10 minutes you want, Mr Bromberg, and I’ve given the same liberty to Mr Dixon, I'll adjourn the matter until 3.15 and we can address the options at that stage.

<SHORT ADJOURNMENT [3.03PM]
<RESUMED [3.20PM]

PN88

THE VICE PRESIDENT: Mr Bromberg.

PN89

MR BROMBERG: Thank you for the indulgence, your Honour. I think it’s proved productive. Your Honour, I’ve been able to speak to my instructor and I can confirm that it’s our understanding that the crew are working. I don’t have the sort of detail that my learned friend was able to put to you, but nor do I have anything to suggest that any of that was incorrect. Now, your Honour, that leaves the issue of what to do and I must say for our part, your Honour, we’re proceeding - although there may be some argument about it and I don’t want to speak for my learned friend in this respect - we’re proceeding on the basis that the 48 hours are on from this morning when the registry opened.

PN90

Now, I understand that there was a fax forwarded to the Commission at 5 pm Sunday. I’m assuming that nobody was sitting around waiting for it. But in any event working on that assumption, your Honour, we are content for the matter to be stood over, but on the basis that if the applicant seeks to continue against the respondents for whom I appear that all material, all of the evidence it seeks to rely upon be filed and served by way of witness statements and the filing of any other document by 9 am tomorrow on the basis that the parties report back to your Honour at 10. Now, if at that stage, or by that stage, the applicant need not trouble the Commission further, then that report back may well take place, if it’s convenient for your Honour, by telephone report of some sort, rather than an appearance. But we’re in your Honour’s hands.

PN91

If there is a need to come here then certainly we can oblige. And the only other reservation we have from our perspective, your Honour, is to say this. We shouldn’t be taken to be suggesting that we will be ready to respond at 10 o'clock tomorrow morning. We think that’s an appropriate time for a report back, but our capacity to respond may depend, your Honour, on what material is put against my clients and the capacity we have to properly respond to that material. If your Honour pleases.

PN92

THE VICE PRESIDENT: What do you say to that, Mr Dixon?

PN93

MR DIXON: Your Honour, we had that discussion without, of course, appreciating what your Honour’s commitments are tomorrow. But if that’s not an impediment we are content to proceed on the basis of filing any material, additional material, that we would seek to rely upon against any of the respondents by 9 o'clock tomorrow morning. We will be in a position, we ought to be in a position by then to know whether there are any further issues that arise, so our filing of that material has got to be subject to what happens at the last moment, if anything does happen.

PN94

I don’t necessarily agree with my learned friend’s interpretation of the 48 hours, but I don’t think it becomes an issue at this stage because even on the worst case, 48 hours is unlikely to, it takes us through until then, tomorrow. The real issue is how we can cause the least inconvenience to your Honour in respect of if the matter has dissipated or gone away, how we would deal with it, how your Honour would like us to communicate to avoid your Honour having to attend, or us having to attend. But obviously we will, subject to your Honour’s desires and availability.

PN95

THE VICE PRESIDENT: Yes. I think that the matter should be listed for report back at 10 am tomorrow morning and hearing, if necessary. Would it be possible, apart from the further evidence and documents you wish to rely on, for you to communicate to Mr Bromberg’s instructing solicitors and the Commission by
9 am as to whether you wish to proceed, other than a report back, further than the report back, to a hearing and seek orders? And further, would it be possible to indicate on your instructions that nature of any industrial action then occurring by that time? If there’s no industrial action obviously it will be clear from that communication that it will simply be for report back.

PN96

If there is industrial action the parties should be well aware of what you allege to be the case and we can then deal with it and the appropriate hearing of the matter should any industrial action be occurring at that time.

PN97

MR DIXON: If your Honour pleases.

PN98

THE VICE PRESIDENT: Yes. Well, I will make that direction that the applicant communicate in the manner I’ve just described and I'll adjourn this matter for a report back and hearing, if necessary, to 10 am tomorrow morning in Melbourne. This matter is adjourned.

<ADJOURNED UNTIL TUESDAY 11 JULY 2006 [3.27PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #D1 MUA ASP SHIP MANAGEMENT STOLT AUSTRALIA SEA FARERS AGREEMENT 2004 PN28
EXHIBIT #D2 ASIC EXTRACT FOR ASP SHIP MANAGEMENT PTY LTD PN32
EXHIBIT #D3 ASIC EXTRACT FOR CMS CREW MANAGEMENT SERVICES PTY LTD PN33
EXHIBIT #D4 ASIC EXTRACT FOR STOLT NYK AUSTRALIA PTY LTD PN34
MFI #1 COPY EXTRACT OF MASTER’S LOG BOOK PN40
EXHIBIT #D5 AFFIDAVIT OF SERVICE OF MS LINDEN PN56
EXHIBIT #D6 STATEMENT OF PAUL WEBSTER PN56