Maritime Union of Australia v Geraldton Port Authority

REASONS FOR DECISION 1 The applicants bring a notice of motion seeking orders ("the proposed orders") in the following terms: "1. Subject to order 3 of the orders of the Court in this proceeding pronounced 10 February, 2000 ("the orders of 10 February, 2000"): (a) The First Respondent remedy the contravening conduct referred to in order 1 of the orders of 10 February, 2000 by making the employees referred to in order 1 of the orders of 10 February, 2000 available for hire to stevedores (including those licensed to undertake stevedoring of the port by the First Respondent), to undertake stevedoring work, including at berth no.4 on terms including those set out in sub-paragraph (b). (b) Until any further order of the Court, the terms shall include provisions to the effect of, and shall not include anything inconsistent with the following: (i) Payment in respect of each of the employees shall be fixed at the rates operative on 1 December, 1999; (ii) Stevedores shall not be required to obtain or provide personal disability or an accident insurance in respect of the First Respondent's employees; (iii) Stevedores shall not be required to comply with legislation that does not apply to them of its own force; (iv) The practices operating with respect to ordering and cancellation of labour as at 30 November 1999 shall be continued. 2. In this order "stevedore" includes WA Shipwrighting" The orders sought would affect only the first respondent, whom I therefore refer to as "the respondent" in these reasons. As appears from the terms of the proposed orders, they can only be understood against the background of orders previously made by the Court in this proceeding. Defined terms used in prior reasons in this proceeding are used in these reasons. Prior orders 2 On 10 February 2000, final orders ("the final orders") were made in the following terms: "(1) The contravening conduct for the purpose of these orders is the contravention of s 298K of the Workplace Relations Act by the first respondent, altering the position of the second applicants and the MUA members (hereafter "the employees") in their employment to their prejudice for a prohibited reason by prospectively reducing their entitlement to overtime, namely because the employees are and were at all material times entitled to the benefit of the Western Australian Regional Ports Integrated Labour Force (Geraldton Port Authority) Award 1995 and the Geraldton Port Authority Integrated Port Labour Force Agreement 1995. (2) Pursuant to ss 298U(e) and (f) of the Workplace Relations Act the first respondent remedy the effects of the contravening conduct identified in Order (1) hereof by: (a) Making the labour of the employees referred to in order (1) available for hire to stevedores (including those licensed to undertake stevedoring at the Port by the first respondent) to undertake stevedoring work at the Port, including at Berth Number 4; (b) Rostering and classifying the employees as irregular shift workers under the Award and the Agreement. (3) Order (2) shall operate in respect of each of the employees until the first of the following events occurs: (a) The employee ceases to be employed by the first respondent on the terms and conditions set out in: (i) The Western Australian Regional Ports Integrated Labour Force (Geraldton Port Authority) Award, 1995 ("the Award"); and (ii) The Geraldton Port Authority - Integrated Labour Force Agreement 1995 ("the Agreement"); (b) The employee is redeployed on terms and conditions no less favourable than the Award and the Agreement. (c) The first respondent lawfully ceases to make the labour of the employees referred to in Order (1) available for hire to stevedores. (4) For the period from and including 27 March 1999 to the date of this order taking effect, the first respondent shall pay to the employees, as part of their entitlement to overtime during that period a sum equal to the difference between any amount paid for overtime to an employee during that period and an amount being the mean average of an amount calculated at the rate of 1·5 times the ordinary rate of pay for the employee as at 3 July 1998 and an amount so calculated at the date this order takes effect for 24 hours overtime for each calendar month of that period (proportionalised to the number of days in any incomplete month). (5) There be liberty to apply in respect of the operation of these orders. (6) The application be otherwise dismissed. (7) These orders take effect in 28 days." 3 On 14 January 2000 the Court proposed orders ("the draft orders") which relevantly provided in order (2)(a) after the reference to Berth number 4 for the additional words "on the same basis as existed prior to 3 July 1998." In reasons given on 10 February 2000 the Court gave the following reasons for excluding those words from the final orders: " I accept the submission for the GPA that the words "on the same basis" are uncertain. While it is open to read the words as contended for the applicants as referable to the "making the labour of the employees… available", the words leave open what was the original basis. To use them could open up the possibility of unnecessary resort to the liberty proposed in the orders. The removal of the same words invites concern on the part of the applicants that the GPA may only make employees available on a limited basis or on some basis it chooses to implement. That submission overlooks two factors. The first is that Order (2) is in its terms clearly designed to restore the employees to overtime work by making their labour available and having them rostered and classified as irregular shift workers. The second is that the availability of labour, rostering and classifying must occur where the demands for overtime work arise from the requirements of the Port. The use of the words "on the same basis" have the danger of suggesting some rigid or fixed standard unresponsive to surrounding commercial and industrial realities. It is not sufficient only to remove the words "on the same basis" - the words "as existed prior to 3 July 1998" also require removal. It is also my opinion that the proposed course of deleting these words is preferable because it is less likely to give rise to applications to exercise the liberty proposed by the Court than would be the case if the words remained." Nature of applicants' case 4 In support of their motion the applicants contend that the final orders have been deliberately frustrated by the actions of the GPA. The actions are said to be the increasing of charges for supply of the first applicant's stevedoring labour and the introduction of a requirement by the GPA that all stevedoring companies sign a labour supply agreement ("LSA"). It is contended these have resulted in none of the employees entitled to benefit from the final orders ("the employees") being hired by stevedoring companies at the Geraldton Port. The result, it is said, is that the final orders have no practical application. It is submitted that this has come about in the context where, in the making of the final orders, the Court declined to impose a penalty on the GPA in respect of the contravening conduct because the Court by its orders would grant appropriate relief. Whether motion in exercise of liberty to apply 5 The applicants bring their application in reliance upon the liberty to apply provided for in the final orders. Their right to do so is challenged on behalf of the GPA on the basis that the proposed orders lie beyond the scope of orders which may be made in the exercise of such a liberty. 6 A large number of authorities has been cited on the nature of the liberty. It is appropriate to turn initially to those in this Court in recent years, in which citation of other authority appears. In Abigroup Limited v Abignano (1992) 39 FCR 74 at 88 Lockhart, Morling and Gummow JJ said: "The reservation of liberty to all parties to apply to a court is a provision directed essentially to questions of machinery which may arise from the implementation of a court's orders. They include cases where a court may need to supervise the enforcement of orders after they have been made….orders of this kind relate to enforcement and not to statements of the rights of the parties. Historically orders reserving liberty to apply are for limited purposes. They arise, for example, upon a decree for specific performance where the unsuccessful defendant declines to sign all documents and do whatever is necessary to ensure that the contract the subject of the suit is performed…This demonstrates that there is no inconsistency between the making of final decrees, judgments or orders or declarations and subsequent orders of the court. It all depends upon the circumstances of the case and the particular orders or decrees formulated by the court." In Comcare v Grimes (1994) 50 FCR 60 at 62 Wilcox J said "the reservation of liberty to apply does not enable a party to ask a court or a tribunal to hear and redetermine a matter of which it has already disposed." Rather "the purpose of such a reservation is to enable a party to ask the court or tribunal to deal with a matter arising out of the orders already made; generally, to resolve an argument about the detail of action already ordered to be undertaken." He cited Daniell's Chancery Practice at p875 to the effect that such liberty "does not enable the court to deal with matters which do not arise in the course of working out the [order]." He regarded this understanding as having been adopted in a number of Australian authorities to which he referred. Sackville J in QDSV Holdings Pty Ltd v Trade Practices Commission (1995) 59 FCR 301 at 315 said "the reservation of liberty to apply in a final order does no more than reserve to the parties a liberty…to apply for any order considered necessary or desirable for the working out of the order." He continued by saying "it does not authorise the Court to discharge or vary the order: Commonwealth Scientific and Industrial Research Organisation v Perry (1988) 53 SASR 538 at 557 per King CJ." 7 Reference to the reasons of King CJ in the CSIRO case at 557 discloses that he relied on Cristel v Cristel [1951] 2 KB 725. That was a case where the Court of Appeal held that the words "liberty to apply" gave no power to a primary judge to vary an order of a Master by inserting the words "or flat" after the word "house" in the Master's order. Somervell LJ distinguished Abbott v Abbott (1930) 47 TLR 207 on the ground that no change of circumstances such as was put forward in Abbott's case had occurred in Cristel's case. Denning LJ considered Abbott's case would be a sufficient authority to enable an order to be varied to meet an unforseen change of circumstances. Hodson LJ reserved his opinion on the question. In Abbott's case Langton J interpreted the expression "liberty to apply" to mean leave reserved to both parties to make any application concerning any part of the order at any subsequent time. He rejected the submission that the words extended only to minor details. 8 In Wentworth v Woollahra Municipal Council unreported, Supreme Court of New South Wales, Court of Appeal (Hutley, Glass and Mahoney JJA) 31 March 1983, Hutley JA said that the suggestion of Denning LJ in Cristel had not, as far as his researches had gone, been taken further. He regarded it as unsound because it ran counter to the fundamental principle that a perfected order cannot be upset except by appeal or under the "slip" rule. Relying on Cristel's case, he said that what can be done pursuant to the liberty to apply is extremely limited and that under it orders can not be amended. In the event his remarks were obiter. 9 The scope of a court's power subsequent to the making of final orders was considered by McLelland J in Phillips v Walsh (1990) 20 NSWLR 206 at 209-210. He said: "The question whether any particular application can properly be made in existing proceedings is a matter to be determined according to general law principles as modified by any relevant statutory provision. One such principle of the general law is that when proceedings have been disposed of by a final order which has been entered, the proceedings are at an end and cannot be revived: see generally Bailey v Marinoff (1971) 125 CLR 529; Gamser v Nominal Defendant (1977) 136 CLR 145; and FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268. There are a number of exceptions and qualifications to this principle but none that has any relevance to the present application, unless it be that subsequent to a final order application may be made for the purpose of dealing with a matter involved in, or arising in the course of, working out that order; for example, by making more specific provision for its implementation or by modifying its operation to take account of some subsequent change of circumstance or by enforcing it. This exception or qualification does not, however, extend to an application made for the purpose of giving substantive relief not sought in the statement of claim or which is substantially different to that given by the final order: see generally Haviland v McLeary (1894) 15 LR (NSW) (Eq) 22; 10 WN (NSW) 146; Poisson & Woods v Robertson & Turvey (1902) 86 LT 302; 50 WR 260; 46 Sol Jo 196; Dowdle v Hillier (1949) 66 WN (NSW) 155; Re Porteous [1949] VLR 383; [1950] ALR 89; Cristel v Cristel [1951] 2 KB 725 and Re Scott (1964) 82 WN (Pt 1) (NSW) 313; [1964-5] NSWR 1636." Haviland v McLeary (1894) 15 LR (NSW) (Eq) 22; 10 WN (NSW) 146 held that a motion to remove a trustee could not be brought pursuant to the reserved liberty in final orders. In Poisson & Woods v Robertson & Turvey (1902) 86 LT 302; 50 WR 260; 46 Sol Jo 196 the liberty was held not to permit a motion for inspection. In Dowdle v Hillier (1949) 66 WN (NSW) 155 the motion sought payment of a contract debt when that had not formed part of the final order. In Re Porteous [1949] VLR 383; [1950] ALR 89a widow sought to bring an application pursuant to the liberty to obtain an increase in a maintenance allowance. 10 In my view the effect of authorities in this Court and in Australia is clear. It is as stated by the Full Court in Abigroup and by single judges of this Court in Comcare and QDSV as well as King CJ in the CSIRO case and McLelland J in Wentworth. There is no support in Australian authority of which I am aware that the view of Denning LJ in Cristel should be followed. 11 There is a further reason why that view should seem to be a correct understanding of the authorities. Order 37 r 6 of the Federal Court Rules provides: "A person bound by a judgment may move the Court for a stay of execution of the judgment, or for some other order on the ground of matters occurring after the date on which the judgment takes effect and the Court may make such order as the nature of the case requires." In QDSV, Sackville J at 315 said this provision gives the Court jurisdiction to vary or dissolve a permanent injunction: Coffs Harbour Environment Centre Inc v Minister for Planning (1994) 84 LGERA 324 at 335-336 per Kirby P. If the reservation of a liberty to apply were the source of authority for variation of orders to meet an unforeseen change of circumstances, there would be no requirement for such authority to be provided for in FCR O 37 r 6. 12 For the applicants it is contended that they come to Court seeking the working out of the final orders. It is argued that the liberty there granted was for the purpose of allowing the relief to be framed more precisely if so required. For them it is said that the motion in issue is precisely the type of application which was contemplated by the Court when the final orders were made. 13 Examination of the proposed orders shows: (1) the matters the subject of sub-pars (i) and (iv) would effect a reversal of the Court's prior decision and reasoning not to craft the orders in terms which made them adherent to the basis pertaining on a prior date, albeit a different prior date. (2) the matters proposed to be addressed in subpars (ii) and (iii) are not matters in relation to which orders were previously sought, so that they would be providing new remedies. (3) therefore, what is sought is a variation to the orders. The changes sought would not only implement the existing orders but would add to and vary their content. I consider that the orders now sought are not merely "to resolve an argument about the detail of action already ordered to be undertaken." Rather they seek to change the character of that which was ordered to be undertaken. These considerations suggest that the order sought may best have been dealt with if the parties had sought in the final orders reservation of further consideration: Ritchie's Supreme Court Procedure (NSW) v1, p 2901-2, par 42.12.3 cited by Wilcox J in Comcare at 62. 14 I do not consider this conclusion is affected by the nature of the relief which the Court provided under s298U of the Workplace Relations Act ("the WR Act"). That section provides for a wide discretion which may even allow the Court to make orders of a kind which the Court might refuse to make if it were exercising equitable jurisdiction: Patrick Stevedores v MUA (1998) 195 CLR 1 at 59. The applicants in reply rely on this fact as showing obvious similarities between the relief granted to applicants in the present case and equitable relief. In support citation is made of the statement in Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 QdR 593 at 598 where the Court recognised that the "process of carrying the primary judgment into affect may require supervision, with the consequence that further or supplementary orders or directions may be needed to enable it to achieve its purpose". That was a statement made by McPherson SPJ with reference particularly to equity. It followed citation of Cristel's case and a general statement that a judgment or order expressly reserving a liberty to apply can be varied on an application pursuant to such leave only so far as may be necessary for the purpose of working out the actual terms of the order so as to make it more efficacious in matters of detail. In Parker Wines Pty Ltd v Australia and New Zealand Banking Group Ltd unreported, Supreme Court of New South Wales, Young J 7 December 1995 it was observed by his Honour that if a wider recourse to the Court is sought, there must be reserved not just liberty to apply but further consideration and even then there are limitations on the power to revisit a matter: Haviland's case. Young J's reference to the liberty enabling the parties to come back to the Court to ensure that the order is carried out "according to its spirit" is no extension of the principles previously set out, his Honour having relied on Cristel, Phillips and Fylas. Relitigation of issues 15 Alternatively it is contended for the first respondent that the application is nothing more than an attempt to relitigate the issues which were before the Court in the principal application: D A Christie Pty Ltd v Baker [1996] 2 VR 582 at 597-9 and 603-6; Walton v Gardiner (1993) 177 CLR 378; Stephenson v Garnett [1898] 1 QB 677; BPTC Ltd (in liq.), unreported, NSWSC, Lib No BC 9504326. These are cases in which attempts at re-litigation were struck out as an abuse of processes in circumstances where there had previously been other litigation adverse to those initiating fresh process. I accept the submission for the applicants that the argument is of no application to the circumstances here. Circumstances since final orders 16 In the event that the liberty to apply is considered to encompass the proposed orders, it is necessary to consider the circumstances which are said to have given rise to them. 17 On 5 July 1999 the Court delivered judgement in the proceeding. It ordered that counsel be heard in relation to the orders appropriate to relief on the one matter upon which the applicants had succeeded. That was the prejudicial alteration to the position of the applicants pursuant to s 298K of the WR Act. Submissions were filed. 18 On 10 December 1999 the Board resolved that Mr Durant be given authority to vary stevedoring charge out rates "to ensure that the cost of daily labour allocation and administration are met." Mr Durant requested Mr Treasure, the Finance and Administration Manager of the GPA, to review the cost of the GPA providing labour to stevedoring in Geraldton. Mr Treasure asked the GPA's Accountant, Mr Seaton, to examine what costs the GPA was incurring in the administration of the hire of stevedoring labour and what costs could be recovered. 19 Mr Seaton undertook his task by (on his description): (a) considering the GPA personnel who were involved in administering the hiring out of stevedoring labour; (b) considering the roles of those personnel and the time they took to perform their duties in those roles; (c) obtaining from Mr Treasure and Ms Campbell, GPA's Accounts Officer, estimates of the time they spent administering the hiring out of stevedoring labour; (d) calculating the daily cost of providing stevedoring labour; (e) analysing and extrapolating the figures for hours of stevedoring labour supplied to arrive at annual figure of hours of labour supplied; (f) arriving at an annual figure of $4.83 per hour as the amount that needed to be added to the charge out rate to recover the administration costs; (g) rounding the figure of $4.83 up to $5.00. 20 On 22 December 1999 Mr Treasure sent a letter to all stevedoring companies advising them the rates for the use of GPA employees as stevedores were to be subject to $5.00 flat increase with effect from 14 January 2000. Mr Ian Stockbridge, the Stevedoring Manager of WA Mercantile Services Pty Ltd wrote to Mr Treasure in response. The rate increase was not brought to the attention of the Court. 21 On 14 January 2000 the draft orders were published. 22 After that date Mr Durant asked Mr Treasure and Mr Seaton to have a further look at the charge out rates for supply of stevedoring labour "to ensure that the [GPA] was providing a fully independent and commercial labour hire service to stevedoring companies." They examined all aspects of the hire and allocation of stevedoring labour and developed new charge out rates. The Court was not informed of the intention to further review the rates. 23 After it had become known that the final orders would require the GPA to continue to provide stevedoring labour in respect of the employees, Mr Durant gave instructions for the drafting of LSA's between the GPA and the stevedoring companies operating in the Port. The second draft bears the date 3 February 2000. 24 On 10 February 2000 the final orders were made. 25 On 14 February 2000 the GPA approved the new rates which came into effect from 10 March 2000. This second change to the rates was not uniform, bringing increases in some rates and decreases in others. The GPA also resolved at the same meeting to accept in principle the LSA prepared by the GPA's legal advisers. 26 Since the making of the final orders no employee of the GPA has been engaged by stevedoring companies operating in the Port of Geraldton. Outline of cases for applicants and the respondent 27 For the applicants it is contended there are two major reasons for the cessation of stevedoring labour. The first is that the GPA has increased the rates charged for the use of its employees twice. The second is that the GPA has required stevedoring operators to enter into a LSA. It is submitted for the applicants that these steps can only be understood as steps taken by the GPA to frustrate the operation of the final orders. The exercise of the liberty to apply for the making of the proposed orders is therefore urged on the Court. 28 In support of this case it is said for the applicants that the final orders intended the restoration of the employees to the overtime they had lost as a result of the GPA exiting from the provision of stevedoring labour. The orders were made in a context where the Court declined to penalise the GPA on the basis that the Court could remedy the effects of the breach of the WR Act. 29 For the GPA it is broadly argued that the implementation of the new rates and the introduction of the requirement of LSA's are steps taken for sound commercial reasons. Therefore it is said that, consistent with the respect shown in the Court's reasons for the GPA to operate on a commercial basis, there is no basis upon which the Court should further intervene. 30 The affidavit evidence for the applicants came from Mr Giddons and Mr O'Leary, national officers of the MUA; Mr Winch-Buist, one of the second applicants; Mr Jones, a director and principal of Ship Management Services Pty Ltd trading as United Stevedoring Company; and Mr Stockbridge, Stevedoring Manager of WA Mercantile Services Pty Ltd. The affidavit evidence for the GPA came from Mr Durant; Mr Treasure; Mr Seaton; and M/s Campbell. Mr Blyth, chartered accountant, was called as an expert for the applicants. 31 A number of evidentiary contentions are raised. Credit 32 The case for the applicants attacks the credit of Messrs Durant, Treasure and Seaton. 33 It is accepted for the GPA that "in some areas, Durant's oral evidence was a little vague and confused." This was particularly so in cross-examination. A marked example of inconsistency in his evidence was between that of he and Messrs Treasure and Seaton on the date when the second review of rates was commenced. Mr Durant's evidence was that it commenced on 10 February, after the final orders were published. In its submissions the GPA does not accept that evidence, preferring the evidence of Messrs Treasure and Seaton that the review commenced in January. I have already made a finding of fact contrary to Mr Durant's evidence on the point. I am urged to disbelieve him generally. The submission for the applicants is that his refusal to acknowledge the obvious is borne out of his knowledge that the purpose of the second review was to undermine the effects of the probable Court orders. As in the principal proceeding, so here. I am not persuaded by my own observations of the witness that he lacks general credibility for the reasons suggested in the submissions for the applicant. Furthermore he was not the person who undertook the reviews in any detail. I consider the proper approach is to consider his credibility as an issue when the evidence suggests it but not generally. 34 In relation to Mr Treasure it is contended for the applicants that he refused to acknowledge what was sworn to in his affidavit that the first review was a review of the "rates charged". In his other evidence and in cross-examination Mr Treasure made it clear he was asked by Mr Durant to review the cost of providing stevedoring labour. Neither in his other evidence nor in his responses to cross-examination is there any reason to make a general credibility finding against him. The one paragraph of affidavit evidence relied upon is no basis for doing so. 35 In relation to Mr Seaton, the credibility challenge is based on his selection of a period for his calculations during which five stevedores were made available for employment in preference to a full calendar year. Other aspects of his approach to calculation were referred to. I do not regard these as the foundation for general disbelief and consider they should fall for evidentiary assessment on the issues to which they each relate. Onus of proof 36 For the applicants it is contended that if their case that the GPA's changes have had the effect of frustrating the order is established to the appropriate standard, it will be for the GPA to show that its changes are genuinely motivated by commercial reasons. The submission is that the evidentiary burden will shift in those circumstances. The effect of this, it is submitted, is that the GPA would have to establish that its conduct was genuinely motivated for commercial reasons. 37 I agree with the submission for the GPA that interference with the final orders would only be justified where it was shown that the GPA conducted itself deliberately to frustrate the operation of the final orders and did not act in that way for genuine commercial reasons. 38 Furthermore the general rule is that the party bringing a claim bears both the evidential and persuasive burdens on each and every fact essential to establish the claim. In my view that is the position pertaining in relation to the applicants' case. 39 This issue is not affected by the presence of the reverse onus in s 298V of the WR Act. The matter raised by the application for the exercise of the liberty is not whether the GPA engaged in conduct for a prohibited reason. Standard of proof 40 For the GPA it is submitted that the applicants must prove their case on the balance of probabilities so that the Court can have a comfortable satisfaction that, if it finds for the applicants, it has reached both a correct and just conclusion: Briginshaw v Briginshaw (1938) 60 CLR 336 at 354. The submission is founded on the contention that the allegation against the GPA is serious and, if made out, would raise an event of "grave moral delinquency" in that it would find deliberate frustration of the final orders: Briginshaw at 363. 41 I have addressed similar contentions in the reasons given for judgement: MUA v Geraldton Port Authority (1999) 93 FCR 34 at 65. It is appropriate that the same approach there set out continue to be taken in the resolution of the matter. Section 140(2) of the Evidence Act 1995 (Cth) requires in any event an attention to the gravity of the issues in the application of the civil standard of proof. Jones v Dunkel inference 42 For the applicants it is submitted that a Jones v Dunkel inference should be drawn from the fact that none of the members of the GPA have been called to give evidence. The appropriateness of their doing so is said to arise from the approvals given by the GPA at meetings on 10 December 1999 and 14 February 2000. The inference which it is said should be drawn is that the evidence of the members of the GPA would not have assisted it. The consequence would be, it is submitted, that the Court will more readily draw an inference concerning the purposes of the GPA. 43 In response it is argued for the GPA that the rule has no application here because there is nothing in the conduct of the members of the GPA which they are called upon to answer, explain or contradict. This is said to be the case because the evidence is plain that a recommendation was made to them and they accepted it. It is submitted they do not need to come to Court to say whether they thought or knew the effect of their resolution would be that stevedoring companies would not hire their labour. Likewise it is said they do not have to say whether it was part of their plan to make the hire of their stevedoring labour unattractive. 44 The requirement for contradiction or explanation only arises where enough has been proved to warrant a reasonable and just conclusion against a person in the absence of his or her explanation or contradiction: Jones v Dunkel (1959) 101 CLR 298 at 321 citing R v Burdett (1820) 4 B & Ald 95. No particular evidence arises that raises the issue that any of the members of the GPA acted at the meetings in question with the alleged purpose in mind. So far as the contention for the applicants encompasses a claim that the inference arises from the failure of the GPA to call its members to explain or contradict the general allegations arising on the evidence against it, it seems to me the inference can be drawn. The inference is that the evidence of the members would not have assisted the case for the GPA. It is not an inference that such evidence would have been adverse. 45 It is not argued that s 349 of the WR Act has any relevance to this consideration: cf MUA at 80-81. I consider that is correct because the issue raised here of the purpose of the GPA is not one in respect of which it is "necessary" "for the purposes of" the WR Act to establish the state of mind of the GPA. Whether the revisions were causative of the non-use of stevedoring labour 46 The evidence called for the applicants on the issue of causation is supported by and relies on the evidence of Mr Jones and Mr Stockbridge. That evidence shows their concern with the level of the charge out rate and the requirement for the entry into a LSA. The rates were said by Mr Jones to be very high compared to the rates of the Albany Port Authority and the Esperance Port Authority. Mr Stockbridge said the increases were not commercial and were exorbitant when compared to rates charged prior to December 1999. Mr Durant proposed some other reasons for failure of stevedoring companies to take up port labour but they were conjectural and unsupported by further evidence. 47 For the applicants it is submitted the Court is left with the inescapable conclusion that the increases in rates and the introduction of the LSA requirement have put a stop to demand for the use of port labour and thereby frustrated the operation of the final orders. 48 It is submitted for the GPA that no inference adverse to it should be drawn by reason of the fact since the Board's decision of 14 February 2000 to implement the recommendations of the second review, stevedoring companies operating in the Port have not used labour provided by the GPA to carry out stevedoring work. A number of factors are relied on to support this submission. Firstly, it is said there have been substantial changes in the identity of persons carrying on stevedoring in the Port. Secondly, employees of the GPA provide stevedoring labour to stevedoring companies operating in the Port and at rates less than that which the GPA considers to be commercial. Thirdly, the GPA has overheads and expenses associated with its employees, such as administration costs, which are not applicable when a stevedore engages labour directly. The decrease in stevedoring work performed through the GPA being due to market forces, it is said the Court should not intervene. The second and third considerations raise issues not directed to causation. Whether changes made to frustrate final orders 49 The case for the applicants is that viewed in the context of certain factors, the only appropriate inference is that the GPA made the changes to frustrate the final orders. The contention is that the context negates the GPA's assertion that the changes were commercially mandated. I now examine each of the contextual factors so relied upon. (1) GPA wish to cease providing employees to stevedoring companies 50 The submissions for the applicants commence by stating that it is hardly a contentious statement to say the GPA does not wish to make its employees available to stevedoring companies, that being the decision of the GPA on 3 July 1998 as found in prior reasons. The submissions then point to other evidence of the continuation of that wish. 51 In re-examination Mr Durant said it was inconvenient to have employees made available to stevedoring companies as ten of the fifteen employees were critical to operational performance. There was no objection by the GPA to allocating some employees to stevedoring companies outside the times when the GPA did not require them. In relation to this it is submitted for the applicants that the inconvenience which the GPA wishes to avoid has been brought about because of the reduction in the size of its workforce through redundancies. As this was done in the knowledge of this case being brought, it is said not to be open to the GPA to plead inconvenience as a barrier to compliance with the final orders. 52 When the final orders were formulated the Court had regard to evidence of Mr Durant that the GPA could continue to offer the services of such stevedoring labour as it retained to stevedoring companies in the Port and would find that attractive. The evidence of Mr Durant on this application is not in accord with his prior evidence. 53 In a letter of response to Mr Stockbridge, Mr Durant said the GPA was not in the business of hiring public sector labour to private enterprise, although he knew at that time of the draft orders. At a meeting of Port Users he spoke of the absence of an obligation for the licensed stevedoring companies to use GPA labour. There is no evidence of the GPA inquiring into why their labour is not being used. This evidence is relied upon for the applicants to demonstrate that no employee of the GPA now has the advantage of the overtime work arising out of stevedoring labour hire is totally consistent with the GPA's business plan. 54 So uncontentious are these particular submissions that they do not attract opposition on behalf of the GPA. I proceed on the basis that the applicants are correct that the above circumstances are the context in which the matters now arising fall to be judged. (2) Absence of evidence from Board members This has been addressed above as an evidentiary issue. (3) The timing of the reviews undertaken 55 For the applicants it is submitted that the reviews of the charge out rates conducted by the GPA were not genuine when the circumstances in which they were undertaken are examined. 56 The first argument said to support this is Mr Treasure's alleged blatant refusal to acknowledge what was sworn in par 11 of his affidavit to the effect he had been asked by Mr Durant "to look at the rates." I have already found this does not support a general finding of lack of credibility. Mr Treasure's evidence was, with the exception of par 11 of his affidavit, in terms that Mr Durant had asked him to review the administration costs so that they were included in the charge out rate. In my view cross-examination on this did not shake Mr Treasure from his primary evidence on the issue. 57 The next argument made is that the first review was done only for a temporary purpose as it was entirely superseded by the second review. This is said to find support in the fact that the second review did not take the first review as its base. 58 It is also said to find support in the fundamental inconsistency between the evidence of Mr Durant and that of Mr Treasure and Mr Seaton concerning the timing of the second review. I have already rejected the evidence of Mr Durant that the second review commenced after the final orders. For the applicants it is submitted Mr Durant's refusal to acknowledge the obvious is borne out of his knowledge that the purpose of the second review was to undermine the effects of the probable Court orders and not a response to the final orders. 59 In further support of this argument the case for the applicants turns to the evidence of Mr Durant that the review of stevedoring charges was commenced in 1997 and stopped in 1998. It is submitted that evidence does not stand up to examination because there is no documentary evidence to support it and both Mr Seaton and Mr Treasure made clear there were only the December and January reviews. Mr Durant's evidence was to the effect that he had decided the GPA should undertake a review of charges as part of the review of all port charges as a lead-in to the budget for 1998/99. When the Board decided in July 1998 to cease providing stevedoring labour, there was a decision to hold the charges without increase through the next budgetary period. That evidence is not inconsistent with the former evidence. It is not explicit nor implicit in Mr Durant's evidence that there was any documentation or that Messrs Treasure or Seaton were involved. 60 However, the evidence does not support a finding that the December and January reviews were part of a continuum from earlier proposed rate reviews. Those reviews were made with knowledge of either the reasons or the draft order. They stand in a different category. (4) Methodology of the reviews 61 The submission for the applicants is that once the reviews were commenced, neither of them was conducted in any appropriate or structured manner. 62 This is first supported by reference to evidence from Mr Treasure that he commenced from the position where he assumed administration costs were not being recovered by existing rates. However, his evidence discloses there was good reason for that, namely that past Port charging practices had been to only pass on the actual wages costs along with certain on-costs. Nor was he culpable of not seeking out material given that he acted on that understanding and his attention was directed to ascertaining administrative costs requiring to be covered by the rate rather than any historical basis of fixing the quantum of the rate. 63 The rounding up of the figures arrived at is challenged by the applicants as a methodological flaw. Rounding up occurred from $4.83 to $5.00 on the first review and from $13.17 to $14 on the second review as well as in figures used in the calculations, eg actual labour cost from $118.66 per day to 125.00 per day. Mr Treasure testified that if the figures had been rounded down, full commercial charges would not have been recovered. The applicants rely on the testimony of their expert Mr Blyth to challenge the legitimacy of Mr Treasure's approach. Mr Blyth testified that rounding up might be excessive in a sensitive market position. He accepted it was legitimate in decisions to round up to take into account "swings and roundabouts." I accept the applicants' submission that should be understood to mean rounding up sometimes and rounding down others. The submission is that if this latter approach is followed, the result will average out. If Mr Treasure's approach is followed, it is said a figure higher than an appropriate commercial rate will be reached. In the case of the actual labour costs, that cannot be the case because Mr Treasure rounded the figure up to take account of additional specified administration costs. 64 The case for the applicants relies on the issue of market sensitivity to contend that with that as a factor, it is difficult to see the increases as genuine. The absence of evidence of negotiation of the rates with reference to the rates in other ports, as was the case when rates were fixed by the GPA in 1992, is said to be significant. The submission is that the GPA adopted an approach which lead at every possible turn to the highest rate being calculated. It is said this is because, in a commercial sense, the GPA did not care if no-one used its stevedoring labour and because it found the prospect of all 15 employees being made available for stevedoring "onerous." 65 It is further submitted that the increases arrived at as a result of the rounding up were compounded by adding a further 15% margin. It is argued the investigation into a margin of 15% was cursory at the least, involving a calculation in respect of one labour hire company which the GPA itself used. 66 In this context it is said that the decision by Mr Seaton to institute on-board safety inspections to ensure GPA employees were performing their work in a safe environment is an odd one. This is said to be the case because it showed no concern for the level of costs imposed. It was not, as suggested for the applicants, a decision undertaken "on a whim." 67 The result of all these considerations, concludes the submission, is to show that the GPA went about the reviews in a way which shows it was not the least troubled if stevedoring companies decided not to use its employees. The rates set as a consequence of the reviews, it is said, cannot be seen to be genuinely commercial rates because they failed to take into account a number of matters germane to commercial considerations. These were some investigation of the likely extent of the use of its services, some consideration of the cost and some consideration of an appropriate and realisable profit. Above all it would have taken into account market sensitivities or other market prices such as those in other ports, or the price for which labour was available from other sources in the Port. It is said not to be commercial to fix a price for a service so high that no one wants to buy it. 68 In response it is argued for the GPA that it is also the case a service provider ought not be placed in a position where it has to sacrifice its profit simply to get a market. It is submitted the GPA is entitled to recover the costs of providing its service and a commercial profit through the imposition of its rates. This, it is said, amounts to the applicants asking for a market to always be available for the hiring out of stevedores. The submission is that the GPA should not be placed in a position where it must run at a loss simply to provide that market. (5) Approaches to particular calculations 69 It is then submitted that the manner in which the calculations themselves were carried out reinforces the above contentions. There are five areas where it is said there are serious issues concerning the calculations undertaken substantially by Mr Seaton. 70 Stevedoring hours: the first is that the calculations were based on the same number of stevedoring hours as the first review when, at the time of the first review, there were five employees who could be hired out as stevedoring labour as against 15 at the time of the second review. It is suggested Mr Seaton deliberately avoided using figures for the full 12 months from December 1998 to December 1999 and used figures from 30 January 1999 to 3 December 1999. It is contended he had not gone back to the figures for December 1998 and January 1999 because he only examined the period in which the five stevedores had been working. His extrapolation of the figures used to an annual figure rather than the use of the true annual figure had resulted in a difference of over 1,500 hours. It excluded consideration of one of the busiest months (December 1998) and did not take into account the possibility that more than five employees could be made available if the Court so ordered. 71 For the applicants it is also submitted material which discloses a more appropriate figure can be discerned from evidence which was already before the Court (exhibit Y). That exhibit showed the ordinary and overtime stevedoring hours for a period including 21 June 1997 to 19 June 1998. This is said to be a year in which all of the Port's employees were made available for stevedoring. The figure in that exhibit for stevedoring hours of GPA labour from 21 June 1997 to 19 June 1998 is 22455.4. 72 For the GPA it is submitted that exhibit Y relates to a time when there were approximately twice the number of permanent employees in the Port. In addition, circumstances in the Port have changed significantly since that time. The primary difference relied on is that the GPA is no longer the sole source of labour in the Port. 73 Mr Blyth testified that if a figure in the order of 20,000 hours had been used in lieu of the figure in the order of 6000 hours, any increase in the number of stevedoring personnel would effectively achieve a reduction in the hourly charge out rate, the recoverable rate for those stevedores. This was because a substantial part of the costs is going to be fixed costs and not subject to variation or increase if the number of personnel are increased from five upwards. 74 Mr Treasure testified in cross-examination the use of the same number of hours was appropriate because based on those hours, 95% of the trade in the Port was covered. Fifteen employees would simply be divided over the same number of hours, with a slight rounding up of total hours. Additionally, a number of companies were not picking up the GPA's labour force, including labour-intensive jobs of livestock loading and some fertiliser loading. His evidence was that due to changes in the circumstances at the Port, 20,000 hours was no longer appropriate, six or seven thousand hours being the appropriate figure. He envisaged future adjustment of the rates to take account of actual circumstances at the time. Mr Seaton testified he had made an assumption there would not be an increase in the number of stevedoring hours. In re-examination he said he and Mr Treasure had not believed there would be a substantial change in the number of hours used for the calculation. This was because 90% of the business going across two wharves only required 3-4 stevedores. This latter evidence is challenged for the applicants on the basis it is unsupported in any of the documentary evidence, although a matter of crucial importance to the GPA's position. 75 It is submitted for the applicants that it is beyond belief that no statement concerning a significant reduction in stevedoring work found its way into any of the material relating to the calculations. This is said to be particularly so when other evidence of demand for stevedores is taken into account. Reliance is placed on testimony of Mr Treasure concerning the difficulty in allocating the five men in response to the different requests received. Reliance is also placed on testimony of Mr Jones to the effect that his company has always looked to the GPA in the past as its major source of supply of skilled workers because it relies on their special training. He also testified that the ship operations at the Port are the most labour intensive outside Kwinana and Fremantle. 76 Given the absence of documentary support for the GPA's position on the issue of reduction in the demand for stevedoring work, it is submitted the Court should view that evidence as having been developed to meet the evidence of Mr Blyth concerning the impact of the assumption on the calculations. The submissions for the applicants even go further and contend that Mr Seaton should be found to have been instructed to assume that a smaller number of employees than the 15 would regularly undertake stevedoring work. Such a finding is not open on the evidence. 77 Number of hours worked: the second area where it is said there are serious issues in respect of the GPA's calculations is the number of hours worked by persons involved in allocations. It is submitted that the estimates of hours were, at best, based on guesses. This is supported by reference to testimony of Mrs Campbell. Her time estimates are said to look very approximate and to seem exaggerated when examined against her description of her relevant duties. Her evidence was she spent three hours a day out of an eight hour day on work related to the allocation of labour to stevedoring companies. Her working day was from 6.00am to 4.30pm daily. She testified she did overtime but she was not asked about overtime when the GPA was providing stevedoring labour. There is evidence that allocations were made on a Sunday for Monday so that overtime on Sundays can be inferred. Mr Seaton's evidence was that Mrs Campbell used to do "a fair bit" of overtime, namely close to three hours a day. However, he accepted that she had not been given any other duties since the cessation of allocation work and that her other duties had not expanded. 78 For the applicants it is submitted that Mr Seaton's evidence on overtime should be seen as an attempt to provide support for his calculations regardless of the truth. (It is the foundation of the credibility attack on him previously addressed). It is also submitted that if Mrs Campbell worked three hours of overtime on top of her ordinary forty hour week, she would be working 55 hours. On the basis of a 52 1/2 hour week based on the earlier mentioned hours, that is said to be unlikely. 79 Then the applicants' case says Mr Treasure's estimate of the hours spent appear to be inflated. It is said it is unlikely he spent an hour a day doing the duties he described. Mr Durant's time was included at one hour without inquiry of him. These failures are said to support the submission that those conducting the reviews were seeking to obtain a high figure so as to price the GPA out of the market. 80 Additionally the hours of Mrs Campbell in the second review for allocating 15 stevedores was increased from 15 to 32 per week. This was so notwithstanding the same number of hours were presumed for allocation across the Port, namely 6,725. Mr Seaton explained this by saying the management of 15 employees will take a lot longer than five employees. 81 This evidence is said for the applicants to show that in calculating the number of hours spent no careful regard was had to the realities. Instead very vague estimates were used. The explanation for this, it is submitted, is that the GPA had a clear preference for pricing itself out of the market. 82 I consider that at the most there may have been some inexactitude in Mrs Campbell's evidence. It is not implausible on the evidence that she could have worked 3 hours a day on stevedoring allocations. It was not put to her that her estimate of three hours per day was excessive. The inexactitude involved is not in the realm of gross overstatement. Nor is it of the dimension that it can properly be said, as submitted for the applicants, that Mr Treasure and Mr Seaton were not concerned to investigate it because they were not concerned with making the price of their stevedoring labour realistic. 83 Use of computers, office space and car: here the submission is that there was no basis for factoring into the cost calculations the whole cost of the computer when they were used for other purposes. Likewise the applicants' submissions are said to be supported by the charging against stevedoring of the whole of the cost of the use of office space. This was done although stevedoring allocation work by the persons utilising that space did not take up the whole of their time. Allocation of a third of the cost of the use of a car is likewise said to be excessive and unsubstantiated. These approaches are said to be unexplained by Mr Seaton so that the Court can conclude there is no explanation consistent with the GPA's case. 84 Overall effect of calculations: the result, it is submitted for the applicants, is that there emerges a consistent pattern in relation to the calculations. Its features are choice of the highest estimate, rounding up rather than down, absence of detailed inquiry and no consideration of the effect of the price increases proposed on the market existing. The calculations should be seen, it is said, as not undertaken in a serious and businesslike manner. This is said to be particularly so in a context where the published profits of the GPA display lack of reason to raise rates to make a 15% profit on costs. (6) Labour Supply Agreements 85 Here the submission for the applicants runs as follows. The GPA knew that stevedoring companies were resistant to these agreements and had rejected them in the past. It nonetheless persisted with its decision to require them. It included provisions in them, such as insurance and indemnity obligations, which it knew they would not want. Although having not insisted on these agreements in 1992 and 1997 when stevedoring companies did not have a choice of labour, the GPA now did so. The only explanation, it is said, is that the GPA wished to discourage use of their labour. 86 In response it is submitted for the GPA that it is not appropriate for the Court to make an order that would prevent it requiring stevedoring companies to take its labour under reasonable commercial arrangements and require the GPA to accede to their commercial desires. The case for the GPA generally 87 It is submitted generally for the GPA that the evidence adduced by it shows that the increases in the charge out rates resulting from each of the reviews was not random. Rather it involved a consideration of the costs of the GPA, including indirect costs; the obligation of the GPA to operate in a "commercial" manner; and 'profit margins' charged by persons carrying on operations similar to those of the GPA. In doing this, it is said the GPA should be seen by the Court as having acted commercially in the terms recognised by the Court in its reasons of 5 July 1999. The Court should not now make orders which require the GPA to provide stevedoring labour on terms and conditions which do not provide an adequate commercial return to it. In particular the Court should not substitute its opinion on the commercial desirability of charge out rates of the GPA in place of the opinion reached by the GPA. 88 For the applicants it is argued these submissions ignore the evidence in their primary submission and the fact of continued use of GPA labour made available as a result of the GPA's undertaking to the Court made during the hearing of the proceeding. In any event, it is said, the increase in rates was on any view the truly operative factor on the evidence.