Many millions of tonnes of coal have been exported since activists dubbed the Rising Tide Seven temporarily shut down coal loaders in Newcastle in September last year.
They were convicted on January 31 of “remaining on enclosed lands”. Each was fined $300, plus $79 in court costs.
However, on March 3, they were vindicated when magistrate Elaine Truscott rejected the Port Waratah Coal Services’ (PWCS) $525,000 “compensation” claim.
Truscott described the movements of ships such as the Mulberry Paris, Situ Maru and Goodwill, each fed by trainloads of coal round the clock, trying to find how PWCS had lost any opportunity to load coal. The onus of proof had been on PWCS to satisfy her with details of their loss. But the numbers just did not add up.
She said that with such large sums of money involved, she had expected “greater accuracy in explaining” why they claimed compensation.
She queried the evidence submitted by PWCS, noting that there were many other interruptions, besides the actions of protesters, in the 24-hour cycle, such as maintenance and weather. She queried whether the loss of opportunity to load coal was a “real loss”.
The Environmental Defenders Office provided legal support for the defendants. Lawyer Kenneth Averre said PWCS had abused the legal process by using its compensation claim as a deterrent and punishment for the intrepid protesters.
He referred to the Rising Tide activists as “committed environment warriors” and said the Victims Compensation Act was intended for actual victims wanting compensation for individual loss.
Truscott rejected this argument, saying “corporate victims can be equal to individual victims” — and that they should not be deprived of compensation because the community perceived this as a David and Goliath situation.
However, she agreed that the aim of the act was to compensate for real loss and it should not be used as a punitive deterrent. For her, the whole case had been “overshadowed by the fact that PWCS doesn’t want the money”. It had said it would give the money to charity.
Truscott accepted the genuine concern of PWCS general manager Graham Davidson. She understood that his desire to deter protesters was for their own safety and that of his workers. He had authorised a full-page ad over two days in the Newcastle Herald outlining safety concerns.
However, she noted that the half million-dollar compensation claim aimed at changing behaviour was emotive or even cynical, and put the company on notice that it could not pursue victims’ compensation as a deterrent.
Equally, she accepted the sincerity of the aims of Rising Tide. Their aim is “to highlight the effect of coal on global warming ... Their main focus is not on any loss to PWCS. This is not in the realm of industrial sabotage.”
However, she said that if Rising Tide caused a loss that “could be proved” then they would lose in court.
In a media statement that day, Rising Tide spokesperson Carly Phillips said: “We are very happy that the court has ruled in our favour, and dismissed this exorbitant compensation claim. However, we are very concerned with the grounds by which the decision was made. Essentially, PWCS lost their claim because they were unable to provide sufficient evidence of the exact amount of profit they forewent due to our protest.
“Magistrate Truscott made it very clear that, had PWCS prosecuted their case more effectively, the compensation payout would have been awarded. We find this very disturbing.
“Large corporations should not be allowed to pursue peaceful protesters using Victims Compensation laws. These laws were designed with the intention of compensating victims of violent crime. That some of the world’s biggest mining corporations attempted to use the Victims’ Compensation Act against us was a gross abuse of this legislation. It was corporate bullying.
“We will not be silenced by corporate bullies and we will not let the issue of climate change be ignored. We will continue to protest here in Newcastle. While the government and coal industry continue approving coal expansions they will be met with protests from the community.”
She said Rising Tide activists had a proud training and safety record and there was no cause to worry about their safety.
"If PWCS truly placed the safety of people ahead of their own profits, they would be planning to phase out coal exports, not double them. Climate change is killing at least 300,000 people per year, according to Oxfam.
“Newcastle coal exports are directly contributing to climate change, and are Australia's biggest and fastest growing contribution to the problem. To maintain a safe climate we must begin a just transition away from the environmentally destructive coal industry. This must start with a ban on any new coal infrastructure or coal expansions."