A luxury yacht charter operator has obtained an injunction to prevent the Hamilton Island resort engaging in potentially anti-competitive conduct by denying it the right to embark and dis-embark passengers at the harbour marina.

Ocean Dynamics has conducted business in the Whitsundays for nearly a decade in completion with several other operators including one owned by Hamilton Island Enterprises itself.

In late 2014, HIE notified the company that its marina facilities arrangement at Hamilton Island Harbour was to come to an end in March 2015.

The company relies upon the facilities to board and set down holidaymakers who in most cases arrive and depart from the island’s Great Barrier Reef Airport and who frequently spend time there before or after their charter.

It operates the Ocean Free– a 60 ft Maritimo – and cross hires other vessels – which command up to $5k/day in bare boat or skippered configuration.

The vessels sail from Hamilton Island itself as well as from Hayman Island, Daydream Island and Airlie Beach.

Ocean Dynamics argues that HIE’s barring of access to the marina is for the “purpose of eliminating or substantially damaging a competitor in the market for luxury yacht charters”.

The action alleges HIE has a substantial degree of power in several Whitsunday tourism markets – including the marina services market – and its misuse of that power in the luxury yacht charter market offends Competition and Consumer Act s 46.

Justice James Edelman sitting in the Federal Court of Australia at Brisbane ruled that a prima facie case had been established “for an injunction based on the claim that HIE has taken advantage of its power in the marina services market for the purpose of eliminating or substantially damaging Ocean Dynamics in the luxury charter market or deterring it from competitive conduct in that market.”

He also concluded there would be very significant prejudice to Ocean Dynamics given that if an injunction were not granted there was a “very real prospect the company might fail and ….its sole director could lose her livelihood ….five employees could lose their jobs and …..dozens of customers, including those staying at Hamilton Island, with existing bookings upon which they have based holidays could be disappointed”.

On that basis, his honour decided that the balance of convenience “significantly favours a grant of an injunction until trial”.

In also granting “liberty to apply” on short notice, Judge Edelman added as a footnote, there “is every indication that the parties will act in a dignified and proper commercial manner notwithstanding they are now locked in litigation.”

Ocean Dynamics Charter Pty Ltd v Hamilton Island Enterprises Limited [2015] FCA 460 Edelman J 14/05/2015


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