Bass Strait Freight Pty Ltd & Anor v Colac Otway Shire Council & Anor
[2024] VSC 19
•2 February 2024 Ex Tempore; written reasons published 6 February 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 00285
| BASS STRAIT FREIGHT PTY LTD MARINE FREIGHT HOLDING PTY LTD | Plaintiffs |
| v | |
| COLAC OTWAY SHIRE COUNCIL FIONA WADDINGTON | Defendants |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 25 January, 1 February 2024 |
DATE OF RULING: | 2 February 2024 Ex Tempore; written reasons published 6 February 2024 |
CASE MAY BE CITED AS: | Bass Strait Freight Pty Ltd & Anor v Colac Otway Shire Council & Anor |
MEDIUM NEUTRAL CITATION: | [2024] VSC 19 |
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PRACTICE AND PROCEDURE — Interlocutory — Direction under s 232 of Marine Safety Act 2010 (Vic) to prevent plaintiffs using Port of Apollo Bay— Whether defendants should be restrained from relying on the direction — Balance of convenience — Lower risk of injustice — Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 — Bradto Pty Ltd v State of Victoria (2006) 15 VR 65 — Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | B Murphy | Corrs Chambers Westgarth |
| For the Defendants | R Heath KC with M Agnoletti | Maddocks |
HIS HONOUR:
The second plaintiff, Marine Freight Holding Pty Ltd, is the owner of two commercial cargo vessels, the Matthew Flinders III (‘MF III’) and Matthew Flinders IV (‘MF IV’). The first plaintiff, Bass Strait Freight Pty Ltd (‘BSF’) is the operator of these vessels.
BSF is based in Bridport on the north-east coast of Tasmania. It provides marine freight services to Flinders Island and Cape Barren Island in the Furneaux Group of Islands, and ‘as required’ services to and from King Island using the MF III and MF IV vessels. MF III and MF IV are purpose built cargo vessels capable of carrying up to 300 tonnes in freight including bulk fuel, fertiliser, livestock, general cargo and motor vehicles.
BSF has developed a plan to operate a marine freight service from King Island to the Port of Apollo Bay (‘Port’) in Victoria. As part of that plan, BSF contracted with TRT Pastoral Group (‘TRT’), a beef cattle operation on King Island, to freight 3000 head of cattle to western Victoria and 600 tonnes of bagged fertiliser back from western Victoria to King Island. The cattle were sold by TRT to Princess Royal Station in South Australia for a total sum of around $5.2 million and are now due for delivery. BSF intended to move the livestock by shipments commencing in the week of 22 January 2024 using the MF III, with each shipment to carry around 450 head of cattle.
The first defendant, Colac Otway Shire Council (‘Council’), is the port manager for the Port under the provisions of the Port Management Act 1995 (Vic) (‘PMA’). The defendants allege that the role of port manager has been delegated by the Council to the second defendant, Fiona Waddington (‘Waddington’). Further, because no harbour master has been appointed, they allege that Waddington is also the harbour master of the Port by operation of s 44G of the PMA.
On 17 January 2024 Waddington wrote to BSF giving notice of her purported exercise of power as harbour master to direct, in accordance with s 232 of the Marine Safety Act 2010 (Vic) (‘MSA’), that neither the MF III nor the MF IV may enter the waters of the Port (‘direction’). The effect of the direction is to prohibit BSF from using either vessel to transport cattle and fertiliser from and to King Island via the Port pursuant to its agreement with TRT.
The plaintiffs commenced this proceeding on 25 January 2024. They seek to quash the direction on the following grounds:
(a) Waddington took into account irrelevant considerations and/or failed to take into account relevant considerations;
(b) a breach of the rules of natural justice;
(c) unreasonableness; and/or
(d) an absence of a delegated power.
On the same day the plaintiffs applied on summons for orders including:
An interlocutory injunction until the trial of this proceeding or until further order the defendants be restrained whether by their delegates, servants or agents or otherwise howsoever from:
(a)relying on the written direction dated 17 January 2024 purported to be given by the second defendant to the first plaintiff pursuant to s 232 of the Marine Safety Act 2010 (Vic) to prevent the MF III or MF IV vessels from entering the waters of the Port of Apollo Bay; and
(b)from otherwise preventing or interfering with the MF III or MF IV vessels from entering the waters of the Port of Apollo Bay.
I concluded, from the reasons that follow, that the plaintiffs’ application for an interlocutory injunction should be dismissed.
Evidence
The plaintiffs relied on the following evidence:
(a) affidavits of David Harris (‘Harris’), Managing Director of the plaintiffs, sworn 24 January, 31 January and 1 February 2024;
(b) affidavit of John Castles (’Castles’), consultant to BSF, sworn 1 February 2024; and
(c) Apollo Bay Breakwater Damage Investigation Stage II – Detailed Site Assessment and Repair Options dated 6 December 2017 (‘breakwater damage investigation report’).
The defendants relied on the following evidence:
(a) affidavits of Waddington sworn 25 January and 31 January 2024; and
(b) affidavit of Michelle Dixon (‘Dixon’), solicitor for the defendants, sworn 31 January 2024.
The plaintiffs objected to paragraph [7] of the Dixon affidavit, and the document referred to in that paragraph, being admitted into evidence. I have not had regard to that evidence.
Statutory provisions
It is not in issue that the first defendant is the appointed port manager of the Port pursuant to the PMA.
Under s 44C of the PMA the port manager of the local port may delegate, in writing, any power conferred on it by or under the PMA to any of its employees. Waddington said she is employed by the Council as port manager and has held that role since June 2023.
It is not in issue that no harbour master has been appointed for the Port. That situation is governed by s 44G of the PMA as follows:
(1) This section applies if there is no harbour master for a local port.
(2)Sections 221, 232, 233, 234, 235, 236, 237 and 238 of the Marine Safety Act 2010 apply as if a reference in those provisions to a harbour master were a reference to the local authority for the port.
Waddington said the effect of this provision is that by virtue of her role as port manager, she is also the harbour master of the Port.
The objects of the MSA are, unsurprisingly, directed to the safety of marine operations and management of safety risks including in the marine operating environment.[1] The concept of ensuring safety is set out in s 23 of the MSA:
[1]Marine Safety Act 2010 (Vic) (‘MSA’) s 14.
(1)To avoid doubt, a duty imposed on a person under this Act or the regulations to ensure, so far as is reasonably practicable, safety, requires the person to—
(a)eliminate risks to safety so far as is reasonably practicable; and
(b)if it is not reasonably practicable to eliminate risks to safety, to reduce those risks so far as is reasonably practicable.
(2)To avoid doubt, for the purposes of Parts 2.2 to 2.6 or regulations made for the purposes of those Parts regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring safety—
(a)the likelihood of the hazard or risk concerned eventuating;
(b)the degree of harm that would result if the hazard or risk eventuated;
(c)what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
(d)the availability and suitability of ways to eliminate or reduce the hazard or risk;
(e)the cost of eliminating or reducing the hazard or risk.
The functions of harbour masters are set out in s 230 of the MSA:
(1) The functions of a harbour master are as follows—
(a)to control and direct vessels entering and leaving the waters for which he or she has been engaged, including the time and manner of doing so;
(b)to control and direct the navigation and other movement of vessels in those waters;
(c)to control and direct the position where and the manner in which any vessel may anchor or be secured in those waters;
(d)to control and direct the time and manner of the taking in or discharging from any vessel of cargo, stores, fuel, fresh water and water ballast in those waters;
(e)to control and direct the securing or removal of any vessel in those waters in, from or to any position the harbour master thinks fit;
(f)any other functions that are conferred on harbour masters by or under this or any other Act.
(2)A harbour master must carry out his or her functions under subsection (1) in a manner—
(a)that ensures the safety of persons and the safe operation vessels; and
(b)that minimises the effect of vessel operations on the environment.
The MSA gives the harbour master all of the powers that are necessary and convenient to enable him or her to carry out those functions.[2]
[2]Ibid s 231.
The defendants rely on s 44G of the PMA as the source of power to give the direction under s 232. The plaintiffs argued that because the above sections of the MSA are not picked up by s 44G of the PMA, they were not relevant to the matters to be taken into account by Waddington in performing the functions of a harbour master. The defendants disagreed, arguing that the PMA and MSA were part of a regulatory scheme directed to, amongst other things, the safety of ports. They argued it would be irrational if the particular provisions of the MSA concerned with the role of the harbour master in ensuring safety at ports did not apply to the exercise of power under s 232 to give directions. I will not resolve this issue in this ruling. It is sufficient for me to note that there is considerable force in the argument made by the defendants. The sections of the MSA set out in s 44G(2) of the PMA relate to the requirement for a harbour master to have and produce an identity card; the power of a harbour master to give, amend, revoke and carry out directions; the penalties for failure to comply with a direction of a harbour master under that chapter; and the protection of a harbour master from liability for any act or omission done in good faith.[3] It is at least arguable that the power of a harbour master to give directions is to be exercised in a manner that is consistent with the objects and general scheme of the MSA.
[3]Ibid ss 221, 232–238.
The direction was given by Waddington under s 232 of the MSA. This section reads:
(1) A harbour master may from time to time—
(a)subject to subsections (4) and (5), give written directions for or with respect to vessels entering or within waters for which the harbour master has been engaged; or
(b)give written directions applicable to, or oral directions to, pilots who have the conduct of vessels entering or within pilot required waters for which the harbour master has been engaged.
(1A)Without limiting subsection (1), directions under that subsection may do any one or more of the following—
(a)prohibit entry by any vessel to or require the removal of any vessel from the waters for which the harbour master has been engaged, if the harbour master has reasonable cause to believe that the vessel—
(i)is unseaworthy; or
(ii)is in imminent danger of sinking and causing an obstruction to navigation in those waters; or
(iii)is in imminent danger of causing serious damage to the marine environment or property in those waters;
(b)control and direct the navigation and other movement of vessels in the waters for which the harbour master has been engaged;
(c)control and direct the position where and the manner in which any vessel may anchor or be secured in the waters for which the harbour master has been engaged;
(d)control and direct the time and manner of the taking in or discharging from any vessel of cargo, stores, fuel, fresh water and water ballast in the waters for which the harbour master has been engaged;
(e)control and direct the securing or removal of any vessel in the waters for which the harbour master has been engaged in, from or to any position the harbour master thinks fit;
(f)any other thing for or with respect to the management of the operation of vessels in the waters for which the harbour master has been engaged.
(2)Before giving a direction under subsection (1), a harbour master must take into account—
(a)the safety risk, or the nature and level of a safety risk, that the direction is intended to minimise or eliminate;
(b)whether there are alternative ways (legislative or otherwise) to address the matter to be addressed by the direction;
(c)the expected benefits and costs of the direction on those persons likely to be affected by the direction, if given.
Again, the parties differed as to the proper construction of this provision. The plaintiffs argued s 232(1)(a) could not apply because neither the MF III nor MF IV were ‘entering or within waters for which the harbour master [had] been engaged’ when the direction was given.[4] The plaintiffs also submitted that Waddington was required to have reasonable cause to believe the matters set out in s 232(1A) before making a direction under s 232(1)(a), and that there were no grounds for a reasonable belief that the MF III was unseaworthy or in imminent danger of causing serious damage to the marine environment or property.[5] The defendants argued the plaintiffs’ construction was inconsistent with the plain meaning of the words of s 232(1)(a), and that it would clearly apply to those circumstances where Waddington was on notice of BSF’s intention to have the MF III enter the Port for the purpose of unloading cattle and taking on fertiliser. Without resolving the issue I again find that there is force in the defendants’ argument as to the proper construction of s 232(1)(a). The provision does not appear to be limited to a circumstance where a vessel is in the process of entering or is already within the waters of a port under the jurisdiction of the harbour master, but is more broadly directed to the power of the harbour master to determine what vessels may enter port waters and subject to what conditions.
[4]Ibid s 232(1)(a).
[5]Ibid s 232(1A)(a).
Background
Waddington said her responsibilities as port manager included liaising with other government departments, particularly the Department of Transport and the Department of Energy, Environment and Climate Action, including in relation to operational matters, and with bodies such as the Great Ocean Road Coast and Park Authority (‘GORCAPA’) and the Port of Apollo Bay Consultative Committee (‘POABCC’). She said GORCAPA is due to take over management of the Port on 30 June 2024. She described POABCC as a community consultation forum for Council in relation to the use of the Port. She said she oversees the safety of operations at the Port and contractors carrying out works, and liaises with scientists in relation to environmental issues that may arise.
Waddington gave the following description of the Port:
The Port is primarily used by recreational boat owners, including by the Apollo Bay Sailing Club, and commercial fishing vessels, and has a number of permanent swing moorings. It includes a small beach and is incorporated, in part, in the Apollo Bay Coastal Reserve. A “Google Maps” satellite picture of the Port is copied below.
Waddington said:
To my knowledge the Port has not been used to unload cattle or commercial goods, other than for use as a fishing port, since, at the latest, 2012. I am informed by Mr Marcus Pola, an operation teams leader with Council, and formerly a Port Officer engaged in 2012, and verily believe, that this did not occur while he was Port Officer. Nor has this occurred since I have been employed by Council since 2016. I am informed by Mr Brian Shields, a former Harbour Master for Port, and verily believe, that at one point in time, for a period of about 2 or 3 years ships carrying cattle, about once or twice per year, had been permitted into the Port but that this was ultimately stopped for environmental reasons.
Harris responded to this evidence as follows:
At paragraph [74] of the Waddington Affidavit, Ms Waddington says that she is informed by Brian Shields that ships carrying cattle were permitted for a short period of two or three years but that was ultimately stopped for environmental reasons. I disagree with any suggestion that environmental reasons had anything to do with the cessation of the freighting of cattle to the Port. I have undertaken extensive research and spoken to two former Harbour Masters and Mr Matthew Bayles, who owned the MF III at the time, all of whom have confirmed that the unloading of cattle was not a problem. This issue has never been raised, including by Ms Waddington herself. Ms Waddington has produced no record whatsoever in support of this.
It does not appear to be in issue, based on the above evidence, that the Port has not been used to transport cattle or commercial goods, other than in association with its use as a fishing port, since 2012. On this evidence I am unable to resolve why the unloading of cattle at the Port stopped in 2012. It is not in issue that there were only a small number of shipments of cattle through the Port between 2010 and 2012.
Harris said there are limited freight services currently operating from King Island. He said that since 2022 general freight travelling between King Island and Melbourne goes via Devonport, which is a lengthy trip. He said that trip was unsuitable for shipping perishables and livestock primarily because of the duration and costs involved.
Harris said:
BSF has determined that it will offer a livestock freight service between King Island and Western Victoria. There are only two available ports to the plaintiffs for berthing in Victoria: the Port of Apollo Bay and Port Welshpool.
BSF has previously trialled transporting livestock from King Island to Port Welshpool in Gippsland. Although it is possible to freight livestock to Port Welshpool from King Island, it is a lengthy trip with an approximate distance of 156 nautical miles and journey of around 23 hours and not a viable option. The transhipping cost is around $160 per head of cattle . Moreover, the trip is treacherous due to the weather conditions prevailing in Bass Strait and is only a realistic option for short ‘weather windows’ - which limits the available sailing days. For those reasons, I do not believe it to be commercially viable or realistic for BSF to freight livestock to Western Districts of Victoria, South Australia or New South Wales from King island via the Port of Welsh pool.
Berthing at the Port of Apollo Bay is commercially viable as it involves an approximate distance of 77 nautical miles and journey of around 10.5 hours from King Island to the Port of Apollo Bay. The transhipping cost is around $80 per head of cattle. The prevailing weather conditions from King Island to the Port of Apollo Bay are more favourable and the trip is able to be taken is more predictably and less risky (particularly for livestock) than the Port of Welshpool.
Since June 2022, BSF has produced written plans to operate a commercial freight service between King Island and Victoria based in the Port of Apollo Bay.
As part of BSF’s plan to commence a commercial freight service from King Island to the Port, Harris produced a map to help illustrate some relevant shipping routes in Bass Strait. The port in King Island is at Grassy. Harris’ map is shown below:
Harris said that in or around June 2023 he began discussions with the Council in relation to the use of the Port for freighting livestock, including through his then solicitors Kings Lawyers. He said he was informed that BSF was required to apply for a certificate under s 97N of the Planning and Environment Act 1987 (Vic) that its proposed use of the Port complied with the requirements of the planning scheme (‘s 97N application’) before it could proceed to use the Port.
Waddington said that in or around May or June 2023, she met with Castles (who was at the time employed by the Council as the port transition manager) and Harris in relation to the possibility of the plaintiffs using the Port to freight cattle. She said in about September or October 2023, Castles told her that the plaintiffs wanted to run a trial of bringing four ships loaded with cattle into the Port, and that he had told Harris this would not be possible. She said later in 2023, Castles said to her that Harris told him that he was going to get four shiploads of cattle through the Port prior to Christmas. Castles also said to her that this was not going to happen because the plaintiffs did not yet have a certificate of compliance.
On 24 August 2023, Kings Lawyers emailed a s 97N application for a certificate of compliance and supporting documents to the Council. The application claimed existing use rights over the Port for the purpose of a harbour and wharf.
Waddington said she met with Castles on 28 November 2023 to discuss drafting a ‘set aside’ determination to specify what activities could be conducted at the Port, to support a permit to manage cargo. They agreed feedback should be sought from POABCC and arranged a meeting of that organisation to be held on 23 January 2024 to discuss the matter. Waddington said the set aside determination remains under consideration.
On 30 November 2023, Harris emailed Castles with suggested conditions of entry for his vessels into the Port.
On 18 December 2023, the Council requested that BSF provide further information in support of its s 97N application. On the same day Harris queried why the information requested needed to be provided. A certificate of compliance has not yet been issued to the plaintiffs.
On 5 January 2024, Harris had a telephone conversation with a Council officer concerning entry of his vessels into the Port. Harris made a note of the conversation which includes:
He told me that it didn’t matter that he has only just given me these names because it would be another 4 months or so before we could access the port because they had to come up with port regulations to handle our vessels and have them gazetted and approved by the Victorian Government.
…
He told me that he was now the acting port manager and not part of the planning team and he and Fiona Waddington had decided to initiate this regulatory process. I told him I been working with his predecessor with operating procedures for handling our vessel for months but heard nothing about this new process.
I told him that he obviously knew we were wanting to bring the MF III into the harbour this January. This development, looked like the Council was out looking for ways to prevent the use of the harbour for its designated purpose.
…
I told him the MF III will be using the port and wharf during the last week of January and I can’t see there is anything in place that can legally prevent that from happening. Its up to him to find a law or regulation to stop the open use of that facility for the purpose it was built and for us to trade out of that port.
On 8 January 2024, Harris emailed Luke Godfrey, an officer at Safe Transport Victoria. The email states, in part:
I think It best that Safe Transport Victoria issue the permission to enter Apollo Bay rather than the Council because the management of the Port is in transition to GOCAPA and the Council does not have the resources and experience to deal with the marine safety issues.
…
We currently operate at 5 Bass Strait Local Ports and have extensive experience operating into Welshpool with the MF III dropping cattle of for sale in Gippsland from both King and Flinders Islands. I enclose the most recent approval to berth at Welshpool from Bevis Heyward for our new ship the MF IV. The MF III has been going into Welshpool for so long we can’t find the original berthing approval documents! If you wanted a referral regarding our stock handling operations, can I suggest you talk to Bevis Heyward who is very familiar with our operations.
The following day Harris forwarded the email he had sent to Godfrey to Waddington.
Castles ceased working with the Council in early January 2024 and immediately took up a position as a consultant to BSF. Waddington said she met with Castles on 8 January 2024 and was told BSF proposed to bring a ‘trial load of cattle’ to the Port on Monday 15 January 2024. Waddington said ‘this was the first notice that [she] received of the plaintiffs’ intention to bring a shipment into the port’. She said she telephoned Harris the same day to enquire about his intention to bring a shipment into the Port, and was told the plaintiffs were planning to bring a shipment of cattle on 22 January 2024, not 15 January 2024. She said Harris told her:
(a)Council’s planning requirements regarding a certificate of compliance were ‘a load of rubbish’;
(b)he had been told that ‘the Port has always been open for vessels and hadn’t been closed for 15 years’;
(c)the Plaintiffs have the right to use the Port;
(d)he had engaged Godfrey of Safe Transport Victoria to confirm the suitability of the Plaintiffs’ vessel, MF III, to enter the Port and navigate safely to perform the proposed operation;
(e)the engagement of Godfrey would take the pressure off her by having someone else assess the suitability of the vessel; and
(f)Harris would be coming down to the Port with Castles to check the requirements of the Port.
Waddington said she told Harris that this was news to her and that she would need to know how Harris planned to bring the shipment into the Port. This was because there were other users of the Port and the Council would need to be prepared.
Harris and Castles attended the Port on 11 January 2024. Waddington said Harris told her:
(a)the Plaintiffs’ ship, the MF III, had been ‘booked’ to come into the Port on 22 January 2024;
(b)the MF III would be carrying 460 head of cattle;
(c)it was proposed to transfer the cattle from the MF III into 7 or 8 semitrailers on the wharf at the Port;
(d)Council should adopt the TasPorts fee structure of $4 to $5 per head of cattle as an appropriate fee for the loading / unloading of cattle; and
(e)Council should adopt the conditions of operation for the Port for commercial vessels used by Port Welshpool in Gippsland.
Harris said that at no time during that discussion did Waddington raise with him any concerns in relation to the seaworthiness of the MF III; any safety risks; any risk of it sinking or obstructing navigation in the Port; or any imminent risk of causing serious damage to the marine environment or property in the Port. Waddington disputes this evidence and says she told Harris:
(a)she was concerned that the proposal would pose a risk of damage to the wharf structure, public safety, traffic management on the wharf, and environmental protection; and
(b)It was peak holiday period and that there are many tourists in Apollo Bay, many of whom visit the harbour wharves on foot.
Waddington said:
Mr Castles said to Mr Harris words to the effect that a professional traffic management company should be engaged to manage the vehicle access and the public area during the unloading. I then said words to the effect that:
(a)any traffic proposal could not be considered by Council without provision of, at a minimum, a Traffic Management Plan and an Environmental Management Plan for the Port prepared by the Plaintiffs so that Port management could consider the risks and fulfil obligations regarding safety and environment;
(b)the Plaintiffs would also need to inform Council of the fully laden truck weight and axle configuration so that the capacity of the wharf to support the load could be confirmed;
(c)remedial work that had been scheduled for some time is scheduled to begin at the end of January 2024 for the rock wall that supports the wharf at the Port.
Waddington said that following the discussion with Harris and Castles, she sent an email to them that relevantly stated:
As discussed, there are some documents that will need to be approved in relation to the proposed trial run as follow:
1.A traffic management plan.
2.An environmental management plan – all environmental risks in relation to your operation should be addressed in the plan.
Additionally, please confirm the length and axle configuration of the semitrailer vehicles and confirmation of the fully laden weight so that the load bearing capacity of the wharf area can be confirmed.
Please note that only one heavy vehicle can access the wharf at one time. Additional vehicles must be parked away from the port precinct until needed.
It would be appreciated if this information could be provided by close of business on next Monday 15 January.
On 14 January 2024, Harris emailed Waddington attaching copies of the Port’s Safety and Environment Management Plan (‘SEMP’), BSF’s Ships Safety Management Plan for the MF III and the Tasmanian Department of Agriculture Guidelines for Transport of Livestock Across Bass Strait. Waddington said the email did not include any of the information she had requested in her email on 11 January 2024.
In the same email, Harris set out BSF’s proposed plan to be adopted in relation to berthing the MF III and unloading cattle at the Port, and noting that BSF agreed to comply with environmental, safety and animal health standards to which he referred. Later that day Harris sent another email providing further details of the berthing and unloading plan. On 15 January 2024 Harris emailed Waddington attaching PIANC calculations for the MF III. The PIANC calculations address the suitability of the Port for entrance and use by a vessel of particular dimensions having regard to the width and depth of the Port channel, the bend turning radius and the turning basin diameter of the Port.
Waddington described the meeting she attended on 15 January 2024 with Council officers, representatives of the Department of Transport and representatives of GORCAPA:
The meeting had been organised for late 2023 to discuss implementing a Set Aside proposal for the Port. Given the Plaintiffs’ request to sail in the MF III to the Port, the discussion at the meeting was broadened to discuss the Plaintiffs proposal to bring a ship into the Port and feedback was sought from the people present. The representatives of GORCAPA queried whether this would be compatible with the existing use of the Port and raised concerns about the broader impact beyond the Port on the coastal land. The representatives of Safe Transport noted that there were matters that needed to be looked into including the structural integrity of Port infrastructure such as the bollards that would need to be used, piles and wharf, the depth of the water for safe navigation of the vessel, and the proximity to other vessels.
Waddington said on 16 January 2024 she received an email from Castles, copied to Harris, which included:
Fiona stated the [Council] had a requirement for an environmental plan and traffic plan prior to the commencement of any trial.
Fiona pointed out that the traffic management plan is important and is to take special note of the high volume of tourists and pedestrians. Also noting the consideration of other harbour users in this busy time of the year. Also BSF confirm it will provide and comply with the traffic management plan.
Waddington said that on 16 January 2024 she attended an online risk workshop with representatives of the Safe Transport arm of the Department of Transport and the local ports representatives of the Department of Transport, including Godfrey and Andrew Hays from the Port of Portland. Waddington said:
The purpose of this meeting was to discuss the potential risks of the Plaintiffs’ proposed operation. My recollection is that it was organised by Lyn Kissler in her capacity as the Local Ports representative after the meeting on 15 January 2024. A large number of concerns about the plaintiffs’ proposal were raised at that meeting. This included potential risks to the public in an open wharf, the matters that had been raised the previous day by Safe Transport, the impacts on other users and how activities that could be happening concurrently could be managed and the fact that given the time of year there was higher than usual activity at the Port and therefore greater risks to other users of the Port, particularly pedestrians on the public wharf.
Waddington said that on 17 January 2024, she met at the Port with two officers of Safe Transport Victoria and Hays to discuss the suitability and amenity of the Port to enable the plaintiffs’ proposal. Waddington said:
Concerns were raised by each of them in relation to matters including protection of wharf infrastructure including whether the mooring bollards [would] be strong enough to hold the vessel, particularly if there was a strong crosswind on the North side. We also discussed concerns about a small area in the Port proposed to be used by the Plaintiffs which is compromised by rock. The movement of the cattle off the ship could cause the ship to dip down leading to the propellors of the boat touching the ground in that area. Ms Bourne and Mr Vaggs said to me words to the effect that they would provide a report to me that identified the concerns discussed that day. That report was sent to me “for internal use” on 24 January 2024.
Waddington said that following the meeting, she was copied into an email from Hays to Godfrey in which Hays said:
My areas of concern that need to be addressed are:
•Can the ramp safely land on the wharf with the piles
•The secure mooring of the vessel needs to be addressed with a mooring plan
•How will the public safety aspect of the operation be managed
•There needs to be an approved traffic management plan that also included the staging of trucks
•How will simultaneous operations such as fishing vessels be managed
•The environmental parameters need to be carefully assessed and agreed to
•The environmental management plan needs to be approved and agreed.
Waddington said that on 17 January 2024 the Master of MF III, Brett Startup, attended the Port and in conversation with her said words to the effect that:
(a)he had some concerns in relation to cattle if there was a surge, being a vertical movement of water up or down, in the harbour. This would depend on weather conditions;
(b)Mr Startup would not unload the cattle if the weather conditions were not suitable, with the contingency plan being to return to King Island with the livestock and unload there. If Grassy port on King Island was not able to accommodate the MF III due to another vessel being in the port, Brett would plan to beach the vessel (it is designed to do that) and let the cattle out as they can only be on the boat for a certain number of hours; and
(c)transporting cattle can be a ‘tricky process’ and that when the cattle are unloaded it has to be done very carefully because they have sea legs and can be unsteady.
On 17 January 2024, Castles sent an email to a Council officer providing the truck load and weight specification for the planned 44 head of cattle load per truck during the offloading process.
Waddington made the direction on 17 January 2024. She said:
I made the Direction given my concerns in relation to the safety of the Port Infrastructure, potential safety risks to other users and risks to the environment. Because the Plaintiff had not provided to me any of the information that I had requested I did not have enough information to determine whether those risks could be avoided or mitigated appropriately.
Waddington said that by the time of sending the direction to Harris on 17 January 2024, she had not received any of the information requested by her on 11 January 2024.
The content of the direction is reproduced below:
Colac Otway Shire Council (Council) is the port manager for the local Port of Apollo Bay (Port) and is responsible for the safe operation of the Port.
I understand that Bass Strait Freight, owner of the vessels, MF III and MF IV (Vessels), is seeking to trial the operation of its vessel/s between Tasmania, Bass Strait islands and the Port in the week commencing 22 January 2024.
You verbally advised me on 11 January 2024 of your intention to bring your vessel/s into the Port of Apollo Bay. You advise that you intend to berth on 22 January 2024 for the purpose of bringing freight from King Island.
In response to your proposal, I have requested that you provide sufficient information to enable me to undertake an adequate review and assessment. I have a responsibility to ensure that your proposal can be undertaken at the Port in a manner that is safe and does not detrimentally impact other vessels, users and/or staff of the Port.
In accordance with the Port Management Act 1995, I have direct responsibility to ensure that the operations of the Port are carried out safely, efficiently and effectively. I have further responsibilities to ensure that operations of the Port and port facilities, including wharves, jetties, slipways, breakwaters, moorings, buildings and vehicle parking are not adversely impacted. I have not received adequate information by 15 January 2024 as was required to enable an appropriate assessment in relation to the above considerations.
Through the introduction of the Marine Safety Act 2010 new requirements mandating safety duties for all parties involved, including the port manager and vessel master, in marine safety have been established.
The Port of Apollo Bay has no separately appointed Harbour Master and in accordance with section 44G of the Port Management Act 1995, I act as the Harbour Master for the purposes of the Marine Safety Act 2010.
The relevant safety and environmental risks have not been able to be identified and assessed due to inadequate information or time provided. It is my position as Port Manager / Harbour Master that your vessels should not be permitted to enter the Port.
In accordance with section 232 of the Marine Safety Act 2010, I exercise my authority as Harbour Master and direct that neither the Matthew Flinders III nor Matthew Flinders IV vessels may enter the waters of the Port of Apollo Bay.
This direction, made under section 232 of the Marine Safety Act 2010, must be complied with until you receive written confirmation that this direction made under section 232 has been lifted and/or replaced with any appropriate approvals.
In accordance with section 237 of the Marine Safety Act 2010 it is an offence not to comply with this direction and substantial penalties may apply.
On 18 January 2024 Harris emailed Waddington requesting the engineering specifications for the wharf and the roadway alongside the main wharf, and any available bollard pull specifications in the wharf area. Harris said in the email that this was the third occasion he had requested the information. Harris’ email requested significant detail of the council’s own regulations, procedures and facilities, ostensibly to align the plaintiffs’ traffic management plan (‘TMP’) and environmental management plan (‘EMP’) submissions, and for the plaintiffs to more comprehensively assess their own business risks while operating from the Port. Waddington said this was the first time she was aware the plaintiffs had requested this information. On the same day Castles emailed the Council stating, among other things, that the plaintiffs would provide a TMP and EMP and asking whether the Council was prepared to consider drafts of these documents.
On 22 January 2024, Harris emailed Waddington attaching a draft EMP. Waddington said the document appeared to be the second version of the plaintiffs’ EMP. Waddington said she had not been provided the plaintiffs’ first draft EMP.
Waddington received a TMP from the plaintiffs on 24 January 2024.
On 30 January 2024 Harris emailed Waddington attaching a third version of the plaintiffs’ EMP that, according to the email, addressed the issue of ballast water which was not covered by the first two versions.
On 30 January 2024 Castles sent an email on behalf of the plaintiffs to the Council proposing a meeting to discuss topics including operations time of the day; mooring location; mooring method; loading and unloading methodology; truck parking; fees and charges; odours; disturbance of sand during the operation; and impact to fishing co-op water pump. Waddington said:
The types of matters proposed to be discussed with Council by Mr Castles in his email are important issues that must be addressed in order for the Council and me to consider the plaintiffs’ proposal.
Consequences if injunction not granted
Harris said, in support of the interim relief sought:
This matter is urgent; as mentioned, BSF has a contract with TRT Pastoral to move 3,000 head of cattle from King Island to Western Victoria and freight back to King Island on the MF Ill. The vessel with the first shipment was scheduled to berth at the Port of Apollo Bay on 22 January 2024, or in the early hours of 23 January 2024. This shipment was cancelled on 23 January 2024 and rescheduled to unload at Port Welshpool. A second shipment is scheduled to arrive at the Port of Apollo Bay on 29 January 2024 and the cattle need to be brought in and loaded on King Island from 27 January 2024.
If the injunction is not granted, the plaintiffs business of freighting livestock from King Island to Western Victoria will, in essence, be destroyed. Further, it would severely limit the ability of King Island cattle owners to market their livestock west and north of Melbourne. As I discuss above, the movement of livestock from King Island to Western Victoria by the Port of Welshpool is not commercially viable and the plaintiffs will suffer significant business and reputational damage if they are unable to complete their contract with TRT Pastoral.
Further, the welfare of the livestock will be affected by the injunction not been granted. As was mentioned in correspondence with the defendant, preventing the MF III berthing at the Port of Apollo Bay could potentially cause severe stress and injury to the cattle that are contractually required to be transported from King Island to mainland Australia. From a health and safety perspective, the planned course of transport is the best option.
Harris said the trip from King Island to Welshpool involves an east-west transit that is more challenging than transits running north to south because of the challenges caused by strong westerly weather and rough seas compounded by the additional length of the transit from King Island to Welshpool. He said the route from King Island to Apollo Bay is by far the best and shortest open sea transit and allows for shorter weather windows to be taken advantage of in order to facilitate the safe transport of livestock.
Waddington said on 30 January 2024 she had a conversation with Hays asking whether the Port of Portland could accommodate the MF III for unloading and loading. She said Hays indicated that may be possible, and that Geelong and Melbourne ports may also be suitable. Harris said he disagreed ‘that Portland or any other port in Victoria is a viable option for the [MF III] to freight livestock from King Island’. He said:
I have undertaken comprehensive research over the past two years into the viability of alternative ports in reaching my view that the Port of Apollo Bay is the only viable option for transporting livestock from King Island to Western Victoria, including in relation to the Port of Welshpool and the Port of Portland. This includes reviews of maps, data and configurations on possible ports and information obtained from relevant port officers.
…
The trip from King Island to the Port of Apollo Bay has an approximate distance of 80 nautical miles. As referenced at paragraph [20] of the First Harris Affidavit, the trip from King Island to the Port of Welshpool is lengthy with an approximate distance of 156 nautical miles. Similarly, it is approximately 165 nautical miles from King Island to Melbourne or Geelong and 170 nautical miles to Portland. The distance from King Island to the Port of Apollo Bay is the most viable route as it is half the distance.
Harris added that the Port of Portland was unsuitable because the wharf height relative to the water level is too high to unload livestock.
Risks associated with plaintiffs’ proposed use of the Port
In her first affidavit Waddington gave evidence about the matters she had considered when issuing the direction. These included:
(a) infrastructure risk including whether the western rock wall, which is due for remediation, could be further compromised or damaged by the proposal;
(b) traffic management requirements;
(c) the potential impacts on other users of the wharf and risks to the public, noting that during summertime the wharf is very busy with holiday makers. Waddington said that there needed to be areas appropriately separated so that members of the public including pedestrians were protected from risk;
(d) the size of the MF III relative to the Port giving rise to increased risks for other port users and the vessel, including but not limited to water depth;
(e) whether wharf infrastructure had sufficient strength to handle the unloading of cattle, and other safety concerns relating to the unloading of cattle that may arise from matters such as water depth;
(f) environmental risks including in relation to cattle effluent, noting among other things that the fisherman’s co-op at the Port uses water from the harbour to circulate through fish tanks for human consumption.
The remediation work to the western rock wall referred to by Waddington is to occur in the coming months. The western rock wall is part of the supporting structure for the wharf in the area where it is proposed that the MF III will be moored and where cattle are to be unloaded onto semitrailers. Waddington said that on 16 January 2024 and again on 30 January 2024 she spoke to an officer of engineering consultancy firm, Wallbridge Gilbert Aztec, about preparing an advice on the structural integrity of the Port wharf and infrastructure and suitability of the plaintiffs’ proposed use of the wharf. She said Council expects to receive an expert engineering report in approximately two weeks.
The breakwater damage investigation report prepared in December 2017 is an engineering report that addresses damage to the western rock wall and the remediation work that was necessary as a consequence. Castles said the report was used by the Council until late 2023 as the basis for awarding contracts for repair and remediation work including to rectify erosion to the western wall of the break wall adjoining the lower landing at the Port. He said the report was also used for the purposes of planning future capital works. He said the report was available to Waddington in her role. Castles said in around mid-2021 Waddington completed a project to install a fuel tank on the low landing and break wall at the Port, and for that purpose completed a load/stress test to ensure there was structural integrity sufficient to cater for a loaded fuel truck, and to ensure adequate space for the truck to turn around.
Plaintiffs’ submissions
The risks identified are either not risks associated with the plaintiffs’ proposed use of the Port, or are not significant risks. The environmental risks referred to by Waddington are not contained in the Council’s own environmental plan, the SEMP, that was current in 2018. Further the plaintiffs have developed and provided to the defendants both an EMP and an TMP that respond to the SEMP and take account of any risks identified in that document.
While the EMP provided by the plaintiffs refers to the possibility of transporting cargoes including fertiliser, fuel and dangerous goods, for the purpose of this application the plaintiffs undertake not to transport any cargo other than livestock. The EMP provided by the plaintiffs is detailed and thorough, and includes more detailed content in relation to a relevant risk register. The EMP responds appropriately to Waddington’s concern about ballast water. It is evident that the EMP takes into account documents relevant to the assessment of environmental issues that may be associated with the plaintiffs’ proposal. The plaintiffs have also provided to Waddington a comprehensive safety management system document relating to operation of the MF III.
Castles’ evidence and the breakwater damage investigation report show there is no credible risk to port infrastructure associated with the plaintiffs’ proposal. The use of loaded fuel trucks in the Port area referred to by Castles support the conclusion that there is no material risk from semitrailers laden with cattle to be used in the offloading process.
The risks associated with ongoing operation of the direction are substantial. These included the increased cost and risk associated with transporting cattle from King Island to Port Welshpool. The transport of cattle from King Island must occur in the short term because of the contractual obligations owed to TRT, and because of the shortage of available feed for the cattle on King Island. The risks to the plaintiffs, the cattle to be transported, and to TRT if the direction remains in force significantly outweigh any risk at the Port if the plaintiffs are able to proceed with their plan to transport the cattle via Apollo Bay.
The Port is a commercial port with no particular restrictions on vessels entering. The defendants have searched around trying to identify problems with the plaintiffs’ proposal rather than engaging as they should with the documents and information provided by the plaintiffs, including the EMP.
Defendants’ submissions
The balance of convenience involves consideration of the commercial interests of the plaintiffs, namely what profit they may generate from the transport of livestock and other cargo to and from King Island to Victoria, against the unresolved risks to safety identified in the evidence of Waddington. These potential risk to safety should weigh far more heavily in the balance than the commercial interests of the plaintiffs.
The plaintiffs’ proposal for the transport of livestock and cargo to the Port is being developed on the run. The third version of the plaintiffs’ EMP was only provided on 30 January 2024. Castles’ email to the council on 30 January 2024 shows that important issues relating the plaintiffs’ proposal remain under discussion and unresolved.
The following risks are identified by Waddington, and are important. First is the risk to marine infrastructure particularly arising from remediation works to be undertaken in the near future and questions as to the structural integrity of the wharf and infrastructure. The breakwater damage investigation report is now over six years old. It is appropriate for Waddington to obtain up to date in engineering advice in light of the plaintiffs’ proposal.
Second are concerns raised by Safe Transport Victoria in a memorandum dated 18 January 2024. Relevantly those concerns include:
3.9The presence of other vessels in the area either moored alongside or at designated anchorages or moorings within the bay must be considered before allowing any navigation or mooring evolution of the MATTHEW FLNDERS III to take place.
3.11It is the responsibility of the local council to assure themselves that the wharf structure will be suitable for mooring and unloading the vessel. The strength of the mooring piles and the probable incompatibility of the unloading arrangement with the fender piles at the wharf are both concerns.
While the recent evidence of Harris is to the effect that he has made necessary arrangements with the owner of one vessel usually moored in the area where unloading is proposed, there is no evidence of consideration of other vessels in the Port.
Third, the following concerns raised in an internal council email on 16 January 2024 have not been addressed or sufficiently addressed:
Officers (fulfilling their port management responsibilities) do not have a final position at this time in relation to the operations by Bass Strait Freight:
•There is insufficient information to properly assess the proposal properly proposal in relation to the safety, effectiveness or efficiency of the harbour and port operations.
•There is insufficient information in relation to whether the current port facilities are appropriate for the proposed operation.
•Major infrastructure works are about to commence on the breakwater wall and we don’t know how the construction activity and David Harris’s proposed operations may impact each other or the broader port operations if they are introduced concurrently.
•We are in a period of transition to GORCAPA and Council cannot introduce arrangements that may create future obligations or expectations on the incoming Port Manager without consent, and we don’t have sufficient information to seek agreement.
Appropriately, Waddington wishes to obtain the advice of experts in the area and to further consider relevant information.
Fourth, the master of the vessel has identified potential risks with the plaintiffs’ proposal that have not been addressed.
There has simply not been sufficient time or information available to Waddington to consider and effectively approve the plaintiffs’ proposal. This must be understood in the context of the discussion on 5 January 2024 in which Harris told the council MF III was coming to the Port in late January, and that there was nothing the Council could do to stop him. The situation of urgency has been created by Harris. The consequences of his actions should have been obvious to him. There is no planning permission for his proposed use of the Port. Further information had been required of him and he was on notice that his proposed use was not approved. He is the author of his own misfortune.
Inferences should be drawn against the plaintiffs because of the inadequacy of their evidence. A choice has been made not to put into evidence the contract with TRT. In those circumstances the Court cannot determine the contractual consequences of the plaintiffs being unable to use the Port. Dixon deposes that on 31 January 2024 she sent a letter to the plaintiffs’ lawyers for particulars of the ‘extensive research’ Harris deposed to have undertaken regarding the viability of other ports for the plaintiffs’ proposed operations. There has been no answer from the plaintiffs.
There are discretionary factors that weigh against the relief sought by the plaintiffs. The first is the utility, arising from the fact that no planning permission has been granted for the plaintiffs’ proposal which would prevent it proceeding in any event.
While the defendants accept for the purposes of this application that there is a serious question to be tried, the relative weakness of the plaintiffs’ case is relevant to a consideration of the balance of convenience.
Analysis
The principles governing the plaintiffs’ application are well known and were agreed by the parties.[6]
[6]Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Bradto Pty Ltd v State of Victoria (2006) 15 VR 65 (‘Bradto’).
While the defendants questioned the merits of the plaintiffs’ case they conceded, for the purposes of this application, that there is a serious question to be tried.
The key issue to be decided in this application is whether the balance of convenience favours the granting of an injunction. The Court must take whatever course appears to carry the lower risk of injustice.[7]
[7]Bradto (n 6) [26], [35] (Maxwell P and Charles JA).
For the following reasons I am not satisfied that the risks identified by the plaintiffs if the injunction is not granted are as great as they allege. First, there is an inconsistency between the plaintiffs’ position that the Port is the only viable option for the proposed transport of livestock and other freight between King Island and Victoria, and the content of the Harris email to Godfrey at Safe Transport Victoria on 8 January 2024 set out in paragraph [32] above. In that email, Harris described the plaintiffs’ ‘extensive experience’ transporting cattle on the MF III into Welshpool from both King and Flinders Islands for sale in Gippsland. Harris made no mention in the email of the risks associated with transporting cattle from King Island to Welshpool. The email suggests Welshpool was chosen as the destination port on those occasions for commercial reasons because of its proximity to the ultimate destination of Gippsland. The plaintiffs’ draft EMP states that ‘BSF does 185 transits to Flinders Island every year from Bridport to Welshpool’. According to the map provided by Harris, Welshpool is 140 nautical miles from Flinders Island, with a further 65 nautical miles to Bridport. These distances are relatively similar to the 160 nautical miles from Grassy on King Island to Welshpool. The evidence is consistent with the conclusion that Welshpool is a viable alternative destination port for the transport of cattle from King Island, and that Apollo Bay was chosen as the destination port largely on the basis of commercial considerations.
Second, there is no evidence upon which I could conclude that there is any significant risk of detriment to TRT or to the company that has purchased the cattle if the injunction is not granted. If Welshpool is a viable alternative port, there is no basis to conclude that the cattle will not be transported safely in accordance with the arrangement between BSF and TRT.
Third, the plaintiffs have not put into evidence the contract with TRT and have not responded to the defendants’ request for particulars of the ‘extensive research’ undertaken by Harris regarding the viability of other ports for the plaintiffs’ proposed operations. It was for the plaintiffs to produce any cogent evidence in their possession that resulted from the ‘extensive research’ undertaken by Harris in order to establish that alternative ports to Apollo Bay were not viable for the purpose of transporting cattle from King Island to Victoria. The defendants relied on the evidence of Waddington and some of the documentary evidence produced by the plaintiffs to put in issue whether Apollo Bay was the only viable port for transport of cattle from King Island to Victoria. Dixon’s evidence shows the defendants also asked the plaintiffs to provide evidence of Harris’ ‘extensive research’, noting that the ‘only evidence of the suitability of alternative Victorian ports for your clients’ proposed operations are Mr Harris’ opinions set out in his affidavits.’ Harris’ evidence in response was limited to his observations and enquiries relevant to the suitability of the Port of Portland; his enquiries about the ports of Port Fairy and Warrnambool, which he said were too small to handle the MF III; and his explanation of logistics relevant to the transport routes from King Island to Apollo Bay and Welshpool. I accept the defendants’ submission that an adverse inference should be drawn against the plaintiffs in relation to the contractual cost and degree of risk asserted by them if the injunction is not granted because of the failure to produce this evidence.[8]
[8]Jones v Dunkel (1959) 101 CLR 298; Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389.
Fourth, Waddington and the Council are continuing to consider the plaintiffs’ proposal to transport cattle to the Port. Waddington has commissioned an engineering assessment of any risk to port infrastructure associated with the plaintiffs’ proposal. Waddington has power under s 235 of the MSA to amend or revoke the direction. It is possible this ongoing process may result in the plaintiffs being permitted to use the Port facilities for transporting cattle in the near future.
I accept the defendants’ submission that the weight that should otherwise be given to the risks faced by the plaintiffs if the injunction is not granted is moderated by the circumstances in which the direction was made.[9] The plaintiffs have been on notice since mid-2023 of the obstacles to their proposal to transport cattle to the Port: first by the requirement to make the planning application and obtain a certificate of compliance; second by discussions with Council officers in late 2023 to the effect that the Council had not approved a trial of the plaintiffs’ proposal; and third by discussions in early to mid-January this year which confirmed that approval had not yet been given. It is evident from Harris’ discussion with the Council officer set out in paragraph [31] above that he was determined to proceed with trips by the MF III to the Port in late January 2024 come what may. The risk that the defendants would act to prevent that occurring must have been obvious to the plaintiffs. By proceeding to enter the arrangement with TRT knowing that a certificate of compliance had not been issued and that the defendants had not approved use of the Port for unloading shipments of cattle, the plaintiffs have been the architects of their own misfortune.
[9]StarTrack Express Pty Ltd v TMA Australia Ltd [2023] FCAFC 200 [80], [81] (O’Callaghan, Stewart and Button JJ).
I am satisfied that the risks to the Port infrastructure, operations and users, and to the environment identified by Waddington associated with the plaintiffs’ proposal to transport cattle to the Port are considerable and have not yet been fully assessed and resolved.
The risks identified by the defendants must be considered in the context of the time at which Waddington became aware of the plaintiffs’ proposal to transport cattle and other freight through the Port and the steps she took to respond to that application in the time that has been available to her. Further important context is that the Port has not been used to transport livestock or commercial freight, other than relating to the local fishing industry, since 2012, and that the history of transporting livestock at that time amounted to no more than one or two trips per year for two or three years. There is no recent history of the Port being safely used for the purpose proposed by the plaintiffs.
There is damage to the west rock wall of the Port that requires remediation. The remediation works are to occur in the near future. The evidence suggests that the rock wall is part of the supporting structure of the wharf in the area where the MF III would be moored and the plaintiffs propose to unload cattle. There is evidence that the damage to the rock wall that requires remediation was caused at least in part by erosion, a process that can be expected to have continued in the period since the breakwater damage investigation report was prepared over six years ago. The report identified the possibility of further deterioration of the rock wall when it said: ‘[t]here is a significant chance the slumping will worsen at periods when the beach level is low’.
I reject the plaintiffs’ submission to the effect that the breakwater damage investigation report resolved any of the defendants’ concerns about risk to the wharf structure associated with the plaintiffs’ proposal. I was not taken to any part of that report that responded directly to the use of the wharf proposed by the plaintiffs. Further, that report is now over six years old and identifies the significant risk of a worsening rock wall over time. The fact that fuel trucks access the wharf from time to time does not resolve Waddington’s concern about the potential damage to port structures associated with the plaintiffs’ proposal. Waddington’s response of commissioning an expert engineering report to address that risk appears reasonable. There has been no apparent delay by her in taking that step. In my view, the infrastructure risk identified by Waddington has not yet been resolved.
In his second affidavit Harris said:
The fuel truck accesses the wharf regularly without the necessity of a traffic management plan, traffic marshal and any bunting or safety signs. There is a precedent for what BSF is proposing to do. The fuel truck has a higher axel loading than tri-axel stock trailers (there is a lot of air in a stock truck).
I was not taken to any evidence to make out these assertions. The evidence does not appear to establish how frequently fuel trucks use the wharf; where that use occurs relative to any risk associated with the damage to the rock wall; or how this compares to the use of the wharf proposed by the plaintiffs.
The process of assessment of environmental risks associated with the plaintiffs’ proposal is ongoing. To date the plaintiffs have provided at least two versions of a draft EMP, most recently on 30 January 2024. Waddington has had very little opportunity to fully respond to the environmental issues that may arise from the plaintiffs’ proposal or to conclude that the most recent version of the EMP is a satisfactory response to those risks. It is difficult for me to conclude, in the absence of a fully articulated response from the person responsible for safety at the Port, that environmental risks are sufficiently resolved by the most recent EMP.
I reject the plaintiffs’ submission that the Council’s SEMP supports the conclusion that there is no significant environmental risk associated with their proposal. There is nothing in the SEMP that appears to directly respond to the plaintiffs’ proposed use of the Port. This is hardly surprising given the history of use of the Port to which I have referred.
The plaintiffs are not the only source of information about risks to port infrastructure, the environment and other port users associated with their proposed use of the Port. While it would seem appropriate for Waddington to have required that the plaintiffs produce an EMP and TMP, the provision of those documents does not necessarily lead to the conclusion that the issues and risks identified by Waddington have been addressed and resolved. Each other body or person approached by Waddington since mid-January in relation to the proposed use of the Port by the plaintiffs has raised significant safety concerns. Waddington’s investigation of those concerns is ongoing.
As recently as 30 January 2024, Castles, acting as the plaintiffs’ consultant in relation to this matter, proposed a meeting with the Council to discuss important topics relevant to the plaintiffs’ application that remain to be resolved. I accept Waddington’s evidence, set out in paragraph [51] above, to the effect that those issues must be addressed for her to give final consideration to the plaintiffs’ proposal. Further, I accept that important issues identified by Waddington when she gave the direction, set out in paragraph [55] above, have not been finally resolved. Until that has occurred there will be risks to port infrastructure, other port users and the environment if the plaintiffs are allowed to proceed to use the Port as they propose.
I conclude, on the evidence before me, that the risks to port infrastructure, other port users and the environment if the injunction is granted significantly outweigh the risks to the plaintiffs if relief is refused. I add that my conclusion does not depend on the adverse inference referred to in paragraph [78] above.
Conclusion
The plaintiffs’ application for an interim injunction is dismissed.
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