Braverus Maritime Inc v Port Kembla Coal Terminal Ltd - [2005] FCAFC 256

FEDERAL COURT OF AUSTRALIA
Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256
ADMIRALTY AND MARITIME – SHIPPING AND NAVIGATION – compulsory pilotage – construction and interpretation of s 410B of Navigation Act 1912 (Cth) and ss 85 and 86 of the Ports Corporatisation and Waterways management Act 1995 (NSW) – shipowner liable for fault of pilot, though pilot not properly licensed.
TRADE PRACTICES ACT – no reliance by master of ship on conduct of the pilot
CONTRACT – formation – no contract between shipowner and pilotage service provider
TORT – contributory negligence – no relevant causal link between conduct of the plaintiff and the damage
Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 9
Law Reform (Vicarious Liability) Act 1983 (NSW)
Marine Pilotage Licensing Act1971 (NSW)
Navigation Act 1912 (Cth) s 410B
Pilotage Act 1913 (Imp) s 15(1)
Ports Corporatisation and Waterways Management Act 1995 (NSW) ss 85 and 86
State Owned Corporations Act1989 (NSW) s 20E
Airways Corporation of New Zealand Ltd v Geyserland Airways Ltd [1996] 1 NZLR 116 discussed
Amarantos Shipping Co Ltd v South Australia (2004) 89 SASR 438 referred to
Astley v Austrust Limited (1999) 197 CLR 1 discussed
Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424 applied
Bropho v Western Australia (1990) 171 CLR 1 applied
Bunbury-Harvey Regional Council v Giacci Bross Pty Ltd (2000) 117 LGERA 1 discussed
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 referred to
Chappel v Hart (1998) 195 CLR 232 referred to
Chester v Afshar [2005] 1 AC 134 referred to
CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 187 CLR 384 applied
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 referred to
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 referred to
Director of Posts & Telegraphs v Abbott (1974) 7 SASR 540 referred to
Dudman v Brown and Dublin Port and Docks Board (1873) IR Rep 7 CL 518   referred to
Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318 applied
Fowles v The Eastern and Australian Steamship Company Ltd (1913) 17 CLR 149 discussed
General Steam Navigation Company v British Colonial Steam Navigation Company (1869) LR 4 Ex 238 referred to
Holman v Irvine Harbour Trustees (1877) 4 Sess Cas (4^th Ser) 406   discussed and distinguished
Jones v Livox Quarries [1952] 2 QB 608 referred to
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR   applied
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 applied
Laugher v Pointer (1826) 5 B & C 547; 108 ER 204 referred to
Lismore City Council v Stewart (1989) 18 NSWLR 718 referred to
Lucey v Ingram (1840) 6 M & W 302; 151 ER 424 referred to
March v E & MH Stramare Pty Limited (1991) 171 CLR 506 referred to
Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd [1947] AC 1 referred to
Milligan v Wedge (1840) 12 Ad & E 737; 113 ER 993 referred to
Milliman v Rochester Railway Co 39 NYS 274 (1896)    referred to
Naxakis v West General Hospital (1999) 197 CLR 269 referred to
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 217 CLR 273 applied
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 applied
Norweb Plc v Dixon [1995] 1 WLR 636 referred to
NT Power Generation Pty Ltd v Power and Water Authority (2004) 210 ALR 312 applied
Oceanic Crest Shipping Co v Pilbara Harbour Services Proprietary Limited (1986) 160 CLR 626 discussed and applied
Parker v North British Rail Co (1898) 25 Ct of Sess Cas, 4^th Ser 1059   referred to
Pfizer Corporation v Ministry of Health [1965] AC 512 referred to
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 applied
Prowse v European and American Steam Shipping Co (1860) 13 Moore 484; 15 ER 182
Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575 referred to
RW Miller & Co v Shortland CC (1988) 83 ALR 225 referred to
Shaw, Savill & Albion Co v Timaru Harbour Board (1890) 15 App Cas 429 referred to
Smithwick v Hall & Upson Co 59 Conn 261, 21 Atl Rep 924 (1890)   referred to
Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) ALR   applied
Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532 referred to
The ‘Adam W Spies’ (1901) 70 LJ (P) 25   discussed
The ‘Annapolis’ (1861) Lush 295 at 312; 167 ER 128 referred to
The ‘Beechgrove’ [1916] 1 AC 364 discussed
The ‘Cavendish’ [1993] 2 Lloyd’s Rep 292 discussed
The ‘Eden’ (1846) 2 W.Rob 442; 166 ER 822 discussed
The ‘Guy Mannering’ (1882) 7 PD 132 discussed
The ‘Halley’ (1868) LR 2 PC 193; 5 Moore NS; 16 ER 514 discussed
The ‘Hector’ (1883) 8 PD 218 referred to
The ‘Lion’ (1869) LR 2 PC 525 referred to
The ‘Maria’ (1839) 1 W. Rob 96; 166 ER 508 discussed
The ‘Neptune the Second’ (1814) 1 Dods 437; 165 ER 1380 referred to
Thom v J & P Hutchison Ltd 1925 SC 386 discussed
Townsville Harbour Board v Scottish Shire Line Ltd (1914) 18 CLR 306 discussed
Workington Harbour and Dock Board v Owners of ‘Towerfield’ [1949] P 10 (Court of Appeal); and [1951] AC 112 (House of Lords). discussed
Douglas & Geen on the Law of Harbours, Coasts and Pilotage (5^th Ed 1997)
Glanville Williams Joint Torts and Contributory Negligence (1951)
Glass H, McHugh M and Douglas F The Liability of Employers (Law Book Co 2^nd Ed)
BRAVERUS MARITIME INC v PORT KEMBLA COAL TERMINAL LTD AND ANOR
NSD 1755 of 2004
TAMBERLIN, MANSFIELD & ALLSOP JJ
SYDNEY
12 DECEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1755 of 2004

ON APPEAL FROM A DECISION OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

BRAVERUS MARITIME INC
APPELLANT

AND:

PORT KEMBLA COAL TERMINAL LTD
FIRST RESPONDENT

PORT KEMBLA PORT CORPORATION
SECOND RESPONDENT

JUDGES:

TAMBERLIN, MANSFIELD & ALLSOP JJ

DATE OF ORDER:

12 DECEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The appeals be dismissed.
2.The appellant pay the respondents’ costs of the appeals.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1755 of 2004

ON APPEAL FROM A DECISION OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

BRAVERUS MARITIME INC
APPELLANT

AND:

PORT KEMBLA COAL TERMINAL LTD
FIRST RESPONDENT

PORT KEMBLA PORT CORPORATION
SECOND RESPONDENT

JUDGES:

TAMBERLIN, MANSFIELD & ALLSOP JJ

DATE:

12 DECEMBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT
the court
Index
Introduction
The issues between the plaintiff (Port Kembla Coal Terminal)
and defendant (Braverus)
The issues between the defendant (Braverus) and the cross-defendant
(the Corporation)
The proper construction and operation in the circumstances of this
case of s 410B of the Navigation Act and s 85 of the PCWM Act
The asserted liability of the Corporation under the TP Act
The claim based in contract
The ambit and construction of s 86 of the PCWM Act
The appeal concerning Port Kembla Coal Terminal
Conclusion [233]
Introduction

On 15 April 2002, on a fine sunny day, with hardly any wind, clear visibility and calm flat water the bow of the Capesize bulk carrier “SA Fortius” (Fortius) struck at almost a right angle the bulk coal berth in Port Kembla inner harbour and one of the rail-mounted ship loaders that happened to be parked at the point of contact.
The plaintiff, Port Kembla Coal Terminal Limited, was the lessee and occupier of the bulk coal berth, including the various pieces of machinery situated there. The plaintiff sued the owner of Fortius, Braverus Maritime Inc (Braverus), for damages under a general maritime claim pursuant to s 4(3)(a) and (d) of the Admiralty Act 1988 (Cth).
The defendant, Braverus, denied liability and cross-claimed against the Port Kembla Port Corporation (the Corporation) on a number of grounds. Central to understanding how Braverus could claim that it was not at fault and to understanding the bases for the cross-claim is the fact that on the bridge of Fortius at all relevant times, in company with the master, was Capt James who acted as the pilot and who had been provided to Braverus by the Corporation. We say “acted as the pilot” because Capt James was, in fact, not relevantly licensed. This lack of a licence had been brought about (to use the words of the primary judge) by “bureaucratic ineptitude” in connection with the taking of the prescribed steps in effecting his appointment. There was no issue litigated that Capt James was not qualified by training and experience to act as a pilot on a ship such as Fortius and to hold the relevant licence. Port Kembla was a compulsory pilotage port under relevant New South Wales legislation.
The proceedings were called on for hearing on 5 April 2004. They lasted 31 days, including over a week of oral addresses. Voluminous written submissions were filed. On 17 September 2004, the primary judge (Hely J) published reasons of 181 pages dealing with all issues other than costs. (See (2004) 140 FCR 445.) We wish to pay tribute to the careful and thorough reasons of the primary judge. Although the appellant, Braverus, takes issue in important respects with some aspects of the approach of the primary judge to the facts, it is fair to say that his Honour’s careful attention to the detail of the case and his pellucid exposition of issues of law and fact have made the task of the parties and the Court immeasurably easier.
By way of introduction, it is appropriate to set out the essential factual background, which is largely taken from the reasons of the primary judge.
Fortius is a gearless Capesize bulk carrier. She was 87,542 tonnes gross tonnage, 171,509 deadweight tonnes at summer load line, her length over all was 289.08 metres, with a beam of 45 metres. She was built in 2001. Engine room, accommodation and bridge were aft, with the bridge being 246.3 metres from the bow. There was direct bridge control of the engine.
Fortius had been chartered to lift a cargo of 130,000 tonnes of coal from Newcastle and Port Kembla for discharge at Rotterdam. On 14 April 2002, she loaded 55,410 tonnes of coal in Newcastle. She sailed to Port Kembla on the morning of 15 April 2002 thus loaded and with ballast, giving her a displacement of approximately 110,0000 tonnes. She arrived off Port Kembla at about 1300 hours on 15 April 2002, at which time Capt James boarded.
The master was Capt Ryszard Krol, a Pole by nationality, who had gone to sea in 1971, had achieved the rank of master in 1987, had first acted as a chief officer on a Capesize vessel in 1991 and had been in command of Capesize vessels since 1997. Capt Krol had visited Port Kembla once before, in May 1997, as master of a Capesize bulk carrier which discharged iron ore at a discharge berth on the southern side of the inner harbour.
An understanding of what occurred is assisted by reference to a chart of the harbour reproduced by the primary judge on page 7 of his reasons and to two versions of the same chart with the position of Fortius at different times marked thereon which were (with some additions) pp 32A and 33 of annexure BMI1 to the statement of Capt Krol. These three copies of the chart are as follows.
The additions placed on p 33 are the names of the tugs (the shapes representing the tugs were part of the evidence) and the identification of the dolphins (piled moorings). The numbers in circles with the suffix “LT” represent the time, “local time”. For findings as to time, however, the careful and precise findings of the primary judge should be consulted. The bulk coal berth can be seen on the north-eastern side of the inner harbour and is marked, “Bulk Coal Berth No 2” to the north of the “Old Coal Loader”. The discharge berths on the south side of the inner harbour are marked adjacent to the “No 1 Products Wharf” and north-west of the “BHP Shipping Office”.
The smaller scale chart in the bottom left corner shows the north facing entrance to the outer harbour at the breakwater, through which Fortius proceeded before turning to starboard in the outer harbour and proceeding through ‘the cut’, being the narrow channel connecting the inner and outer harbours. Once inside the inner harbour, it was necessary to turn Fortius so that her bow headed south in order that she could be pushed in northerly and easterly directions for berthing at “Bulk Coal Berth No 2” as marked on the chart. (We will hereafter refer to the relevant berth either as CB2 or the no. 2 berth.) This manoeuvre involved a swing to starboard through approximately 240 degrees from entry into the inner harbour to the position at which the tugs would push her towards the berth. The tugs that accompanied Fortius into the inner harbour were to assist in the swinging manoeuvre and were then to push her astern and then sideways towards CB2 in a broadly northerly then easterly direction, with Fortius berthing port side to.
The primary judge succinctly and clearly summarised the accident at [15] of his reasons:
In carrying out the swinging manoeuvre, the Fortius moved too far north and too close to CB2. As the Fortius was being swung, her bow collided with CB2 towards the southern end of that berth at an angle of about 80 to 90 degrees to the berth (which lies at an angle of about 5 or 10 degrees off due north/south), causing damage to the berth structure and to the No 1 ship loader. It was generally accepted that the collision occurred at about 13:59 hours on 15 April 2002. There was a ‘v’ shaped indentation of approximately 2 metres in the concrete structure of the berth where the starboard bow of the Fortius collided with it on a heading of about 78 degrees. The bulwark came into contact with the No 1 ship loader, causing it to be derailed and rendered unstable. The cost of repairing the No 1 ship loader alone is claimed to be $5,889,090.20. The cost of rectifying the damage to the berth and the ship loader, and some incidental expenses, are claimed by the plaintiff to be $16,110,548.47.
Two dramatically different versions of relevant events were given by Capt James, on the one hand, and Capt Krol and members of the ship’s crew, on the other. Capt James attributed the accident to a failure by Capt Krol, the chief officer and the helmsman to execute his helm and engine orders, which, Capt James said, were ignored and countermanded. Capt Krol (supported in evidence by the chief officer and helmsman) denied this. He attributed the accident to the faulty navigation and ship handling of Capt James. The primary judge rejected Capt James’ evidence. He found, however, both Capt James and Capt Krol to have been negligent, in what they, respectively, did and did not do, apportioning responsibility between Braverus and the Corporation (if that became relevant) as 60% to the Corporation for Capt James’ role and fault and 40% to Braverus for that of Capt Krol. There was no issue but that human error caused the accident.
It is unnecessary for the resolution of the appeal to deal with much of that conflict of evidence. However, in due course, it will be necessary to say something of what happened in the minutes before impact. Paragraphs [18] to [20] of the primary judge’s reasons, which should be read with the copy of the chart above marked 32A (showing Fortius in a position where her bow was approximately 150 m west of CB2), reveal how his Honour approached the exposition of what happened:
Whatever the cause of the Fortius’ movement to the north, a point arose when both Pilot and Master recognised that there was a risk of collision between the vessel and CB2, but that if appropriate action had then been taken, the collision would have been averted. That point was when the Fortius was approximately 150 m west of CB2, on a heading of approximately 35 degrees, and travelling at about 1 knot. At that point (which I shall refer to as ‘the 150 m point’), both the Pilot and the Master were of the view that the Fortius’ engines should have been stopped and then put to full astern. If necessary the tugs could have been deployed to further arrest the movement of the vessel towards CB2.
There are conflicts in the evidence as to what orders the Pilot gave both before and after this point, and as to whose fault it was that a full astern order was not implemented in time to prevent a collision from occurring. The 150 m point is therefore a useful reference point, as the failure to take appropriate action at the 150 m point was directly causative of the collision. The evidentiary conflicts are also more generally relevant, since should the issue of allocation of responsibility fall for decision, contrary to the Corporation’s submissions, the conflicts between the accounts of the Master and the Pilot become relevant to that question.
Although the damage sustained by the berth and ship loader was extensive, the collision was a very near thing. Had the Fortius’ position and/or heading immediately prior to the impact been slightly different, then the collision would probably not have occurred. Captain Kirkland, an expert witness called by the plaintiff and who had inspected the impact, gave it as his opinion that if the Fortius had been put astern 10 or 12 feet earlier, then she probably would not have touched the berth.
The issues between the plaintiff (Port Kembla Coal Terminal) and defendant (Braverus)
The plaintiff’s case was that the master and crew were negligent in the navigation of Fortius in the inner harbour for which negligence Braverus was vicariously liable. Its alternative case was that Capt James was negligent in the conduct of the pilotage for which Braverus was said to be liable, in particular by reason of s 410B(2) of the Navigation Act 1912 (Cth) and s 85(2) of the Ports Corporatisation and Waterways Management Act 1995 (NSW) (the PWCM Act).
Braverus denied any negligence on the part of Capt Krol and the crew and said that Capt James was solely to blame. It said that ss 410B(2) and 85(2) did not operate to make Braverus liable because Capt James was not licensed. Section 410B(2) was said not to apply for two further reasons: Fortius was said to be on an intra-state voyage (from Newcastle to Port Kembla), and if it purported to apply it was constitutionally invalid as effecting an acquisition of property without the provision of just terms as required by s 51(xxxi) of the Constitution.
The defendant also said that the plaintiff contributed to the loss by its own negligence in failing to comply with its own procedures in the placement of the no 1 ship loader during the berthing operation. Issues of damages, betterment and unreasonableness arose in respect of quantum.
On the appeal, there was no issue taken with the primary judge’s conclusion that Capt Krol was negligent and that his negligence was a cause of the accident. Thus, as between the plaintiff and the defendant, the issues as to the operation of s 410B of the Navigation Act and s 85 of the PCWM Act fell away. Braverus was vicariously liable for the neglect of its employee, the master, Capt Krol.
No quantum issue arose.
Two issues were live on the appeal between these parties:
(a)whether the primary judge was correct in refusing to effect a reduction of the damages to which the plaintiff was otherwise entitled by applying s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) for its asserted contributory negligence; and
(b)whether the exercise by the primary judge of the discretion to award the plaintiff indemnity costs miscarried.
Issue (b) above depended in large part upon issue (a), in that the basis of the award was the fact that the plaintiff recovered a sum greater than that which it offered to accept in an offer of compromise made before the hearing. That offer would not have been beaten, if we may use that expression, by the plaintiff if a significant reduction in the damages had been made by the primary judge for contributory negligence.
The issues between the defendant (Braverus) and the cross-defendant (the Corporation)

The primary judge succinctly summarised the issues at the trial between Braverus and the Corporation at the hearing at [28] to [31] of his reasons:
If the Master and the Pilot are both found to be liable in negligence, an issue for determination on the Second Further Amended Cross Claim filed for the defendant (‘the cross claim’) is the relative responsibility as between the Master and the Pilot for any damage sustained by the plaintiff. Irrespective of whether such a finding is made, the Corporation’s liability to the defendant under the cross claim falls for determination.
The defendant contends that the Corporation is liable to it in contract, under s 82 of the Trade Practices Act 1974 (Cth) (‘the Trade Practices Act’) and in tort. The Corporation puts these claims in issue and contends that, in any event, it has the benefit of the statutory immunities created by s 410B of the Navigation Act and s 85 and s 86 of the PCWM Act. The defendant denies that these sections have any relevant application.
If any statutory defence is prima facie available to the Corporation under s 85 and s 86 of the PCWM Act, then the defendant contends that those sections are invalidated by Part IV of the TPA. They are also inconsistent with s 52, 82 and 87 of the TPA and, pro tanto invalid by reason of s 109 of the Constitution.
To the extent that any defence or immunity is prima facie available to the Corporation under s 410B of the Navigation Act, the defendant asserts that the section is constitutionally invalid as it effects an acquisition of property, viz the defendant’s common law causes of action against the Corporation, without the provision of just terms.
In the appeal there was no argument put that ss 85 and 86 of the PCWM Act were invalid by reason of inconsistency with Part IV of the Trade Practices Act (1974) (“TP Act”). There was no issue on appeal as to the invalidity of s 410B of the Navigation Act or as to the application of s 410B to the voyage in question. There was also no issue on appeal as to the respective proportions of Braverus and the Corporation for the responsibility for the damage if division of responsibility, through apportionment, became relevant. The parties agreed to vary the primary judge’s division of 60:40 (pilot:master) to 60.5:39.5 (pilot:master). Other issues fought and decided below were the subject of the appeal. Those issues concerned:
(a)the proper construction and operation in the circumstances of this case of s 410B of the Navigation Act and s 85 of the PCWM Act;
(b)the asserted liability of the Corporation under the TP Act by reason of its misleading or deceptive conduct through Capt James;
(c)the ambit and construction of s 86 of the PCWM Act; and
(d)the claim based on breach of contract.
We propose to deal firstly with the appeal concerning the Corporation.
The proper construction and operation in the circumstances of this case of s 410B of the Navigation Act and s 85 of the PCWM Act
Section 410B of the Navigation Act and its State analogue, s 85 of the PCWM Act, are central to the disposition of the issues in the appeal – in both the notice of appeal and the notice of contention.
Section 410B of the Navigation Act is in the following terms:
(1)A pilot who has the conduct of a ship is subject to the authority of the master of the ship and the master is not relieved from responsibility for the conduct and navigation of the ship by reason only of the ship being under pilotage.
(2) Notwithstanding anything contained in a law of the Commonwealth or of a State or Territory, the owner or master of a ship navigating under circumstances in which pilotage is compulsory under a law of a State or Territory is answerable for any loss or damage caused by the ship, or by a fault of the navigation of the ship, in the same manner as the master or owner would if pilotage were not compulsory.
Section 85 of the PCWM Act is in similar terms:
(1)A person who is employed as a pilot by the pilotage service provider and who has the conduct of a vessel is subject to the authority of the master of the vessel. The master is not relieved from responsibility for the conduct and navigation of the vessel merely because the vessel is under pilotage.
(2)The master and the owner of a vessel being navigated under circumstances in which pilotage is compulsory are jointly and severally liable for any loss or damage caused by the vessel or by any fault of navigation of the vessel in the same manner as if pilotage were not compulsory.
The word “pilot” is defined in s 6 of the Navigation Act as meaning:
a person who does not belong to, but has the conduct of, a ship
The “pilot” of a vessel is similarly defined in s 3(1) of the PCWM Act as meaning:
the person who has the conduct of the vessel but who does not belong to the vessel
The primary judge found that s 410B(2) operated to deny Braverus the ability to sue the Corporation in tort or for contribution. It was not necessary for the primary judge to consider the operation of s 410B(2) on the claims in contract and based on contravention of s 52 of the TP Act, because his Honour otherwise dismissed those claims on their merits. The notice of contention of the Corporation asserts that even if the primary judge were wrong in thus dismissing the contract and TP Act claims, the effect of s 410B(2) was to deny Braverus those claims.
On appeal, Braverus submitted that the primary judge had erred in his understanding and application of s 410B(2) of the Navigation Act (and its State analogue, s 85(2) of the PCWM Act). First, it was said that the unlicensed status of the pilot and the consequences thereof, particularly those based on an application of the Scottish case of Holman v Irvine Harbour Trustees (1877) 4 Sess Cas (4^th Ser) 406, were not given determinative effect by the primary judge as they should have been.
Secondly, it was said that the primary judge wrongly concluded that the decision of the majority of the High Court in Oceanic Crest Shipping v Pilbara Harbour Services Pty Limited (1986) 160 CLR 626 required him to conclude as he did, when there were at least three grounds for distinguishing that case.
Thirdly (and related to the second asserted error), it was said that the primary judge failed to apply the Law Reform (Vicarious Liability) Act 1983 (NSW) (LR(VL) Act), notwithstanding not having been referred to it.
Fourthly (and related to the first asserted error), it was said that s 410B(2) did not apply because Fortius was not “navigating under circumstances in which pilotage was compulsory”, because Capt James was unlicensed.
The underlying theme to all these submissions was that the primary judge had misunderstood, in a fundamental way, the meaning of s 410B, which misunderstanding arose from a failure to appreciate the true purpose of s 410B(2) in its historical context. The fundamental error was the failure to recognise that s 410B(2) was directed to circumstance in which the pilot was duly licensed. If the pilot was not licensed he or she could not be a public officer exercising independent duties, thereby making the defence of compulsory pilotage unavailable. Thus, it was said, in these circumstances, s 410B did not apply to make the shipowner responsible. This approach was said to be mandated by 130 years of binding case law that had been accepted by the High Court.
The approach to the construction and interpretation of s 410B and s 85
The ordinary rules of the Australian common law of statutory interpretation can be seen expressed in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 especially at 315; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421-424 specifically approved by the Full Court of the High Court in Bropho v State of Western Australia (1990) 171 CLR 1 at 20; CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 187 CLR 384 at 408; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 112; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-82 [69]-[70] and 384 [78]; Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318 at [1], [32], [34], [35], [36] and [140] footnote 99; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 217 CLR 273 at [10]-[11]; and Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 79 ALJR 1850. These cases can be seen as providing for a common law approach by which the relevant words of a statute, by reference to the language of the statute viewed as a whole, are considered in their legal and historical context, having regard to the evident aim and purpose of the legislation, to any established canons of legal construction and to any inconvenience or improbability of result of any given construction. Inconvenience or improbability of result may assist the court to reach an available alternative construction reasonably open and more clearly conforming with the legislative intent otherwise discerned. Fundamental to the task, however, is the giving of close attention to the text and structure of the relevant provisions as the words used by Parliament.
In this case, the need for an understanding of historical context is made evident by the terms of s 410B(2). The provision directs an inquiry as to the “manner” in which the master or owner would be “answerable” for loss or damage “if pilotage were not compulsory.” It is necessary to understand the consequences of the relationship of non-compulsory pilotage thus posited. Indeed, Braverus relies upon this historical context because the words of s 410B(2) do not, of themselves, indicate that the operation of the provision is contingent upon the pilot being licensed. Nor, as appears from the definition of “pilot” in the Navigation Act, is there any apparent textual basis to import the qualification that s 410B(2) applies only if the relevant pilot is licensed or that it applies only in a restricted manner if the relevant pilot is unlicensed.
It is convenient to approach the analysis by dealing with two separate, but related, questions concerning the meaning and operation of s 410B: first, whether or not it applies, in particular in the circumstance of the pilot not being licensed, and, secondly, if it does apply, the extent of its operation.
Our view as to s 410B
For the reasons that follow, we are of the view that s 410B(2) applies if a pilot (that is, someone who has the conduct of, but does not belong to, the ship) is unlicensed and all other criteria for its operation have been met, and that the consequence of that application is that Braverus, as shipowner, is answerable for any fault of the pilot on the hypothesis that the pilot was the servant of Braverus.
The background to the provisions antecedent and analogous to s 410B
In the United Kingdom in the 19^th century, the question of responsibility of a shipowner for the fault of a pilot was governed both by the general law and statute. The general law position, subject to general law or statutory exceptions, was that the pilot was the servant of the owner and that the owner was answerable for the pilot’s negligence: The ‘Neptune the Second’ (1814) 1 Dods 437; 165 ER 1380 at 1380-81; The ‘Maria’ (1839) 1 W. Rob 96; 166 ER 508; The ‘Eden’ (1846) 2 W.Rob 442; 166 ER 822; The ‘Halley’ (1868) LR 2 PC 193 at 202; 5 Moore NS 262 at 273 and 274-75; 16 ER 514 at 518; The ‘Hector’ (1883) 8 PD 218 at 224; and see Townsville Harbour Board v Scottish Shire Line Ltd (1914) 18 CLR 306 at 326-27. This position was so, notwithstanding the law in other areas that the employment of someone exercising a distinct calling did not make the “employer” of that person liable for his fault: Milligan v Wedge (1840) 12 Ad & E 737 at 740-42; 113 ER 993 at 994-95; and Laugher v Pointer (1826) 5 B & C 547; 108 ER 204: see The ‘Eden’. The exception at general law to this responsibility of the shipowner for the fault of the pilot, as master responsible for the fault of his servant, was the circumstance where the owner was compelled to take the pilot. This element of compulsion was said to prevent the relationship of master and servant arising because it denied free choice: The ‘Maria’ at 106-108 (513) and The ‘Annapolis’ (1861) Lush 295 at 312; 167 ER 128 and 137.
Exception was also made under statute. The development of the relevant statutory provisions is helpfully set out by Douglas & Geen on the Law of Harbours, Coasts and Pilotage (5^th Ed 1997) (“Douglas & Geen”) Ch 19. The “General Act”, 6 Geo IV, c 125, s 55 (1820), provided that the owner or master was not answerable for any default of any licensed pilot acting in charge of the ship under or in pursuance of any of the provisions of the Act. The exemption was based on the pilot being licensed, not on his being taken under compulsion: see Lucey v Ingram (1840) 6 M & W 302; 151 ER 424. (See also for the preceding statute, the General Pilotage Act (1812) 52 Geo III c 39, s 30.)
Subsequently, the Merchant Shipping Act 1854 (17 & 18 Vict c 104) (the “MSA 1854”) provided in Part V for pilotage. It recognised local Acts and pilotage authorities created thereunder. It dealt with powers of pilotage authorities, including the setting of qualifications for and licensing of pilots and the fixing of pilotage rates (ss 331-336), returns by pilotage authorities (ss 337-339), the licensing of masters and mates as pilots (ss 340-344), pilot licences (ss 349-352), compulsory pilotage (ss 353-355), rights, privileges and remuneration of pilots (ss 356-364), offences of pilots (ss 365-367) and the saving of owners’ and masters’ rights (s 388). Section 388 of the MSA 1854 set out the defence of compulsory pilotage by requiring both compulsion and the relevant qualification of the pilot, as follows:
An owner of or master of a ship shall not be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of that ship within any district where the employment of such pilot is compulsory by law.
The MSA 1854 defined “pilot” and “qualified pilot” as follows:
“Pilot” shall mean any person not belonging to a ship who has the conduct thereof
“Qualified pilot” shall mean any person duly licensed by any pilotage authority to conduct ships to which he does not belong
Section 633 of the Merchant Shipping Act 1894 (57 & 58 Vict, c 60) (the “MSA 1894”) was in identical terms to s 388 of the MSA 1854.
The various British statutes of the 19^th century were discussed by Lord Romilly MR in The ‘Lion’ (1869) LR 2 PC 525. In doing so, he pointed out the narrowing of the owner’s compulsory pilotage defence under s 388 of the MSA 1854 to circumstances where a licensed pilot was compulsorily engaged, in contrast to s 55 of the General Act which had required only that the pilot be licensed for the defence of pilotage to be made good.
Thus, central to the approach of the general law, both to the responsibility of the shipowner, and his relationship with the pilot, were the notions of voluntariness and compulsion. If the pilot was voluntarily engaged, he was to be regarded as taken on as a servant of the owners. If compulsorily engaged, he was not. The relevant statutes (such as s 55 of the General Act, s 388 of the MSA 1854 and s 633 of the MSA 1894) provided for an additional requirement – due licensing for the defence to be available. That, however, did not affect the underlying importance at general law of voluntariness and its consequence upon how the pilot was treated as incorporated in the crew, as a servant of the owner. The element of compulsion (alone at general law) and in addition the requirement of due licensing (under statute) provided circumstances for protection of the owner from what would otherwise be his legal responsibility for the fault of the pilot based on the relationship of master and servant. The satisfaction of any exception did not otherwise affect the position should the exception not apply – that is voluntary pilotage, and the relationship of master and servant arising thereupon. The central element of compulsion and, in its absence, the relationship of master and servant (irrespective of any issue of licensing or qualification) can be seen from what Dr Lushington said in The ‘Maria’ at 107-108 (513):
If the taking a pilot on board was compulsory, and the collision was occasioned by the fault of that pilot, I shall hold the owners of the “Maria” exempt from responsibility, upon general principle without reference to Acts of Parliament, for in that case the … pilot was not their servant, and the maxim qui facit per alium facit per se, does not apply. If, on the contrary, the taking a pilot was voluntary, then he was the servant of the owners, and the owners are responsible, unless the General Pilot Act, which takes away responsibility, applies to a foreign vessel so circumstances, and to cases where it is optional to take a pilot or not.
It was repeated by Dr Lushington in The ‘Annapolis’ at 312 (137):
…But whether the Merchant Shipping Act applies to this case or not, I am of opinion that the owners of the “Annapolis” are exempt from responsibility by reason that the employment of the pilot was compulsory: the pilot was not their servant or agent; they could not avoid entrusting him with the management of the vessel. In the case of The “Maria”…, I have stated at some length my reasons for coming to this conclusion. I believe that the doctrine I then maintained, and now adhere to, is consonant with justice, supported by authority, and is in strict accordance with the principle adopted by the Legislature in the Merchant Shipping Act. I therefore pronounce against the claim brought by the owners of the “Johanna Stoll.”
That the relationship of owner to pilot was that of master and servant was made clear in The ‘Beechgrove’ [1916] 1 AC 364. There, a pilot was taken on board one ship off the mouth of the River Clyde outside the compulsory pilotage area, for the inward voyage. The other ship had taken on board a pilot within the River Clyde for the outward voyage. The collision occurred outside the geographical bounds of the compulsory pilotage area while the pilots were in charge of the ships. The House of Lords was clear that the compulsory pilotage defence was unavailable. Lord Atkinson said at 382-83 and 390:
It was held in The Maria that s 55 of the 6 Geo. 4, c 125 which is somewhat similar to s 633 of the Act of 1894, embodied this principle of the common law, that the doctrine of “respondeat superior” cannot apply when the law compels an owner to put and keep in charge of his ship for the purpose of navigating her a person he cannot himself select, and of whose skill and competence he may know nothing. As long as the statutory compulsion operates the person in charge of the ship is not the owner’s servant, and the owner is therefore not responsible for his acts. Thus at common law the basis of the owner’s immunity is the legal compulsion upon him. These two must synchronize in their operation, and are coterminous in their reach. When and where compulsion ceases, immunity ceases, and no agreement, express or implied which the owner or his agent, the master, may make with the pilot can, I think, at common law prolong or renew, as regards third parties, the one or the other. If the owner or his agent, the master, should request or permit the pilot to continue in command of the ship beyond the time he is bound by law to permit him so to do, then the relation between the owner and pilot becomes at common law a contractual relation of service, to which the maxim of “respondeat superior” directly applies.
…
Nor do I find anything inconsistent with the conclusion that in such a case, from the time the ship passed out of the compulsory area, the pilot was no longer a compulsory pilot, but stood to the master and the owners of the ship merely in the relation in which a pilot hired in a non-compulsory area stands to them.
[emphasis added]

In The ‘Eden’ Dr Lushington made clear that the central consideration concerning the liability of owners for damage caused by the ship through faulty navigation of a pilot on board was whether the pilot was there by compulsion or by voluntary engagement. It was insufficient that the pilot was licensed. He must be compulsorily engaged. In The ‘Eden’ the pilot was licensed, but was not on board by compulsion.
All the above cases dealt with the liability of the shipowner for the fault of the pilot. Section 388 of the MSA 1854 and s 633 of the MSA 1894 used the word “answerable”. That word was construed more widely than operating by way of mere defence: The ‘Adam W Spies’ (1901) 70 LJ (P) 25. There, Jeune P said, at 26, that s 633 operated not only as a defence to a claim against the owners, but permitted the owners to sue for the damage to their ship unhindered by any assertion of contributory negligence on their part through the default of the pilot. Comments made by Brett MR in The ‘Hector’ (1883) 8 PD 218 at 225 were to the same effect.
Claims by shipowners against harbour authorities appear to have been rare. Sir William Scott in The ‘Neptune the Second’ at 437 (1380-81), in a passage relied upon by Dr Lushington in The ‘Maria’, said the following about the possible liability of the pilot to the shipowner:
The parties who suffer are entitled to have their remedy against the vessel that occasioned the damage, and are not under the necessity of looking to the pilot, from whom redress is not always to be had, for compensation. The owners are responsible to the injured party for the acts of the pilot, and they must be left to recover the amount as well as they can against him. It cannot be maintained that the circumstances of having a pilot on board, and acting in conformity to his direction, can operate as a discharge of responsibility of the owners.
[emphasis added]
Marsden Collisions at Sea (6^th Ed 1910) noted that attempts had been made to make pilotage authorities liable for the default of pilots: at pp 93-4 and 215, where reference was made to Dudman v Brown and Dublin Port and Docks Board (1873) IR Rep 7 CL 518; Shaw, Savill & Albion Co v Timaru Harbour Board (1890) 15 App Cas 429; Holman v Irvine Harbour Trustees (1877) 4 Ct of Sess Cas 4^th Ser 406; and Parker v North British Rail Co (1898) 25 Ct of Sess Cas, 4^th Ser 1059.
In Dudman, the owners of a ship sued the defendant port and docks board for the negligence of the licensed pilot whom owners had taken on board under compulsory pilotage. The pilot, being compulsory, was found not to be the servant of the plaintiff shipowner, thus the owner was not disentitled to sue by contributory negligence (that is by the negligence of the pilot). The assertion that the licensed pilot was the servant of the defendant was simply described as “untenable”.
In Shaw, Savill & Albion the shipowner sued the harbour authority for the negligence and default of their servant who was the deputy harbour master and pilot and who was in charge of the ship when she and her cargo were lost. The loss was caused by his negligence. The authority’s only duty was held to be to licence the pilot. Upon a reading of the relevant statute the harbour board was not authorised to enter into a pilotage contract or to employ someone as a pilot for a vessel. Thus, it was not liable.
Holman v Irvine Harbour Trustees is a case at the centre of Braverus’ arguments. It was said by Braverus to demonstrate that a harbour authority is responsible as employer for an unlicensed pilot in circumstances where pilotage is not compulsory and that whenever the pilot was unlicensed the usual consequence of voluntary pilotage that the pilot was the servant of the shipowner did not obtain. The primary judge is said to have failed to appreciate the case’s central importance. It is therefore necessary to examine it with some care. The pursuers sought to recover for damage to their ship which, while in the charge of one M’Gill who had been sent out by the harbour trustees to bring the vessel into harbour, struck a perch marking the entrance to the harbour. M’Gill was not a “qualified pilot” within the meaning of that phrase in the MSA 1854. He was called a “hobbler”, who was paid weekly wages by the trustees and who was under the orders of the trustees’ harbour master. His duties were principally berthing and mooring of ships within the harbour. The trustees were a pilotage authority under the MSA 1854, but they had not taken steps to licence pilots under Part V of the MSA 1854. M’Gill and other hobblers were employed in piloting ships into the harbour, when required. The trustees received the pilotage dues and applied them for harbour purposes. The harbour was not a compulsory pilotage area. The Lord Ordinary found (see 408-409) that the trustees had not undertaken and contracted to bring the vessel in safely, but that they had only undertaken to give the services of one whom they believed to be duly qualified. The Court of Session disagreed. Lord Ormidale rejected the plea that M’Gill was a “qualified pilot” under the MSA 1854. He concluded that M’Gill was acting as the servant of the trustees in the character of a hobbler rather than a pilot, saying of the trustees and M’Gill at 415-416:
[A]ll they could say was, what their harbour-master stated when examined as a witness, that M’Gill was engaged, without inquiry or examination as to his qualifications or experience, as a man-of-all-work about the harbour, that his proper character was that of hobbler rather than pilot, and that the defenders just employed him and his two comrades “as their servants at weekly wages.”
But if such is the true position of M’Gill – if the relation between him and the defenders is that of master and servant – I must own my inability to understand how the usual consequences and responsibilities resulting from that relation should not in the present instance be held to follow. Not only was M’Gill the defenders’ servant, but he was acting and paid by them as such on the occasion and at the time when, by his fault, the pursuers’ ship was injured. The maxim qui facit per alium facit per se clearly therefore applies , and the fault of M’Gill, the defenders’ servant, must be held to be the defenders’ own.
…
[T]he pursuers desired to have a pilot; the defenders sent out, not a licensed or duly qualified pilot, as I think the pursuers were entitled to expect and were ready to pay for, but one of their own servants or hobblers working about the harbour on a wage of 21s. a week; and that man, acting under the defender’s authority and instructions, took the command of the pursuers’ ship, and by his faulty guidance of her caused the loss and damages now sued for.
[Emphasis added]
It was at this point that Lord Ormidale spoke in terms of the trustees’ undertaking and the significance of licensing as follows at 416-417:
It is in these circumstances, that, in my opinion, the defenders’ liability has been made out. The defenders undertook to bring the pursuers’ ship safely into the harbour of Irvine, but in place of doing so she was seriously injured through the fault of their servant acting under their instructions. The Lord Ordinary has come to the conclusion that no liability has been established on the assumption that the defenders are in an equally favourable position as if M’Gill had been a duly qualified or licensed pilot. It is here I feel myself, with much deference, obliged to differ from the Lord Ordinary. A duly qualified or licensed pilot is a public officer who obtains his certificate only after a careful examination of his qualifications by parties competent to judge of them. On being licensed he occupies an independent position, very much as a notary public or messenger-at-arms does. The public constitute his master, and he is the servant of the public, like these and other public functionaries; and the usual consequences and responsibilities arising from the ordinary relation of master and servant do not arise. It was for this reason – a reason which has no application to the circumstances of the present case – that the harbour and pilotage authorities were assoilzied from liability in the case of Ogilvie and Others v The Magistrates of Edinburgh relied on so much by the Lord Ordinary. The action in that case appears to have been laid upon the allegation that the pilot whose fault was there in question was appointed by the defenders, the Magistrates of Edinburgh, and it was not said that there was any irregularity or illegality in the appointment. But in sending M’Gill in the present case to take command of the pursuers’ ship the defenders sent a man who had never been licensed as a pilot at all, and who occupied merely the position of one of their servants working about the harbour; and in so sending that man the defenders contravened their own bye-laws, and especially the first of that branch of them titled “Regulations for pilots at the Harbour of Irvine,” which is in these terms – “That no person shall act as a pilot for or on board of any vessel trading to or from the harbour of Irvine without being first duly licensed by the harbour trustees, and that under a penalty not exceeding £5 sterling for each offence besides all damages and expenses that may be incurred, and every pilot shall upon his appointment find caution for his good behaviour and faithful discharge of his duties.” But M’Gill had no license, and he never found caution for his good behaviour and the faithful discharge of his duties.
[emphasis added]
Lord Gifford said at 417:
The short ground upon which I rest my opinion may be stated almost in a single sentence. I think, upon the evidence, and looking to the whole circumstances of the case, including the terms of the various statutes under which the harbour trustees acted, that Jeremiah M’Gill, on the occasion in question, was not acting as an independent pilot employed by the shipmaster or captain of the “Gertrude,” and merely licensed or authorised by the defenders, but was acting solely and simply as the servant of the defenders, employed by them alone, and paid by them alone, and acting within the limits of the defenders’ harbour in discharging a duty which the defenders themselves had undertaken to perform. Now, if this be so, I can see no reason for departing from the general rule which makes a master who undertakes any piece of work liable for the fault or negligence of any servant or workman whom he directs to carry out the operations which he, the master, has undertaken. In short, a person who undertakes to do any piece of work by means of a subordinate employed by him is liable for the fault or negligence of the subordinate just as if he had been acting himself.
[emphasis added]
Lord Gifford also construed the relevant Act governing the trustees as providing for the trustees undertaking to provide pilotage.
Lord Gifford contemplated, however, that the shipowners may have been liable for the negligence of M’Gill vis-à-vis third parties as their servant. At 421 he said:
Difficult questions might arise if M’Gill, in the course of piloting the defenders’ ship, had by his fault or negligence occasioned injury to third parties, for example, to other ships in the harbour, or to members of the public, and it is possible that in a question with such third parties he might have been held the servant of the “Gertrude” or of her owners. No such question arises here, and it is enough for the decision of the present case that as in a question between the pursuers and defenders M’Gill was acting solely as the servant of the harbour trustees.
(As the primary judge noted, the reference to “defenders’” in the first sentence should read “pursuers’”.)
The Lord Justice-Clerk agreed and made two points in particular. First, he said that the trustees had contractually agreed to pilot the vessel into the harbour safely. At 421 he said:
First, I am of opinion that the Irvine Harbour Trustees undertook the duty of piloting this vessel into the harbour of Irvine, in consideration of certain payments to be made by the vessel using the harbour, which are directed by their own local statute to be applied for harbour purposes, that is to say, the relation between this vessel the “Gertrude” and the harbour commissioners was one of contract, under which the vessel was bound to pay pilotage dues, and the commissioners in return undertook the safe pilotage of the vessel. Now, when two parties enter into an onerous contract, whereby one agrees to pay and the other to perform, it is the duty of the latter to perform that for which the payment is made with care and skill, and if the duty be negligently performed by the parting contracting or those employed by him, liability will attach to him for the consequences.
[emphasis added]
Secondly, the Lord Justice-Clerk said that the lack of licence of M’Gill was important. At 422 he said:
…No doubt, if the harbour commissioners had sent out a licensed pilot they would have done all that could have been required of them, for it is certain that a pilotage authority, having duly licensed a pilot, is not responsible for any fault he may commit. The licensing of a pilot is the appointment of a public officer, and the supplying of a licensed pilot to pilot a vessel is the due performance of the obligations under which the harbour commissioners lie.
It is not a sufficient performance of that obligation, first to neglect the duty of licensing pilots, and then to send out a man who, however, qualified he may be, is not in the position of a public officer.
As the primary judge pointed out, all three members of the Court were of the view that the trustees had undertaken or contracted to pilot the ship safely into harbour. The neglect of their servant was seen as the means of the breach of that understanding or contract. The relationship of that contractual responsibility, on the facts, with what was stated would have been the position of the trustees had M’Gill been licensed is not entirely clear. If the trustees had undertaken licensing of pilots not only of M’Gill, but of others, under the MSA 1854, the contractual and legal framework would, it would seem, have been different and more likely to have been in accordance with the undertaking found by the Lord Ordinary. The lack of a licence and the performance of the work by M’Gill as servant of the trustees, rather than in this character of a pilot independently retained, was also important.
None of their Lordships, however, dealt with the position of pilots voluntarily retained under general law or the cases dealing with that issue. These cases appear to have been cited in argument only indirectly at 413 of the report by the references to Story J, Commentaries on Agency (1851 ed) at [456], Maclachlan on Shipping (2^nd ed) p 267 (not it should be noted 265), Shearman T and Redfield A, A Treatise on the Law of Negligence (2^nd Ed) and General Steam Navigation Company v British Colonial Steam Navigation Company (1869) LR 4 Ex 238. The propositions put by counsel for the trustees set out at 413 do not squarely raise the position of the pilot voluntarily engaged. None of the judgments of their Lordships in Holman stands as authority for the proposition that absent an undertaking or contract by the trustees, the lack of licence in M’Gill (however that may have arisen) necessarily made the trustees liable for his fault. None of the judgments of their Lordships stands for the proposition that any defect whatever in the licensing of a pilot – irrespective of the skill and competence of that pilot – has the result that in the context of voluntary pilotage the pilot remains the servant of the port authority and does not become the servant of the shipowner as part of the ship’s complement. One issue not dealt with, which may have affected the relevance of these cases on voluntary pilotage, was whether there was any voluntary engagement of M’Gill as a pilot, in circumstances where there was a contractual undertaking with the trustees.
It will be necessary to return to Holman in the context of s 410B of the Navigation Act. For now, it is sufficient to appreciate that the asserted responsibility of the Corporation to Braverus is to be assessed in the context of s 410B, and not, as in Holman, in its absence.
Parker v North British Rail Co was also referred to by Marsden. It was a case concerning a harbour-master taking charge of a vessel on which there was a duly licensed pilot. No detailed discussion of the case is necessary for present purposes.
In circumstances where the pilot was duly licensed and qualified and fulfilling a public duty, a harbour authority, even though the general employer of the pilot, was not liable for his neglect. In Fowles v The Eastern and Australian Steamship Company Ltd (1913) 17 CLR 149, the owners of a vessel which had been stranded in the port of Brisbane while in the charge of a licensed pilot sued the Queensland Government. Pilotage was compulsory. The pilotage service was under the general control of the Queensland government. Pilots were appointed by the government and licensed by the Marine Board. Moneys received for their services were paid into Consolidated Revenue. Pilots were paid a fixed salary. Barton ACJ and Powers J were of the view that the government would be liable for the negligence of its servant. Isaacs J held that the duty of the government was to see that a qualified pilot was appointed. The Privy Council on appeal from the Supreme Court after the trial ([1916] 2 AC 556) agreed with Isaacs J and rejected any liability of the government. There was no contract. The duty of the government was not to pilot the ship but to provide a skilled pilot to do so. Their Lordships said at 562-63:
[B]ut if the question be, as their Lordships think it is, whether or not the defendants were bound to navigate this ship and employed Maxwell to do for them the work which they were bound to do, then it is not conclusive to say that he was in their service unless it can also be said that the Government were “the principals in the piloting of ships,” to borrow the happy phrase of Isaacs J. That phrase seems to hit the point exactly. If Maxwell himself was the principal in the piloting of ships, then the defendants cannot be liable. It was he and not they who owed the duty of careful piloting to the plaintiffs.
In their Lordships’ opinion these Acts of Parliament did not alter the original status of a pilot, which is, in effect, that he must be regarded as an independent professional man in discharging his skilled duties. If it had been intended to alter this old and familiar status, it is to be supposed that the Legislature would have done it more explicitly. What it has done is more consistent with a different and limited purpose, namely, to secure a proper selection, a proper supply, a proper supervision, and a proper remuneration of men to whose skill life and property is committed, whether the ship-owner likes it or not. For this purpose they become servants of the Government. For the purpose of navigating ships they remain what they were, and the duty which the State or Government owes to a shipowner, exercised, it is true, by various authorities, is to provide a qualified man in the terms of the statutes, but not to take the conduct or management of the ship. It is not said that they have failed in this duty of providing a qualified man.
[emphasis added]
As Gibbs CJ said in Oceanic at 637, Fowles has been understood in the High Court as depending on the circumstance that the pilot was executing an independent duty which the law cast on him.
Prior to the first decade of the 20^th century, the issue of the respective responsibilities of the master (as servant of the owner) and the pilot had generally arisen in circumstances where the possibility of sole fault in the pilot might absolve the owner. The importance of compulsion to the defence of the owner was bound up in the pilot’s role. This relationship was exhibited in The ‘Guy Mannering’ (1882) 7 PD 132, where Brett LJ said at 134:
…In England the shipowner is not liable for the acts of the pilot, where pilotage is compulsory: the statutes as to merchant shipping do not accurately define the duty of a pilot; but it is plain that he is to conduct the navigation. On the one hand he has no power to place the crew at particular posts in the ship or to regulate the discipline: on the other hand he is to regulate the course of the ship through the water; he is taken on board in order to control the management of her for this purpose: a sailing vessel cannot be steered unless her sails are regulated in a particular manner; and therefore he has power to regulate the management of the sails. The owner of the ship is not liable for the consequences of the wrongful or negligent acts committed by the pilot, whom he is compelled to employ.
Cotton LJ said at 135-36:
…By the English law, the owner of a ship is not liable for the negligence of a pilot whom he is compelled to employ; and the reason is that the pilot is not the servant of the owner. In some of the sections of Part 5 of the Merchant Shipping Act, 1854, such as ss 359, 362, 388, a pilot is said to “have charge” or to “take charge”, or to “acting in charge;” this language seems to shew that in the opinion of the legislature, when a pilot comes on board, he takes the management of the vessel; in fact, the management of the vessel passes out of the hands of the captain; and therefore it is only reasonable that when pilotage is compulsory, the owner should not be liable for the negligence of the pilot.

In The ‘Guy Mannering’ these principles did not avail the owners in respect of a collision in the Suez Canal with a compulsory pilot on board, because the local law was clear that though the pilot was compulsory, he did not have charge or control of the vessel. He was to be seen only as a compulsory adviser.
At [336] to [350] of his reasons the primary judge gave a clear enunciation of the respective duties of pilot and master, based on the leading texts and the authorities of the day up to the International Convention for the Unification of Certain Rules of Law Respecting Collisions between Vessels done at Brussels on 23 September 1910 (the “1910 Convention”). We gratefully accept and adopt his Honour’s careful analysis. It is part of the general law context for understanding the provisions of the Navigation Act which were the antecedents of s 410B and the cognate United Kingdom provision in the Pilotage Act 1913 (Imp). For present purposes, it is sufficient to recognise that, as a general rule in matters of navigation, the pilot’s authority superseded that of the master. The courts also recognised the necessity of the master being able, and indeed bound on some occasions, to intervene in appropriate circumstances. The primary judge carefully outlined the existing law by the early 20^th century in this regard. It is important, however, to understand that the nature and content of the legal relationship between the master and pilot remained the subject of differing views at this time. This was revealed in the report of a Departmental Committee of the Board of Trade which had been set up in 1909 to enquire into the law of pilotage. The Committee’s report was published in 1911. The Departmental Committee reported upon a legal situation that was seen as less than clear. The existing law of general and specific Acts and the absence of any definite principle governing pilotage legislation was said to be “chaotic”. As the primary judge said at [353] of his reasons, evidence taken by the Committee as to the relationship between master and pilot was divided about the nature of the relationship. Douglas & Geen state the following at [19.23]:
The legal relationship between master and pilot was the subject of considerable discussion by the committee and the opinion of those who gave evidence was clearly divided. Lord Gorell, a former President of the Probate, Divorce, and Admiralty Division of the High Court, was of the opinion that “no-one unaccustomed to a particular ship can handle her as her master and officers can”, while Sir Kenneth Anderson, Chairman of the Orient Steam Navigation Company, said that “it is obviously better that the actual giving of orders should rest with the man who has the knowledge than with the man who seeks advice”. One shipmasters’ organization said that “in a district where pilotage is compulsory, the pilot should have sole and complete charge of the ship”, while another said that “under no circumstances should a master give up charge of his ship or the control of his crew”. Pilots, understandably, were almost unanimous in the view that the pilot should have complete control. A typical view was expressed by the Manchester pilots who said that the pilot’s authority “should be absolute in the control of the ship while within his jurisdiction”. Having weighed all the evidence the committee recommended that there should be an express provision in the new pilotage legislation that the pilot should be given a subordinate role.
[footnotes omitted]
Also, by 1912, the 1910 Convention had been agreed to. By Article V thereof, Contracting States had agreed that the liability imposed by Articles I-IV for collisions would attach in cases of compulsory pilotage. Thus the defence of compulsory pilotage was agreed to be removed.
The legislative response in the United Kingdom and Australia
In response to the international obligations created by the 1910 Convention the United Kingdom repealed s 633 of the MSA 1894 which ceased to have effect on 1 January 1918 when s 15(1) of the Pilotage Act 1913 (Imp) took effect. This provided in terms as follows (being substantially identical to the current s 410B(2) of the Navigation Act):
Notwithstanding anything in any public or local Act, the owner or master of a vessel navigating under circumstances in which pilotage is compulsory shall be answerable for any loss or damage caused by the vessel or by any fault of the navigation of the vessel in the same manner as he would if pilotage were not compulsory.
The provision remained in these terms until the introduction of s 16 of the Pilotage Act 1987 (UK).
The Commonwealth Parliament also removed the defence of compulsory pilotage by enacting ss 351 and 352 of the Navigation Act, though in somewhat different terms to s 15(1) of the Pilotage Act. Sections 351 and 352 originally provided as follows:
351(1)The duty of a pilot shall be to pilot the ship subject to the authority of the master, but the master shall not be relieved, by reason of the ship being under pilotage, from responsibility for the conduct and navigation of the ship.
351(2)The owner or master of a ship shall not be exempt from liability for any loss or damage occasioned by the fault or want of capacity of a pilot by reason of the fact that the employment of the pilot is compulsory.
352(1)An unauthorized person may take charge of a ship as pilot –
(a)when the master has used all reasonable means to obtain an authorized pilot, but no authorized pilot is available; or
(b)when the ship is in such circumstances as to make it necessary for her safety that she should be brought into port at once.
(2) In any such case, so soon as an authorized pilot presents himself, the master shall cause charge of the ship to be at once given up to him.
Penalty: Fifty pounds.
(3) Except as allowed by this section, no unauthorized person shall act as pilot.
Penalty: One hundred pounds.
‘Pilot’ was defined in s 6 so as to mean: any person appointed or licensed as such under the Act, and not belonging to a ship, who had the conduct thereof.
The primary judge referred at [356] of his reasons to the exchanges in the Commonwealth Parliament as to the clauses which became ss 351 and 352 of the Navigation Act. The Attorney-General (Mr Hughes, who had been the Chairman of the Royal Commission on the Navigation Bill presented to the Commonwealth Parliament in 1906) in Committee on 17 and 22 October 1912 (see House of Representatives Debates 17 and 22 October pp 4357 and 4481-82) made clear his view that the current state of the law regarding the relationship of owner to pilot was unsatisfactory. He said that there was a perceived lack of clarity of responsibility (he referred to the Departmental Committee Report and the search for uniformity in the 1910 Convention). He expressed the view that the clear statement of the authority of the master (in cl 351(1)) was a change to the law and was harmonious with the responsibility placed on the owners in circumstances of compulsory pilotage by cl 351(2).
At [357]-[361] of his reasons, the primary judge outlined the course of the Navigation Act provisions up to the current form of s 410B. The form of s 410B(2) appears to have been adopted in 1934 (as s 351(2)) and was based on s 15(1) of the Pilotage Act.
As has been noted, in the original Navigation Act the word “pilot” was defined as a person licensed under that Act. In 1934 a subsection (3) was inserted into s 351 defining “pilot” as follows:
For the purposes of this section “pilot” includes any pilot employed or licensed by any State Government, Marine Board or other State authority to pilot ships in any port or district in which the employment of a pilot is compulsory.
[emphasis added]
In the Navigation Act 1958 (Cth), the word “pilot” was defined (as it is now) as meaning a person who does not belong to, but has the conduct of a ship, without reference to licensing. The explanatory notes to the Navigation Bill 1958 provide the following commentary on the change to be wrought by the Bill in the definition of “pilot”:
The present definition means only a pilot appointed or licensed under the Act. There are no such pilots, because pilotage remains a function of the States. The new definition therefore is limited to the normal meaning of the term, ie. a person not belonging to a ship, but having the conduct of it.
In the Senate, in committee, the Minister for Shipping and Transport was asked why the Bill contained no reference to pilots in contrast to the provisions of the existing Act to which he replied (reflecting what is contained in the Explanatory Notes):
It has been removed altogether. When the principal Act was originally enacted, it was assumed that pilots and piloting would be the business of the Commonwealth. In point of fact, that assumption has not been borne out.
In none of the versions of the Navigation Act was the word “pilotage” defined.
At [362] to [377] of his reasons, the primary judge discussed the impact of the statutory regime put in place after the 1910 Convention and whether it affected the respective responsibilities of the master and pilot as they had been explained in the cases before 1910. The context of this discussion was the assessment of the duty upon Capt Krol and whether he had breached it. (No question of this breach of duty was argued on the appeal.) Nevertheless, we agree with his Honour’s analysis. It is of some remaining relevance, because of its relationship to an understanding of ss 351 and 352 and then s 410B of the Navigation Act.
The jurisprudence on s 15(1) of the Pilotage Act and s 410B of the Navigation Act
Sections 15(1) of the Pilotage Act and 410B(2) of the Navigation Act have been the subject of considered views of the Court of Session in Scotland, the House of Lords (twice) and the High Court. Each of these cases, in one way or another, treated the effect of s 15(1) or s 410B(2) as making, for all purposes, the pilot the servant of the shipowner. In each case, the legal relationship of the owner and pilot was to be predicated upon that statutorily mandated foundation.
At this point, it is important to recall the point made earlier that the issue may be approached by reference to two questions: the application of the provision, in particular in the circumstances of the pilot being unlicensed, and if the provision applies, the extent of its operation. All the cases about to be discussed deal with the second of these questions, not the first. In none of the cases about to be discussed was the pilot unlicensed. The answer to the first question depends on the proper construction and interpretation of s 410B(2) and whether it applies to the circumstances of the pilot not being licensed. It is necessary, however, in the light of some of the submissions of Braverus as to the limits of the operation of s 410B(2), based on the judgment of Brennan J in Oceanic and the jealous construction of immunities called for by Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575 to examine each of these cases to appreciate the width that has been given to s 15(1) of the Pilotage Act and s 410B(2) of the Navigation Act.
In Thom v J & P Hutchison Ltd 1925 SC 386, the Court of Session dealt with s 15 of the Pilotage Act. The widow of an engineer killed aboard the steamship Smerdis sued the owners alleging that he had been killed by the fault of the pilot navigating the ship in the Mersey where pilotage was compulsory. Smerdis struck the anchor chain of a vessel moored in the river, was holed, took on water and went down, ten of the crew perishing, including the engineer. The owners defeated the widow’s claim by the Scottish equivalent of the doctrine of common employment – the pilot was treated as a servant of the owner. The argument that the relationship of owner and pilot voluntarily engaged was that of agency was rejected. Lord President Clyde at 392-3 said that a voluntarily engaged pilot was a constituent member of the ship’s company under service, not agency. This voluntary relationship of service gave the owner power to direct and control the manner in which the pilot exercised his duties. The Lord President stated the matter in categorical terms at 392-93 as follows:
The point mainly relied on by the pursuers was the absence of power, on the part of the owners of the ship, to direct and control the manner in which the pilot exercised his duties. But, if the employment is voluntary, I see no more reasons to doubt the right of the employer to do so – however foolish it might be for him to attempt it – in the case of the pilot than in the case of the captain. It is no doubt true that the highly skilled nature of the work to be done and the remoteness of the ship from her owners make actual direction and control practically impossible in either case. But it is now for the first time suggested that the legal relation between a seaman and the owner of the vessel on which he serves is other than that of master and servant; and – though I rather think it is true that there is no case in which the true nature of the legal relation of a pilot (voluntarily engaged) to the owners has been canvassed – it has never been doubted throughout a long series of cases that it is that of service. The earliest quoted to us was that of The “Maria” – 1 W. Rob 95 per Dr Lushington, at pp 107, 108. Lord Chelmsford evidently treated the point as one not open to doubt in Prowse v European and American Steam Shipping Co. – 13 Moo P. C. 484, see at the end of the judgment. And the same understanding clearly underlies the reasoning in one of the latest cases – Steamship “Beechgrove” v Atkieselskabet “Fjord,” 1916 S.C (H.L.) 1, [1916] 1 A. C. 364. It is unnecessary to make a larger citation.
…
The pursuers, indeed, argued, with a somewhat subtle ingenuity, that while (under section 15 of the 1913 Act) the owners of the ship in the present case must be deemed (contrary to the fact) to be the voluntary masters of the pilot as their servant, to the effect of establishing liability on the owners for the negligence of the pilot, there was nothing in the section requiring or warranting that the members of the crew must be deemed (contrary to the fact) to be the fellow servants of the pilot, to the effect of depriving them of the right to enforce the owners’ liability to them. But it is, I think, a sufficient answer to say that the liability artificially made to rest on the owners must be taken with all the legal qualifications attaching to it, and the defence of collaborateur is one of them.
[emphasis added]
The Lord President referred to The ‘Maria’ to which we have referred. The reference by the Lord President in the same passage to Lord Chelmsford in Prowse v European and American Steam Shipping Co (1860) 13 Moore 484; 15 ER 182 was a reference to the appeal from Dr Lushington in The ‘Peerless’. There, Lord Chelmsford, said the following at 509 (191):
The third question being thus determined upon the Act, and the rules and regulations, it is unnecessary to consider the general principles on which the right of exemption was also founded, because if the parties were not compelled to take a Pilot the whole foundation of this part of the argument fails, and there is no ground whatever for saying that the owners are exempt from the ordinary liability which attaches upon them for the negligence of their servants.
[emphasis added]
In Thom, Lord Cullen was also clear as to the position of master and servant. At 393-94 he said:
Now, it is well settled that an owner is liable for loss or damage caused by fault in navigation on the part of a pilot voluntarily employed by him. And the ratio of this liability has always been stated to be that such a pilot is the servant of the owner. He is employed to take up pro tempore the captain’s function of navigator in circumstances where special local knowledge is required. It is true that he is not a kind of servant of whom it can be said that he is bound to obey his employer’s orders, not only as to work to be done, but also as to how he shall do it. But the same thing applies to the captain.
If the compulsory pilot is to be regarded under this enactment as the servant of the owner, I agree with the Lord Ordinary’s conclusion that the doctrine of colloborateur applies. It is well settled that a captain and members of his crew are collaborateurs, and I can see no difference in this respect between the case of the captain and that of the pilot.
[emphasis added]
In Thom, Lord Sands expressed some reservations as to the result, but nevertheless agreed with the Lord President and Lord Cullen, saying at 394-395:
Examination of the cases in which liability for negligence where the pilotage was voluntary has been affirmed shows that this conclusion is based upon the theory that liability results from the fact that a voluntary pilot is a servant of the shipowner. If you carry across this rule of liability to the compulsory area, you must carry with the rule the theory in which it originates, and accordingly the compulsory pilot becomes quoad hoc a notional servant. The actual servant, viz., the seaman, must be held to be a collaborateur with this notional servant, the compulsory pilot, and, accordingly, the shipowner avoids liability.
I find these considerations somewhat perplexing, but I have come to be of opinion, particularly in view of the opinion of your Lordships, that I must have involved myself in this perplexity by introducing an unnecessary subtlety. When the pilotage is compulsory, the shipowner is to be liable in the same way as he would be if pilotage were not compulsory.
[first emphasis added, second emphasis original]
The scope of s 15(1) of the Pilotage Act was explored in Workington Harbour and Dock Board v Owners of ‘Towerfield’ [1949] P 10 (Court of Appeal) and [1951] AC 112 (House of Lords). In 1941, Towerfield grounded in the approaches to Workington harbour, while under pilotage, which was compulsory. The ship was damaged. The owners claimed against the Harbour Board based on negligence and on an alleged contract or warranty that the depth of the harbour was in accordance with an Admiralty chart, which was said to be based on a plan supplied by the Harbour Board. The Admiralty chart was misleading as to depth. The Harbour Board counter-claimed for damage to the harbour caused by the ship. Willmer J found the Harbour Board to be negligent, but that the grounding was caused solely by the pilot’s negligence. He dismissed the plaintiffs’ (owners’) claims and gave judgment for the counter-claimants (Harbour Board) on the counterclaim. The Court of Appeal unanimously upheld the appeal on the counter-claim (thereby dismissing it) and by majority upheld the plaintiffs’ appeal and found their claim succeeded. The counter-claim failed in the Court of Appeal because the Court of Appeal (contrary to Willmer J) was of the view that the negligence of the Harbour Board was causative, and that it was therefore guilty of contributory negligence. The Court of Appeal was, however, divided on the effect of the pilot’s negligence on the plaintiffs’ claim.
Bucknill LJ, after a comprehensive review of the relevant provisions concerning the shipowner’s defence in respect of damage caused by the fault of pilots, the 1910 Convention and the case law came to the view that the word “answerable” in s 15 of Pilotage Act was intended to be as wide as it had been under the MSA 1894 and previous statutes in expressing the protection to the owner. It was intended, he said, to cover all claims both by and against persons in which the conduct of the compulsory pilot was a contributing cause. In removing entirely the defence of compulsory pilotage, and by using language of “answerability” previously used in the expression of the defence, s 15(1) put on the shipowner the same responsibility for the acts of a compulsory pilot as he had always had for the acts of a voluntary pilot, namely a contractual relation of service, to which the maxim respondeat superior applied: see [1949] P at 22-28. The claim in tort thereby failed by reason of the contributory negligence of the pilot. Bucknill LJ rejected the plaintiffs’ claim in contract, because he found an implication in the posited contract that the plaintiffs would use reasonable care and skill in navigating the channel. They had not done so, by reason of the pilot’s negligence attributed to them.

Some criticism was made by Braverus of the primary judge’s asserted failure to deal in detail with the events after the 150m point. The Corporation submitted that that could be explained by the fact that the case under s 52 of the TPA had not been put to the primary judge on the basis of the importance of the detail of these events. We think that there is significant force in this answer by the Corporation. It is unnecessary to descend to the minutiae of the detail of the conduct of the case. The material that we have discussed above allows us to conclude that there was no reliable evidence to found any conclusion that the master relied on the pilot’s conduct either at or after the 150 m point.
The explanation for the master’s delay is his negligence and not his reliance on alleged deceptive conduct or misleading statements. We are therefore not satisfied that his Honour erred in concluding that there was no reliance, as alleged by Braverus, on the part of the master.
The claim based in contract
The primary judge found that no contract was entered between Braverus and the Corporation. Rather, his Honour concluded that the Corporation performed its statutory duty (albeit, if the Corporation were responsible for Capt James, imperfectly). His Honour set out at [579] to [587] of his reasons the manner in which Braverus alleged that a contractual relationship came into existence. No complaint was made as to any underlying finding of fact in this regard.
The primary judge said that the essence of a contract was the voluntary assumption of a legally enforceable duty, citing Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424 at 457 (per Dixon CJ, Williams J, Webb J, Fullagar J and Kitto J) and Astley v Austrust Ltd (1999) 197 CLR 1 at 36.
At [592] to [595] of his reasons the primary judge set out the legislative framework for his conclusion that the acts of Braverus and the provision of pilotage services by the Corporation were undertaken as required by law. There was no obligation undertaken and no charge made by the Corporation and no request made by Braverus beyond that which were required by the relevant provision of the PCWM Act and Regulations thereunder. No error in that analysis was asserted.
The primary judge recognised (at [596] of his reasons) that s 67 of the PCWM Act authorised the Corporation to enter into an agreement beyond the matters provided for by the Act and Regulations. That is, as the primary judge said:
Section 67 allows for agreement to be reached, with the approval of the Minister, for a regime different from that which would otherwise flow from the application of the Act.
However, as the primary judge said, s 67 had no application in the present case, because there was no agreement for any regime in relation to the provision of a pilot or for payment different from that which the PCWM Act and Regulations made provision; nor was there any approval of the Minister to enter into such a different agreement.
The error which the primary judge was said to have committed was to be found in the analysis undertaken by him from [601] to [608] of his reasons. It was submitted before the primary judge and was submitted on appeal that, in the circumstances, there was more than an arrangement on the part of Braverus and the Corporation to discharge a statutory obligation. The additional matters upon which reliance was placed both below and on appeal were the fact that the Corporation was carrying on the business of the provision of pilotage services for profit and that the Corporation assumed the function of piloting vessels into and within Port Kembla itself as opposed to making a licensed pilot available.
The Corporation was plainly not aware of the fact that it was providing an unlicensed pilot. We have dealt in the section on the TP Act with our view that the primary judge erred in his conclusion that the Corporation was not engaging in trade or commerce. However, the fact that the Corporation was so engaging in trade or commerce does not lead to the conclusion that it necessarily assumed a contractual obligation. Entry into contracts is a conventional means of doing business. The Corporation is a State-owned corporation. Section 7 of the PCWM Act and the principal objectives in s 9 of the PCWM Act refer to modern principles of government administration exhibiting businesslike activity. Further, s 20F of the State OwnedCorporations Act 1989 (NSW) provides that a state owned corporation is not and does not represent the State. The Corporation had a statutory objective to be a successful business and to maximise the net worth of the State’s investment in the Corporation, as the primary judge found.
From [604] onwards the primary judge analysed the significance of these matters. His Honour concluded that the question of whether there was an agreement or mutual assent depended on the question whether the parties had a choice as to whether they could agree and as to the terms or conditions on which they could or would do so. Where there is compulsion, his Honour said, no question of contractual intent in either party arises: Lismore City Council v Stewart [1989] 18 NSWLR 718 at 726.
It was said on appeal that the legal obligation of the Corporation to act and charge as it did and the legal obligation of Braverus to act and pay as it did were not determinative. Particular reliance was placed on NT Power Generation Pty Ltd v Power and Water Authority (2004) 210 ALR 312 and at [85], Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575 at [17], [38] and [88], Airways Corporation of New Zealand Ltd v Geyserland Airways Ltd [1996] 1 NZLR 116 and Bunbury Harvey Regional Council v Giacci Bross Pty Ltd (2000) 117 LGERA 1.
Nothing in NT Power falsifies any conclusion reached by his Honour. The fact that s 46 of the TPA may require a party to provide access to a right or to property, failing which he she or it may be exercising a degree of market power is not to the point. Puntoriero is of no assistance to Braverus. The existence of a contract was admitted on the pleadings: Puntoriero at [88].
In Airways Corporation of New Zealand, the applicable legislation did not require the charges be paid to the Airways Corporation and the Airways Corporation was not bound by statute to provide the relevant service.
In Bunbury-Harvey, Hasluck J said that the essence of a contract was that there was a voluntary assumption of a legal enforceable duty and that that question will have to be answered by reference to the circumstances of the particular case.
These considerations concerning Airways Corporation and Bunbury Harvey perhaps explain why his Honour did not feel it necessary to refer to them. (The failure of his Honour to do so was a matter of criticism by Braverus on the appeal.)
It is unnecessary for us to examine whether s 410B of the Navigation Act or s 85 of the PCWM Act would operate to exclude any relevant liability on the part of the Corporation in respect of any such posited contract. The Corporation asserted that it would rely on The ‘Towerfield’, The ‘Cavendish’ and Amarantos Shipping Co Ltd v South Australia (2004) 89 SASR 438 at [69] to [73]. It is not immediately apparent to us that if a contract existed whereby the Corporation contracted to provide services (and into which s 74 of the TP Act would imply terms, see below) these provisions of the Navigation Act and the PCWM Act would overcome the contract made by the parties. The posited liability may be seen not to be dependent upon vicarious responsibility of the Corporation for Capt James, but upon an personal obligation assumed by it.
None of the cases cited by Braverus in argument overcomes the difficulty so clearly put by the primary judge at [606] of his reasons:
The fact that there has been a commercialisation of entities, such as the Corporation, carrying out statutory functions does not alter the fact that both the creation of the relationship between the Corporation and the defendant, and the fixing of its terms, arose by the operation of the PCWM Act. The Corporation offered a pilot to the Fortius because it was bound to do so, and the defendant took a pilot on board the Fortius because it was bound to accept and, as I have outlined above, even the resultant financial obligations between the defendant and the Corporation were imposed by the PCWM Act. The absence of voluntariness and the fact of compulsion operating on both the defendant and the Corporation must inevitably lead to a conclusion that in the case of routine arrangements for the provision of pilotage, such as the present, there is no contract.
The reference by Isaacs J in Fowles (1913) 17 CLR 149 at 177 to the government taking up the business of piloting ships was not to such occurring by compulsion of law. Rather, on the contrary, it is clear from a reading of the whole of his reasons (in particular at 183) that Isaacs J was distinguishing the position of conduct required by legislation and the voluntary entering upon the business of piloting ships independently of, and in addition to, that which was contemplated by statute.
The conclusions of the primary judge are also in accordance with other authority to the effect that legal compulsion as to the creation of the relationship (that is that the relationship must in the circumstances be formed) and as to the fixing of the terms of the compulsory relationship is inconsistent with the existence of a contract: Norweb Plc v Dixon [1995] 1 WLR 636, 643 and 647; Pfizer Corporation v Ministry of Health [1965] AC 512, 535-36, 544-45, 548, 552-53 and 571; RW Miller & Co v Shortland CC (1988) 83 ALR 225 at 227; Lismore City Council v Stewart (1989) 18 NSWLR 718 at 725-26; and Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532 at 542.
No doubt some modern government practices reflected by the use of State-owned corporations can be seen to thrust government corporations into the world of business, or, more relevantly perhaps, trade or commerce. That is reflected elsewhere in our reasons that, in our view, had there been a misrepresentation or misleading or deceptive conduct by the Corporation it would have been in trade or commerce. That conclusion, however, does not answer a different, and distinct, question as to whether there was a voluntarily assumed obligation as the foundation for the existence of a contract.
We see no error in the approach of the learned primary judge nor in his conclusion that there was no contract between Braverus and the Corporation.
The decision of the Full Court of South Australia in Director of Posts & Telegraphs v Abbott (1974) 7 SASR 540 relied on by Braverus in a footnote to its written submissions was dealing with a specific factual situation and is not an authority for any proposition contrary to the approach of the primary judge. That the development of modern government enterprises as a form of outsourced government administration may make contractual relations with governments in the supply of services more frequent can be accepted, but it does not answer a question whether there is room for any voluntary assumption of responsibility in a case such as this.
Whilst it is unnecessary to reach a final view on the matter, if we are wrong in our view as to the existence of a contract, we do not see s 74(3) of the TP Act as assisting the Corporation. Section 74(3) of the TP Act is, relevantly, in the following terms:
(3) A reference in this section to services does not include a reference to services that are, or are to be, provided, granted or conferred under:
(a) a contract for or in relation to the transportation or storage of goods for the purposes of a business, trade, profession or occupation carried on or engaged in by the person for whom the goods are transported or stored; …
The pilotage services were provided (on this hypothesis) under a contract between Braverus and the Corporation. That contract was not for the transportation of goods. Was it a contract in relation to the transportation of goods for the purposes identified by the subsection? We think not. The purpose of s 74(3) was to ensure that the well-known law governing transportation of goods (by air, land or sea) and storage of goods was not to be radically amended by s 74, in particular given the well established insurance arrangements in respect thereof: Explanatory Memorandum accompanying Trade Practices Revision Bill 1986 at paragraph 153; see Heydon JD Trade Practices Law Vol 2 at paragraph 16.850. With that purpose understood, there is no relevant relationship between the contract to provide the services and the transportation of goods. It could be no more said that a contract to provide pilotage services related to the transportation of goods because it was a necessary precondition to get the ship to the berth, than it could be said that a contract to repair the ship before sailing related to the transportation of goods because, without the repairs, the ship would not sail.
The ambit and construction of s 86 of the PCWM Act
The primary judge concluded that the Corporation took the benefit of s 86 of the PCWM Act, which is in the following terms:
(1)Neither the State, nor the Minister, nor a pilotage service provider is liable for any loss or damage that is attributable to the negligence of any person employed as a pilot by the pilotage service provider while the person is acting as a pilot.
(2)A person employed as a pilot by the pilotage service provider is not personally liable in pecuniary damages for any loss or damage attributable to the person’s negligence while the person is acting as a pilot.
Braverus asserted that the primary judge erred in two respects: (a) in concluding that Capt James, though lacking a licence, was “employed as a pilot” and “acting as a pilot” and (b) in concluding that the Corporation was a “pilotage service provider”. (As to (a), para 18 of the Notice of Appeal was limited to the question of “acting as a pilot”. The submissions were directed to both phrases. No objection was taken to the width of the submission on this basis.)
acting or employed as a pilot
The primary judge concluded at [656] to [660] (incorporating also [417] to [421]) of his reasons that Capt James was employed and acting as a pilot. Part of his Honour’s reasoning was the view he took that the difference in definition of the word “pilot” in the Marine Pilotage Licensing Act1971 (NSW) (the “MPL Act”) and in the PCWM Act was of importance. In the MPL Act (an Act, of course, dealing with licensing) the word “pilot” was defined for the purposes of that Act as a person licensed under s 7 of that Act to conduct ships to which he or she did not belong. Under s 6 of the MPL Act a person is deemed not to be a pilot when acting otherwise than in conformity with the relevant licence. Under the PCWM Act, the word “pilot” is defined in very similar terms to the definition in the Navigation Act.
The word “pilotage” is also defined by s 77 of the PCWM Act as meaning the conduct of a vessel by a pilot in three described ways.
In our view, the primary judge was correct not to imply into the definition of “pilot” in the PCWM Act the word “licensed” or “lawfully”. The MPL Act and the PCWM Act are, no doubt, statutes in pari materia in one sense. That does not lead to the conclusion, however, that their specific provisions should, in some sense, be merged. The difference in definition can be seen to be important in the operation of ss 85 and 86 of the PCWM Act to bring them into conformity with the operation of s 410B of the Navigation Act, with its definition of “pilot”. We do not see an intention in the PCWM Act to restrict the operation of ss 85 and 86 to the conduct lawfully of the pilotage. The closeness of the relationship of the two Acts and the closeness of their subject matter assist in the conclusion that the clear differences in definition were intended to bring about differences in operation. Sections 85 and 86 of the PCWM Act (as does s 410B of the Navigation Act) work upon a framework of a pilot and pilotage being identified by the objective conduct contained within the definition of the word “pilot”: someone who has the conduct of ship or vessel, but who does not belong to her. In that framework, the shipowner has responsibility. The immunities in s 86 can be seen to fall within that framework.
That the two Acts were intended to achieve different aims can be seen by the recognition that the MPL Act provides for the licensing of and restrictions on pilots for the safe and efficient working by them of the heavy responsibilities placed on them. The PCWM Act provides in Part 6 for various aspects of the conduct of the activity of pilotage including the circumstances when it is compulsory: ss 78 and 79, the duties of a master: s 84 and the offence of a pilot who endangers a vessel: s 87. It was hardly likely to be intended by Parliament that an offence such as that against s 87 was to be limited to a pilot with a relevantly valid licence and who otherwise acted lawfully, but not to a person who had a defective licence but nevertheless had the conduct of the vessel and did not belong to the ship. The differences in definition appear to us to have been intended.
pilotage service provider
The phrase “pilotage service provider” is defined in s 77 of the PCWM Act relevantly as meaning:
in relation to pilotage services provided by a Port Corporation under an operating licence—the Port Corporation, …
…
The phrase “operating licence” is defined in s 3 of the PCWM Act to mean “an operating licence issued to the Port Corporation by the Governor under Division 3 of Part 2”.
Section 11 of the PCWM Act (within Division 3 of Part 2) defines the phrase “port safety functions” to include”:
the functions of providing or arranging for the provision of … pilotage services.
Section 12 of the PCWM Act provides:
(1) The port safety functions exercisable by a Port Corporation are to be determined by the Minister.
(2) Any such port safety functions may only be exercised by a Port Corporation in accordance with an operating licence issued to the Port Corporation by the Governor on the recommendation of the Minister.
(3) While a Port Corporation holds an operating licence, the Port Corporation must exercise the port safety functions to which it applies and must do so in accordance with the licence, the marine legislation and any other relevant Act or law.
(4) This Division does not limit the functions that may be delegated to a Port Corporation under this Act. This Division also does not limit the exercise of port safety functions by the Minister or their delegation under the marine legislation to others.
The primary judge concluded at [645] to [655] of his reasons that the Corporation was a pilotage service provider for the purposes of s 86.
Braverus contended before the primary judge and on appeal that the licence issued to the Corporation distinguished, as a matter of expression, between the Corporation and the pilotage service provider as different entities. Thus, it was said, the Corporation had never been appointed or licensed as a pilotage service provider.
The primary judge construed the terms of the relevant licence issued in 2000 against the background of the practical operation of the industry in relation to which the licence was granted. Since at least 1989, only the Corporation had provided pilotage services in Port Kembla. The licences issued prior to the current licence plainly referred to the Corporation as the pilotage service provider. The changes in wording of the licence were not accompanied by any change in actual practice.
We see no error in the approach of the primary judge to the construction of the licence. We agree with his Honour’s reasons.
Thus, s 86 of the PCWM Act protects the Corporation from the consequences of the negligence of Capt James.
The appeal concerning Port Kembla Coal Terminal

We now turn to the appeal as between the plaintiff and Braverus.
The primary judge refused to make any allowance for contributory negligence. His Honour’s reasons are contained in [443] to [483] of his judgment.
The argument for the asserted contributory negligence and the reason why the argument is flawed are straightforwardly explained.
The plaintiff’s own operating procedures required the parking of the No1 ship loader at or near the centre of the berth at CB2. The reasons for this cannot be more clearly expressed then by using the words of the primary judge at [444] to [449] of his reasons:
When the ship loaders were originally commissioned for use in 1982, it was the plaintiff´s practice to park the loaders on the maintenance platforms at either end of CB2 when they were not in use. However, between 1982 and 1984 there were a number of collisions between vessels and the ship loaders when the loaders were parked in that position.
By 1985 the procedure had changed. Thereafter the ship loaders were kept off the maintenance platforms at the ends of CB2. The present incident is the first occasion since the 1985 change in procedure where a vessel berthing at, or sailing from, CB2 has damaged either ship loader.
The accepted berthing practice at CB2 is to swing the vessel in the inner harbour until the vessel is aligned roughly north-south and parallel to the berth. The vessel is then reversed, stern first, into the Eastern Basin (CB2 being located on the eastern side of the Eastern Basin). When the vessel is about 50 metres off the berth, the vessel is pushed from west to east parallel with and up to the berth. The object is to have the vessel make gentle contact with the berth´s fender system in a parallel position to the berth. The fenders on CB2 have about a 2 metre stand off from the face of the berth.
Typically, a vessel flares at the bow and stern so that it overhangs beyond its waterline. If the vessel develops a position whereby it is at an angle to the berth as it is being pushed up to the berth, then the flares at bow or stern can overhang the berth edge, in some cases significantly, and strike any wharf-side appliances, such as ship loaders, that might be adjacent to the bow or stern flares. Usually the stern lands on the berth slightly before the bow, hence it is the No 2 ship loader at the northern end of the berth which is most at risk.
CB2 is not long enough to enable equipment such as the ship loaders to be completely removed from the docking area. Of necessity, the rails for the ship loaders had to be close to the edge of the berth to enable the loaders to reach over the ship and to carry out their loading functions. Thus the risk of injury to the loaders if a berthing operation does not go according to plan cannot be completely eliminated. As the loaders cannot be completely withdrawn from the berth face, the next best thing is to position the loaders so that they are clear of where the bow or stern of the ship is likely to be if there is some mishap in the berthing operation.
For these reasons, the appropriate practice is to place loaders and cranes (and the ship loaders on CB2 in particular), at a location that will be alongside the parallel (ie, flat) areas of a vessel´s hull, and not adjacent to the zones where the vessel flares at bow and stern. Whether the exercise of reasonable care requires the adoption of some more stringent practice is the subject of controversy.
It can be seen from the above that the risk which the operating procedures sought to minimise was the striking of the loader during the berthing operation during which the ship was pushed, roughly parallel, towards the berth by tugs.
The documentation referred to by the primary judge at [451] to [453] of his reasons made clear the currency of the procedures.
The primary judge found that the usual practice was to park the loader not at the geographic centre of the berth but “where the parallel part of a cape size vessel will come into contact with the fenders”: [461] of his reasons.
In [462] of his reasons, the primary judge described where the No 1 loader was parked – between the second and third fenders marked on the diagram below that paragraph (being the left-hand shaded rectangle). If the loader had been parked at the centre of the berth it would have been placed where the right-hand shaded rectangle appears.
If the No 1 loader had been parked at the centre of the berth it would not have been damaged in this incident. Therefore, it was said, the failure to follow the operating procedures was contributory negligence for which allowance should have been made.
The primary judge rejected this claim for contributory negligence because of a perceived absence of causal relationship between the conduct said to be negligent and the loss or damage. In our view, the primary judge was correct so to conclude.
Braverus criticised the primary judge for his focus on causation. That criticism was misplaced. Section 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), picked up by s 79 of the Judiciary Act 1903 (Cth) in a matter in the exercise of federal jurisdiction, provided as follows:
(1)If a person (the "claimant") suffers damage as the result partly of the claimant’s failure to take reasonable care ("contributory negligence") and partly of the wrong of any other person:
(a) a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and
(b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.
(2)Subsection (1) does not operate to defeat any defence arising under a contract.
(3)If any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of subsection (1) is not to exceed the maximum limit so applicable.
[emphasis added]
The words “as the result” in s 9(1) plainly import the notion of causation. See also Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 165.
His Honour dealt with the causation question at [478] to [482] of his reasons as follows:
However, the strategy of locating the loaders at the centre of the berth when a vessel such as the Fortius is berthing is intended to guard against the risk of angularity arising as the vessel, when parallel to the berth, is pushed into the berth by the tugs. Consideration of the potential adverse angles of approach of the range of vessels likely to use the berth is an important parameter in the design of a berth. Mr MacKnight agreed that a berth and the facilities on the berth are never designed to take account of a vessel hitting the berth at an angle close to 90 degrees, because that would be so outside the parameters of what would be normal that it would be fanciful to seek to design a berth for that eventuality. The fender system, for example, is not designed to cater for that eventuality. Mr Oram was of a similar view. Commonly, in Mr MacKnight´s experience, the angle of approach for a vessel in a harbour such as Port Kembla would rarely exceed 5-6 degrees.
The circumstances in which the Fortius collided with CB2 on 15 April 2002 were outside the class of risk against which a sound strategy for loader placement is designed to afford protection. The Fortius never completed its swing, nor did it get into a position parallel to the berth from which the tugs could push it in to the berth. In the circumstances as they existed prior to the collision, the coal loaders were at risk wherever they were placed on the berth. It was a matter of mere chance as to where a vessel manoeuvring so far outside the norm would hit the wharf. There is no evidentiary foundation for a conclusion that it was less likely that the Fortius would strike the centre of the berth rather than some other point on the berth. Had the loaders been placed on the maintenance bays (the least safe part of the berth in the context of a berthing operation), they would not have been damaged.
The requisite causal link between the damage to the coal loaders and the plaintiff´s negligence is therefore lacking. It is the issue of causation which distinguishes this case from the Southampton Container Terminals Ltd v Hansa Schiffartsgesellschaft mbH [1999] 2 Lloyd´s Rep 491 (`The Maersk Colombo´ ). Causation questions involve value judgments. Whilst it is true to say that the No 1 loader would not have been damaged had it been placed at the centre of the berth, in the circumstances of this case that is entirely fortuitous.
The commonsense test of causation is a two stage process. In F Trindade & P Cane, The Law of Torts in Australia, OUP, 3^rd Ed, 1999, the authors state (at 565) that the negligence must be a factual cause of the loss and must also be a legal or attributative cause of the damage. Foreseeability is relevant to legal causation but is not decisive of it. The authors give the following example (at 565):
`In Jones v Livox Quarries[[1952] 2 QB 608] Denning LJ said [ at 616] that the negligence of the plaintiff in riding on the tow-bar of a vehicle would be a cause of injury to P whether P was thrown off the tow-bar or crushed when another vehicle collided with it. But there would be no (attributive) causal link between P´s injuries and P´s negligence if P was shot by a negligent sportsman, and the bullet would not have hit P if P had been in the cab rather than on the tow-bar.´
In Jones v Livox Quarries [1952] 2 QB 608, Singleton LJ said (at 614):
`If [the plaintiff] unreasonably, or improperly, exposed himself to this particular risk, I do not think that he ought to be allowed to say that it was not a cause operating to produce the damage, even though one may think that the prohibition against riding on the vehicle was not made with that particular risk in mind.´
(emphasis added)
But here parking the loaders otherwise than in the centre of the berth only exposed the loaders to an increased risk of damage in the context of a vessel being pushed by the tugs up to the face of the berth. The collision with the berth on this occasion occurred at an anterior stage in the berthing process. The link between the exacerbated risk and the damage was therefore not sufficiently close to render one causative of the other.
We agree. The risk against which the procedures were directed arose from the exercise of berthing, by the ship moving roughly parallel towards the berth pushed by the tugs. The procedures in question had absolutely nothing to do with any risk of damage from a ship hitting the berth having misjudged the swing. The swing was a task undertaken before the ship was pushed towards the berth. Indeed, the safest place, logically, to park the coal loader to avoid damage from a collision arising from an uncontrolled or badly effected swing, such as here, is as far north along the berth as one can park the loader. But, on the evidence, that was the most dangerous place to park the coal loader during berthing when the ship is being pushed north and east by the tugs.
Also, if the Fortius had been swung without incident there would have been ample time to move the coal loader to the centre of the berth for the berthing operation.
There was nothing inconsistent in the primary judge’s approach with Astley v Austrust Limited (1999) 197 CLR 1 or March v E & MH Stramare Pty Limited (1991) 171 CLR 506. To the contrary, the common sense notions of causation referred to in those cases pick up, necessarily, the notion of the relevant risk. The plaintiff’s conduct did not expose it to any greater risk of damage to this kind of event.
Braverus sought to use two passages in Astley v Austrust Ltd to support the proposition that the primary judge erred in applying notions of causation to the analysis. In that case, Gleeson CJ, McHugh J, Gummow J and Hayne J said the following at [21] and [30], respectively.
At common law, contributory negligence consists in the failure of a plaintiff to take reasonable care for the protection for his or her own property. … A person may also be guilty of contributory negligence even though the negligence of the plaintiff did not contribute to the accident which caused the damage. This is because contributory negligence is concerned with the failure of the plaintiff to protect his or her person or property against damage and not with whether the failure contributed to the accident.
…
A finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case.
[emphasis in original]
Their Honours were not saying that a causal relationship between the conduct and the damage was not required. Plainly it is by the terms of the legislation. Rather they were saying that it is unnecessary that the conduct contribute to the accident. The plaintiff’s conduct here did not contribute to the accident which was the collision of the moving Fortius with the stationary berth and machinery there and the lack of care of the pilot and the master on board. The submission of Braverus misconceives what their Honours were saying in those passages.
It is to be conceded that one needs to be careful in the above analysis not to analyse the risk too finely; but it is plain here that the position of the loader on the berth had no bearing whatsoever on the chance of the loader being hit during a badly executed swing. Jones v Livox Quarries [1952] 2 QB 604 relied on by Braverus can be distinguished, as the primary judge did. It is plain that the event which occurred there was within the penumbra of danger to which the precautions were directed, though of a slightly different kind to those which caused the precaution to be required.
The relationship of the conduct to the nature of the risk is fundamental to causation: Chappel v Hart (1998) 195 CLR 232 at 244-5 and 289-90; Naxakis v West General Hospital (1999) 197 CLR 269 at 278-79 and 312; Chester v Afshar [2005] 1 AC 134 at [9], [21], [36], [73] and [94]-[95]; and see Glanville Williams Joint Torts and Contributory Negligence (1951) pp 366-67 discussing Smithwick v Hall & Upson Co 59 Conn 261, 21 Atl Rep 924 (1890).
Here, there was simply no common sense link between the conduct and the risk in question.
On the basis of the correctness of the primary judge’s view about contributory negligence his approach to costs cannot be, and was not, criticised.
Conclusion
For these reasons the appeals should be dismissed with costs.

I certify that the preceding two hundred and thirty-three (233) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Mansfield & Allsop .
Associate:
Dated: 12 December 2005

Counsel for the Appellant: S D Rares SC and A S Bell

Solicitor for the Appellant: Ebsworth & Ebsworth

Counsel for the First Respondent: A J Sullivan QC and G J Nell

Solicitor for the First Respondent: Blake Dawson Waldron

Counsel for the Second Respondent: J E Sexton SC and G K J Rich

Solicitor for the Second Respondent: Thynne & Macartney

Dates of Hearing: 15, 16, 17, 18 and 19 August 2005

Date of Judgment: 12 December 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1755 of 2004

BETWEEN:	BRAVERUS MARITIME INC APPELLANT
AND:	PORT KEMBLA COAL TERMINAL LTD FIRST RESPONDENT PORT KEMBLA PORT CORPORATION SECOND RESPONDENT
JUDGES:	TAMBERLIN, MANSFIELD & ALLSOP JJ
DATE OF ORDER:	12 DECEMBER 2005
WHERE MADE:	SYDNEY

JUDGES:	TAMBERLIN, MANSFIELD & ALLSOP JJ
DATE:	12 DECEMBER 2005
PLACE:	SYDNEY

Counsel for the Appellant:	S D Rares SC and A S Bell
Solicitor for the Appellant:	Ebsworth & Ebsworth
Counsel for the First Respondent:	A J Sullivan QC and G J Nell
Solicitor for the First Respondent:	Blake Dawson Waldron
Counsel for the Second Respondent:	J E Sexton SC and G K J Rich
Solicitor for the Second Respondent:	Thynne & Macartney
Dates of Hearing:	15, 16, 17, 18 and 19 August 2005
Date of Judgment:	12 December 2005