Centrestate Exports Pty Ltd v Amarantos Shipping Co Ltd - [2005] SASC 158

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
CENTRESTATE EXPORTS PTY LTD v AMARANTOS SHIPPING CO LTD
Reasons for Decision of The Honourable Justice Debelle
22 April 2005
PROCEDURE
Amendment to pleadings - application for leave to withdraw admission of liability - relevant principles - insufficient reasons to justify granting of leave - leave refused.
Navigation Act 1912 (Cth) s 410B, referred to.
Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; Amarantos Shipping Co Ltd v State of South Australia (2004) 87 SASR 528; Amarantos Shipping Co Ltd v State of South Australia & Ors (2004) 89 SASR 438; Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 268; Drabsch v Switzerland General Insurance Co Ltd (Supreme Court of NSW, 16 October 1996, unreported), applied.
Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738; Cropper v Smith (1884) 26 Ch D 700, discussed.
Lowther v Heaver (1889) 41 Ch D 248; Hamilton v Australian Telecommunications Commission [1989] 2 Qd R 18; H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694; Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128; Langdale v Danby [1982] 3 All ER 129; Clough and Rogers v Frog (1974) 48 ALJR 481; Apex Pallet Hire Pty Ltd v Brambles Holdings Ltd (Supreme Court of Victoria, 8 April 1988, unreported); State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146; Ridolfi v Rigato Farms P/L [2001] 2 Qd R 455; Workington Harbour and Dock Board v Towerfield (Owners) [1951] AC 112; ACN 007 528 207 Pty Ltd (in liq) v Bird Cameron [2003] SASC 429, considered.

CENTRESTATE EXPORTS PTY LTD v AMARANTOS SHIPPING CO LTD
[2005] SASC 158
Civil:

DEBELLE J. By an application made on 16 February 2005 the defendant Amarantos Shipping Co Ltd applied to amend its Defence. Those amendments included the withdrawal of an admission of liability. The plaintiff consents to the amendments save for the withdrawal of the admission of liability. The only issue, therefore, is whether the defendant should have leave to withdraw the admission.
The application was argued on 15 March 2005. I reserved judgment. On 8 April 2005 I announced that I refused leave to withdraw the admission for reasons to be published. These are the reasons for that ruling.
In this action the plaintiff seeks damages for the losses it sustained in consequence of a collision between the Amarantos, a Panamax bulk carrier owned by the defendant Amarantos Shipping Co Ltd (“Amarantos Shipping”), and the jetty at the port of Wallaroo. The collision occurred on 10 April 2000. At the time of the collision the Amarantos was being navigated by a pilot employed by South Australian Ports Corporation (“Ports Corp”). Amarantos Shipping has joined Ports Corp as a third party in the action. In its Defence, Amarantos Shipping has admitted that the negligence of the pilot on board the Amarantos at the time of collision caused the collision. It now seeks to withdraw that admission. I set out the history of the pleadings.
In para 6 of its original Statement of Claim the plaintiff had pleaded:
“6.The collision resulted from the negligence of the servants and/or agents of the defendant, for whom the defendant is vicariously liable.”
There followed separate particulars of that allegation. None of the particulars asserted any negligence on the part of the pilot. There is no allegation in the original Statement of Claim of any negligence on the part of the pilot save that the pilot is plainly an agent of the defendant. By virtue of s 410B of the Navigation Act, 1912 (Cth) Amarantos Shipping is vicariously liable for the negligence of the pilot: Oceanic Crest Shipping Company Ltd v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; Amarantos Shipping Co Ltd v State of South Australia (2004) 87 SASR 528 confirmed on appeal (2004) 89 SASR 438. Amarantos Shipping does not contend the contrary.
In its original Defence filed on 29 October 2001 Amarantos Shipping simply denied the averments in para 6. On 24 June 2002, Amarantos Shipping filed an amended Defence but did not amend para 6. However, it pleaded in para 12.1 that,
“… if it was otherwise liable to the plaintiff … the said loss and damage was caused by the improper navigation or management of the motor vessel Amarantos”.
As this was the defence of Amarantos Shipping the plea in para 12.1 could only be understood to mean that the loss and damage was caused by the pilot.
The parties subsequently amended their pleadings. In its amended Statement of Claim filed on 19 September 2003 the plaintiff expressly alleged negligence on the part of the pilot. The plaintiff substituted the following plea for the original para 6:
“6.     The collision resulted from the negligence of:
6.1    the defendant, and/or
6.2    the servant and/or agents of the defendant (viz for Master and the crew of the vessel), for whom the defendant is vicariously liable and/or;
6.3 the Pilot, for whose conduct acts and omissions the defendant is liable pursuant to section 410B(2) of the Navigation Act 1912 (Cth) and/or section 36 of the Harbors and Navigation Act 1993 (SA)”.
The plaintiff then set out a long list of particulars of the negligence of the defendant and of its servants and agents and of the pilot. The particulars of negligence of the pilot were in these terms:
“6.18The Pilot failed to properly gauge the speed of approach to the Jetty.
6.19The Pilot approached the Jetty at right angles, giving him no perspective from which to assess the vessel’s speed and allowing him only a minimal margin for error.
6.20The Pilot failed to approach the Jetty at an oblique angle which would have reduced the risk to the vessel.
6.21The Pilot approached the Jetty too fast.
6.22The pilot failed to inquire as to the speed of the Amarantos as it approached the Jetty.
6.23The Pilot failed to explain to the Master and the crew of the Amarantos his intentions in relation to the approach to the berth and the Jetty.”
By its amended Defence filed on 7 October 2003 Amarantos Shipping pleaded to para 6 of the Statement of Claim in these terms:
“6.Save that the defendant admits that the collision resulted from the negligence of the pilot as alleged in para 6.3 and admits the averments in paras 6.18 – 6.23 of the amended Statement of Claim, the defendant denies the averments in para 6 of the amended Statement of Claim.”
Shortly stated, Amarantos Shipping thereby admitted that the negligence of the pilot had caused the collision but denied negligence on the part of itself, the master and the crew of the Amarantos. Amarantos Shipping now applies to withdraw that admission. In its proposed amended Defence it denies paras 6.1, 6.2 and 6.3 and denies each of the particulars of the negligence of the pilot.
Mr Maitland is the solicitor for Amarantos Shipping. He drew the Defence on the advice of counsel. He has a great deal of experience in maritime law.
This action is but one of six actions in this Court which have been instituted in consequence of the collision between the Amarantos and the jetty at Wallaroo. In five of those actions, companies which have suffered loss as a result of the collision have instituted proceedings against Amarantos Shipping claiming damages for the loss each has incurred. In the sixth action, Amarantos Shipping is plaintiff and Ports Corp is defendant. In that action Amarantos Shipping seeks, among other things, to recover as damages from Ports Corp an amount equal to the damages for which it is liable to the five plaintiffs who have made claims against it. The sixth action number is action 1492 of 2002, which I will call “the main action”. All of these actions have been managed by me for the purpose, among other things, of co-ordinating them and bringing them to trial in an orderly and logical sequence.
The trial of the main action is listed for 2 May 2005. The trial of this action will follow the hearing of the main action and is listed to commence on 6 June 2005. Orders to that effect were made on 20 December 2004.
It has been convenient to order the exchange of experts’ reports on the issues of liability in the main action. The parties agreed that it was desirable to avoid duplicity of reports. For these reasons, on 10 June 2004 I made orders in the main action directing the exchange of experts’ reports and ordered that they be served on the plaintiffs in all of the other actions. I directed Amarantos Shipping to deliver its expert’s report to Ports Corp and to the plaintiffs in the other actions on or before 31 July 2004. I directed Ports Corp to deliver its expert’s report to Amarantos Shipping and to the plaintiffs in the other actions on or before 30 September 2004.
Amarantos Shipping retained Captain J E Crawford as its expert. His report was delivered to all parties on 18 August 2004.
Ports Corp retained two experts, Captain Woollacott and Captain Ward. Captain Woollacott’s report dated 28 October 2004 was served on Amarantos Shipping and the plaintiff by Ports Corp but there is no evidence of the date of service. Captain Ward’s report dated 15 December 2004 has been served on Amarantos Shipping and the plaintiff but again there is no evidence as to when it was served. It appears they were respectively delivered in late October and in late December.
Amarantos Shipping instructed another expert, Captain E H Beetham, to reply to the reports of Captain Woollacott and Captain Ward. His report was delivered to the plaintiff on 11 February 2005. The plaintiff also instructed Captain Crawford to prepare a report in answer to the reports of Captain Woollacott and Captain Ward. That report was delivered to the plaintiff’s solicitors on 15 February 2005.
As mentioned earlier the solicitor for Amarantos Shipping is Mr Maitland. He has sworn two affidavits in support of this application. In an affidavit sworn on 25 February 2005 he has exhibited all of the experts’ reports to which I have referred.
In an affidavit sworn on 16 February 2005 Mr Maitland says that until early December 2004 he was receiving his instructions directly from the P&I Club representative of Amarantos Shipping in Piraeus, Greece. In early December 2004 the P&I Club appointed solicitors in Sydney to advise it in relation to this claim. Those solicitors now instruct Mr Maitland. The solicitors in Sydney appointed new counsel to act on behalf of the plaintiff. Mr Maitland is vague about dates. He is no more specific as to when the new solicitors and counsel were instructed than saying “early December 2004”. It appears that the new solicitor and new counsel had been appointed before this action had been set down for hearing on 20 December 2004.
Mr Maitland deposes that, upon considering the pleadings and reading the experts’ reports, the solicitors and counsel in Sydney formed the view that the Defence of Amarantos Shipping should be amended. Mr Maitland does not state when that view was formed. It is not clear whether that view was formed before 20 December 2004. Certainly, on 20 December Mr Maitland did not raise any objection to the action being set down for trial and there was no hint or suggestion of any reconsideration of the terms of the Defence.
Mr Maitland deposes that in consequence of the unavailability of counsel over a large part of January 2005 and the necessity to obtain instructions from Greece, it was not possible to complete the proposed amendments until mid-February 2005. Given that Amarantos Shipping and its advisers knew or ought to have known that this action was listed for trial on 6 June 2005, the unavailability of counsel is not a satisfactory reason for the delay in proposing the amendments.
Mr Maitland seeks to call in aid a letter dated 22 October 1994 from Ms Errington, a partner in Thomson Playford the solicitors for the plaintiff. In that letter Ms Errington seeks clarification of the plea in para 6 of the Defence of Amarantos Shipping. The letter also referred to s 410B of the Navigation Act and sought to confirm that Amarantos Shipping would not be contending that it was not liable for the negligence of the pilot pursuant to that provision. The letter asked if Amarantos Shipping agreed that the only remaining issues between it and the plaintiff were:
“Assuming that our understanding of paragraph 6 of the Defence is correct (or at least our conclusion that there is no real issue as to the effect of the statutory provisions relied upon), then it seems to us that the only issues remaining between our clients are:
(a)whether our client was owed (either by your client or by the pilot for whose acts your client is liable under the statutory provisions identified in paragraph 6.3 of the Claim) a duty of care not to cause it economic loss (the ‘duty of care’ defence);
(b)assuming that there was such a duty, whether the damages claimed by our client are too remote in any event (as alleged in paragraph 11.2 of the Defence); and
(c)assuming that they are not too remote, the quantum of the damages recoverable by our client (in view of your client’s non-admission of paragraphs 8 and 9 of our client’s Amended Statement of Claim).”
I stress that Ms Errington’s letter was a long five page letter. I have distilled from it the essence of the letter. The letter concludes by asking
“Our purpose in writing this letter was both to explore with you in advance of the forthcoming directions hearing the remaining issues in these proceedings as we see them and to seek confirmation from you that:
1.We have correctly read paragraph 6 of the Defence and that there is no issue that your client is liable under the statutory provisions identified in paragraph 6.3 of the Claim for the admitted negligence of the pilot which caused the collision (subject only to those other defences raised in that pleading and which have not already been disposed of by the Full Court); and
2.The only issues as between our respective clients in these proceedings are the three that are identified in paragraphs (a) to (c) above.
Of course, if:
· our understanding as to the effect of paragraph 6 of the Defence is not correct, and
· your client intends to deny that the effect of the statutory provisions referred to in paragraph 6.3 of the Claim is as we have pleaded and that it is thereby liable for the pilot’s negligence,
then we ask that you let us know this by return or at least prior to the forthcoming directions hearing.”
The reference to the directions hearing in the passage last quoted is to a directions hearing on 26 October 2004.
Notwithstanding that Ms Errington had asked for an early answer before the directions hearing on 26 October, Mr Maitland did not respond. At the directions hearing on 26 October 2004 Mr Maitland mentioned that he had received Ms Errington’s letter. Ms Errington explained the purport of that letter. She expressed the view that in her view there was no issue of liability as between Amarantos Shipping and the plaintiff. Discussion followed. In the course of that discussion I asked Mr Maitland if his client seriously contested any duty of care on its part to the plaintiff. He replied that there was a reasonable prospect that issue could be resolved. Ms Errington then stated that it was unlikely that her client would need to be represented at the trial of the issues between Amarantos Shipping and Ports Corp. Ms Errington indicated the action was otherwise ready for trial. Apart from what was said at the directions hearing on 26 October, Mr Maitland had not made any response to Ms Errington’s letter of 22 October.
The next directions hearing was on 20 December 2004. As already mentioned, on that occasion the action was listed for trial.
In his affidavit of 16 February 2005 Mr Maitland says that, upon reading the letter from Ms Errington and the report of Captain Crawford, senior counsel formed the view that the admission contained in para 6 of the Defence should be withdrawn. There is no explanation of that assertion nor is there anything in Ms Errington’s letter which requires the admission to be withdrawn. Ms Errington has noted the admission and is properly seeking to narrow the issues to be decided. Mr Maitland does not prove when that decision was made.
In his affidavit sworn on 25 February 2005 Mr Maitland states that senior counsel for Amarantos Shipping had expressed the view that Amarantos Shipping had reasonable prospects of establishing that the pilot of the Amarantos was not negligent. Apart from the assertion that senior counsel had expressed that view, no reason is proffered as to why it is necessary for Amarantos Shipping to withdraw the admission. It is not suggested that the admission was made inadvertently or in error. In this respect it is to be emphasised that the Defence filed on 7 October 2003 was drawn by a solicitor experienced in maritime law acting in reliance upon the advice of counsel.
Thus, the only reason advanced by Amarantos Shipping for seeking to withdraw the admission is that it has engaged different counsel and has been advised that it has prospects of being able to establish that the pilot was not negligent. It is not suggested that there was any error or inadvertence on the part of solicitors or counsel for Amarantos Shipping when the Defence filed on 7 October 2003 was drawn.
The plaintiff seeks to rely on the admission of liability on the part of the pilot. It has the task of establishing whether the negligence of the pilot was the effective cause of the collision or was at least a sufficient cause to found liability in Amarantos Shipping. There are questions also whether a duty of care existed as between Amarantos Shipping and the plaintiff and issues as to the amount of damages which the plaintiff was entitled to recover.
Relevant Principles
I turn to the principles to be applied when considering whether leave should be granted to withdraw an admission. It is well settled that leave should not be permitted where prejudice is likely to be caused to the other party or where the other party has acted to its detriment in reliance on the admission: Lowther v Heaver (1889) 41 Ch D 248; Hamilton v Australian Telecommunications Commission [1989] 2 Qd R 18 at 20. In H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694 the Court of Appeal held that an admission made by counsel in the course of interlocutory proceedings could be withdrawn unless the circumstances were such as to give rise to an estoppel. As Lord Denning MR said (at 703):
“… an admission is often made by error in a pleading. It can be withdrawn if the other party has not been prejudiced, or, indeed, if any prejudice can be cured by compensation in costs.”
Factors which bear on the question of prejudice include the importance of the admission and the timing of the application to withdraw the admission. So in Hamilton v Australian Telecommunications Commission leave was granted to withdraw a relatively unimportant admission in circumstances when the parties were still engaged in interlocutory proceedings. In H Clark (Doncaster) Ltd v Wilkinson leave was granted to withdraw an admission on a central and important issue because the application to withdraw was made promptly and the parties were still engaged in pre-trial interlocutory proceedings. Leave might even be granted after judgment and a new trial ordered to correct the effect of a mistaken admission: Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128. However, where a party seeks to withdraw an admission at such a late stage that party must act promptly. Leave to withdraw an admission was not permitted after judgment where the plaintiffs had spent two years and a great deal of money enforcing the judgment: Langdale v Danby [1982] 3 All ER 129. This last case is also an instance of a party having acted to its detriment in reliance on the admission.

In Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 at 750 Rogers CJ Comm D identified two competing policies:
“One, that an admission should not be permitted easily to be withdrawn so as to make the procedure meaningless and the other that parties should not be discouraged from making admissions out of fear that once given they cannot be withdrawn.”
Those remarks must be weighed with the observations of Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 at 710 – 711:
“Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace. Order XXVIII. Rule 1, of the Rules of 1883, which follows previous legislation on the subject, says that, ‘All such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.’ It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.”
Those remarks were applied by the High Court in Clough and Rogers v Frog (1974) 48 ALJR 481 at 482.
An examination of the judgment of Rogers CJ shows that his reasons were coloured by principles relating to case management. His Honour expressed the view (at 746) that the reasons of the Court of Appeal in H Clark (Doncaster) Ltd v Wilkinson “were uttered in another age and in other circumstances”, emphasising that regard must be had not only to the interests of the parties before the Court but, also to all litigants who wish to avail themselves of the facilities of the Court. This might have the consequence that parties should be required to comply with timetables established for the preparation of actions. His Honour expressly adopted the principles in Apex Pallet Hire Pty Ltd v Brambles Holdings Ltd (Supreme Court of Victoria, 8 April 1988, unreported).
Since the decision in Coopers Brewery Ltd v Panfida Foods Ltd, the High Court has warned of the dangers of an undue emphasis upon both the principles of case management and the need to avoid disruption to the trial lists of courts with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard: State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, where the High Court allowed an appeal from an order refusing leave to amend a Defence six months before the proposed trial date. Leave had been refused because the amendments would prejudice the trial proceeding on the appointed date. The Court observed that case management is a relevant consideration but should not prevail over the injustice of preventing a party from presenting its case. Dawson, Gaudron and McHugh JJ commented on the relevance of case management in these terms (at 154):
“Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”
Later (at 155) they added:
“Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.”
The Court expressly affirmed the reasoning in Clough and Rogers v Frog and in Cropper v Smith.
I respectfully agree with Sackville J in Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 268 at [34] that having regard to the reasoning in Queensland v J L Holdings Pty Ltd, questions of case management are relevant but do not play a decisive or paramount role in determining whether or not to grant leave to a party to withdraw an admission. However, the decision does not entitle a party to raise a fresh issue in litigation at any time of its choosing, regardless of the basis on which the litigation has been conducted or the stage the proceedings have reached.
Admissions are made so that the parties only litigate issues which are bona fide in dispute: Coopers Brewery Ltd v Panfida Foods Ltd at 743; Ridolfi v Rigato Farms P/L [2001] 2 Qd R 455. The courts are concerned to get to the real issues between the parties, to what Bowen LJ in the passage quoted above from Cropper v Smith called “the real matter in controversy”. It is relevant, therefore, for the Court also to examine whether the admission sought to be withdrawn is in truth in dispute. Where the admission concerns issues of fact, it is relevant to enquire whether the admission is contrary to the fact.
The relevant factors were examined by Santow J in Drabsch v Switzerland General Insurance Co Ltd, (Supreme Court of NSW, 16 October 1996, unreported) when determining an appeal from orders made on an application to withdraw admissions in pleadings. His Honour summarised the relevant principles in these terms (the authorities cited in support of each proposition are omitted):
“1.Where a party under no apparent disability makes a clear and distinct admission which is accepted by its opponent and acted upon, for reasons of policy and the due conduct of the business of the court, an application to withdraw the admission, especially at appeal, should not be freely granted …
2.The question is one for the reviewing judge to consider in the context of each particular appeal, with the general guidelines being that the person seeking on a review to withdraw a concession made should provide some good reason why the judge should disturb what was previously common ground or conceded …
3.Where a court is satisfied that admissions have been made after consideration and advice such as from the parties’ expert and after full opportunity to consider its case and whether the admission should be made, admissions so made with deliberateness and formality would ordinarily not be permitted to be withdrawn …
4.It will usually be appropriate to grant leave to withdraw an admission where it is shown that the admission is contrary to the actual facts. Leave may also be appropriate where circumstances show that the admission was made inadvertently or without due consideration of material matters. Irrespective of whether the admission has or has not been formally made, leave may be refused if the other party has changed its position in reliance upon the admission …
5.Following Cohen v McWilliam & Anor (1995) 38 NSWLR 476, a court is not obliged to give decisive weight to court efficiency, such that a party who wishes to defend its claim is entitled to a hearing on the merits, with costs orders being available as a means of compensating the other party for any costs thereby unnecessarily incurred or not fairly visited on the other party.”
These principles were applied by Sackville J in Deangrove Pty Ltd v Commonwealth Bank of Australia. See also ACN 007 528 207 Pty Ltd (in liq) v Bird Cameron [2003] SASC 429 at [15].
The overriding consideration is the interests of justice. The Court will not lightly permit a party to withdraw an admission where the other party has acted to its detriment on the admission or is otherwise prejudiced by the withdrawal. It is plainly necessary to have regard to all relevant factors including the nature and importance of the admission, the circumstances in which the admission was made, whether the admission was made deliberately or inadvertently, the reason given for the application to withdraw, the detriment or prejudice which might be caused to the other party and the stage which the proceedings have reached, and whether the admission is contrary to the facts. The list of relevant factors affecting the Court’s decision will plainly vary from case to case.
The Experts’ Reports
The advice to withdraw the admission of liability is said to be founded on the report of Captain Crawford. In his report Captain Crawford is asked for his opinion on a number of issues. He advised
1.That the harbour facilities at Wallaroo were not suitable and adequate for safe berthing of ships the size of the Amarantos at the time of her entry on 10 April 2000.
2.That Ports Corp did not act in accordance with proper practice in determining whether the harbour facilities were suitable, adequate and safe for berthing Panamax vessels.
3.That the power and capacity of the tugs available at Wallaroo were unsuitable for Panamax vessels in general, and for the Amarantos in particular.
4.That the area of water and depth at Wallaroo were unsuitable for Panamax vessels.
5.That the instruction by Ports Corp as to the maximum draught of the Amarantos did not accord with proper practice for the berthing of the Amarantos.
6.That the Ports Corp pilotage plan used for navigation and berthing of the Amarantos did not accord with proper practice.
7.That Ports Corp failed significantly to implement appropriate plans or warnings for the berthing of the Amarantos.
8.That the steps taken by the master of the Amarantos accord with the proper practice and good seamanship at the port of Wallaroo.
9.That there was no significant failure to accord with proper practice or bad seamanship by the master of the Amarantos but for which the collision with the wharf would not have occurred.
These conclusions are expressed in Parts 31 to 39 of his report. It is apparent from his report that he believed there were a number of causes for the collision. Captain Crawford was not asked for his opinion whether the pilot had acted negligently. Captain Crawford’s report does, however, include a section entitled “Significant events which occurred during pilotage”. It is Part 28 of the report. It is in these terms:
“28.1.Following the Ports Corp pilot assuming the conduct of navigation of the Amarantos he directed courses, engine speed and direction, and tugs in a conventional manner and in accordance with his knowledge of the port and the characteristics of the assisting tugs.
28.2.The experience and background of the pilot supplied by Ports Corp South Australia to the Amarantos was described by the ATSB Report as:
‘The Ports Corp South Australia pilot on board Amarantos at the time of the incident held pilot’s licences for the South Australian ports of Wallaroo, Port Pirie, Port Giles, Thevenard, Port Lincoln, and Adelaide. He had 31 years experience as a marine pilot and had served as harbour Master at Wallaroo for 2 years, from 1976 to 1978.’
28.3.The conduct of the pilot during the navigation of the Amarantos suggested a significant lack of situational awareness and unexplained failures to plan or to react to reasonable concerns articulated by the master or to react in a timely manner to events as they developed.
28.4.The ATSB Report noted that the pilot had been taking medication but did not consider whether it had been taken as prescribed or whether other conditions of health or other medication were present with which to prevent or inhibit the palliative effects intended.
28.5.Although the singular conclusion of the (sic) John Waugh & Associates was that,
‘In the opinion of the Undersigned the cause of the accident was pilot error when the M.V. Amarantos came into contact with the wharf and the grain loading facility on the 10 April 2000.’
It should be noted that such an assertion did not take into account the port operating environment created and maintained by Ports Corp as a pilot service provider or as a port operator/manager and de facto regulator of navigation and shipping at the port.
28.6.The ATSB Report notes that the ‘Port Pirie pilots’ conducted some ‘25 to 30 per cent’ of the 52 annual berthing operations at the port of Wallaroo, and that ‘The other pilots (sic) performed between 2 and 7 movements each’ which suggests that Ports Corp did not ensure that the Adelaide based pilot of the Amarantos was appropriately trained or re-trained for entering and berthing of Panamax vessels into the port of Wallaroo.
28.7.The demeanour of the pilot throughout the conduct of pilotage appears to have led the master to believe the navigational direction of the vessel to be under proper control and following a standard Ports Corp passage plan.
28.8.Both at the time of the master/pilot exchange and during the pilotage, the pilot failed to advise the master of risks attendant on berthing a Panamax vessel at Wallaroo related to its size and displacement, risks of interaction with the seabed, the capacity of the tugs to be used, or the limited capacity of the wharf and its fender system, or of the unusual nature (for the port of Wallaroo) of the berthing task being undertaken.
28.9.Significant remarks relating to the pilot’s apparent situational unawareness are also noted by John Waugh & Associates, where:
(i)‘(It was) … stated by the master that the pilot signed the Pilot Card without read or familiarize with the ship’s engine, steering particulars’
(ii)At 0709, eleven minutes before colliding with the jetty … the master mentioned to the pilot that ‘the tug boat(s) are small for this size vessel’.
28.10.The Waugh Report, based on the vessels records and independent statements by the master and crew of the Amarantos does not record whether the master’s comments elicited any response from the pilot or whether the pilot took the masters comment into account in his subsequent manoeuvres, but
‘At a late stage, when impact with the jetty appeared likely, the master himself initiated actions to minimise or prevent contact with the jetty.’
28.11.At the time of the ship striking the berth, the pilot is recorded as making the remark ‘Sorry, Captain I am responsible is my mistake’ (sic) which, although apparently damning, is a common response of pilots immediately following an incident.
28.12.Significant remarks relating to the pilots apparent lack of situational awareness are also contained in the masters report, completed later in the day, were that,
(i)At about 0714, the master stated that,
‘I inform the pilot that vessel proceeding very close to the wharf while vessel had same direction and the tug boats manoeuvring to twist the vessel without successful.’
Notwithstanding this concern expressed by the master about six minutes before contact with the jetty, the pilot’s only reaction appears to have been to then give the engine order, ‘Slow Astern’.
(ii)The pilots detachment was also remarked by the master where,
‘After fastened the tug boats at 0646 hrs, the pilot was standing at port flying bridge side with his back to wheelhouse side giving his orders with a low voice. And some time requested to repeat again.’
(iii)When finalizing the berthing, the pilot had to be reminded by the ships crew to stop the engine after ordering ‘Dead Slow Ahead’ in order to position the vessel.
28.13.There was an apparent failure of the pilot to engage in any form of Bridge Resource Management as required of Australian pilots by AMSA Marine Notice 7/1994 or by Ports Corp own standard pilotage procedures for “Regional Ports” as published by way of the internet.” (Footnotes omitted)
Thus, although in para 28.1 Captain Crawford states that the pilot “directed courses, engine speed and direction and tugs in a conventional manner and in accordance with his knowledge of the port and the characteristics of the assisting tugs”, he later states that the pilot was unaware of the risks of berthing a Panamax vessel as large as the Amarantos at Wallaroo and had failed to communicate those risks to the ship’s Master: paras 28.8, 28.9 and 28.12. In addition, Captain Crawford concludes in para 28.13 that there was a failure of the pilot to engage in the procedures identified in that paragraph. It is not difficult to infer from this part of the report that there was negligence on the part of the pilot. Further evidence of the negligence of the pilot is to be found in Part 29 of Captain Crawford’s report and, in particular, in paras 36.4, 36.5, 36.7, 36.9, 39.13, and 40.7 to 40.10.
I accept the submission of Mr Nell that, while Captain Crawford identifies other causes of the collision, he does not conclude that the pilot was not negligent or that the collision was not caused by the negligence of the pilot. Instead, it is consistent with and indicates that negligence of the pilot was a cause.
Captain Woollacott was instructed, among other things, to express an opinion on the question, “What was the nature of the error that caused the collision?” In Part 10 of his report he deals with that issue in these terms:
“10.1The basic error which caused the collision between the “Amarantos” and the jetty at Wallaroo, on the morning of 10^th April 2000, was the failure to stop the vessel’s forward movement through the water (or headway) before the vessel’ (sic) bow hit the wharf face. If the vessel had been properly navigated, there is no reason that this collision could not have been prevented.
10.2No berth is designed to withstand a collision caused by a vessel perpendicular or nearly perpendicular to the face of the berth. The vessel’s displacement tonnage and speed at the moment of impact will determine the extent of the resulting damage and the nature of the berth’s construction, i.e. land backed or a pile supported jetty (as at Wallaroo), will determine wether (sic) the berth itself or the vessel suffers the most damage.
10.3It is intended that vessels “land” on the berth with their side parallel to or as parallel as possible to the face of the berth, with minimal lateral speed on impact and if possible no velocity either ahead or astern along the berth.
10.4Most berths are equipped with a fendering system designed to absorb mainly lateral impact and perhaps a lesser amount of shearing impact, the latter caused by vessel movement ahead or astern at the time of landing on the fenders.
10.5The vessel still had headway or forward movement at the time of impact or collision because action to arrest the headway by using the vessel’s main engine “astern” was commenced too late, bearing in mind the reduced effectiveness of the propeller caused by the relative shallowness of the water and the fact that it was only partly immersed (because of the vessel’s light draft).
10.6Ideally the vessel should have been brought to a stop in the water lying parallel to the jetty, that is having turned to starboard approximately ninety degrees from the position perpendicular to the face of the berth or with its bow pointing approximately north-west. (The vessel would then have been manoeuvred alongside the berth by the tugs – see paragraph 15.16 below.)
10.7Alternatively, the vessel could have been brought to a stop in the water, perpendicular to, but not touching, the face of the berth. (Although more time consuming than starting from a position parallel to the wharf, the vessel could have been manoeuvred alongside the berth by the tugs from this position perpendicular to the wharf.)
10.8In either case, stopping the vessel’s headway before contact with the wharf would have prevented damage to the wharf and the grain loading facility.
10.9If the vessel had been turned approximately ninety degrees to starboard, so that it was approximately parallel to the wharf, failing to stop the vessel in the water in the ideal position, that is off No. 2 North berth, would not have resulted in damage to the wharf and loading facility.
10.10As the attending tugs were relatively low powered, it would have been necessary to have the vessel virtually stopped in the water before the tugs could start to turn Amarantos to starboard (see paragraph 15.16 below.)
10.11Alternatively a brief main engine movement (a “kick”) ahead in combination with the rudder being placed hard to starboard, could have been used to start the vessel’s bow turning to starboard. Once the bow had started to turn, running the vessel’s main engine astern would have acted to maintain the swing to starboard (by transverse thrust) and to arrest the headway.
10.12Pilot Morley apparently believed there was a need to complete the turn (to parallel the jetty) as close to the jetty as possible and I believe delayed attempting to start turning the vessel until too late, so late in fact that the vessel had not started to turn, but arrived at the jetty still perpendicular to its face, as a result of the vessel’s excessive headway.”
The conclusion in para 10.12 indicates that the pilot was negligent in that he delayed too long in attempting to start turning the Amarantos so that it could moor parallel to the berth. As this is the report prepared for the pilot’s employer, the conclusion in para 10.12 is compelling.

In Part 14 of his report Captain Woollacott deals with the question whether the master of the Amarantos should have intervened to prevent the collision. In his view, the master should have intervened earlier and taken steps to override the pilot. He expresses the view that an opportunity existed to drop one or both of the anchors of the Amarantos. In para 14.23 Captain Woollacott notes that the pilot took no action to use the vessel’s anchors and the master could have intervened and done so. Finally, he concludes in para 14.27:
“14.27Pilot Morley’s failure to turn the vessel’s bow away from the wharf, reduce the vessel’s headway or use the vessel’s anchors does not relieve Captain Pitsas of his responsibility for the safety of his vessel. He should have intervened earlier than he eventually did with the main engine astern orders and more decisively, to utilise all the means available to him, to prevent his vessel colliding with the jetty.”
That paragraph clearly implies that the pilot as well as the master were negligent.
Captain Ward’s report deals with issues relating to two tugs and is not relevant to the issues of the negligence of the pilot.
Captain Beetham comments on the report of Captain Woollacott and in Part 8 is critical of it. It is implicit in the comments in Part 8 that Captain Beetham believes that a cause of the collision was the negligence of the pilot.
Captain Crawford’s report of February 2005 is very critical of the report of Captain Woollacott. However, Captain Crawford says nothing which contradicts Captain Woollacott’s criticisms of the conduct of the pilot and a number of sections clearly indicate negligence on the part of the pilot. It is sufficient to refer to paras 3.2.3, 3.24., 5.2.1, 5.2.3, 5.2.5 (c), 7.8 and 8.17.
In addition to these reports, there is a report by Mr J J Waugh, a marine surveyor dated 22 April 2000. Mr Waugh was instructed to prepare the report for the solicitors for Amarantos Shipping who, by letter dated 16 February 2005, have informed the plaintiff’s solicitors that they intend to rely on it. The statement that Amarantos Shipping will be relying on the report is not qualified in any way. Mr Waugh states in his report that, in his opinion, the cause of the collision between the Amarantos and the jetty was pilot error: see paras 1 and 10 of his report. Thus, Amarantos Shipping will be relying on his unequivocal opinion that the pilot was at fault. The report of Mr Waugh is referred to by Captain Crawford, who does not qualify it except to say that Mr Waugh was not asked to consider the question of the liability, if any, of Ports Corp. Importantly, Captain Crawford does not qualify Mr Waugh’s conclusion that the collision was caused by pilot error.
When the reports of the experts are read with Mr Waugh’s report, it is apparent that one of the causes of the collision was the negligence of the pilot. The experts’ reports prove at least the allegations in paras 6.18, 6.21, 6.22 and 6.23 of the Particulars of Negligence pleaded by the plaintiff, if not also paras 6.19 and 6.20 of those particulars.
The Relevant Factors
Mr. Hancock, who appeared for Amarantos Shipping, submitted that the reports of Captain Crawford and Captain Beetham demonstrated that “the overwhelming cause”, to use his words, of the collision was that Ports Corp had negligently permitted a Panamax carrier of the size of the Amarantos to enter the port of Wallaroo. If the pilot had erred, he said, that error was induced by the conduct of Ports Corp in permitting the Amarantos to enter the harbour. He referred to para 5.12 of Captain Beetham’s report.
Mr Hancock also relied on the decision in Workington Harbour and Dock Board v Towerfield (Owners) [1951] AC 112 and submitted that there was an issue whether Ports Corp had failed to provide a safe port. The decision in Towerfield is an example of a harbour authority being held to be liable for the breach of the duty to ascertain the condition of the harbour and report relevant information to the pilot or master of the ship. However, in the result in that case, both the harbour authority and the pilot were held to be liable. It was an instance of compulsory pilotage so that the shipowner was answerable for the loss and damage caused by the ship. Thus, while the decision in Towerfield establishes that a harbour authority might be liable in negligence and so provides a basis for contending that Ports Corp might be guilty of negligence, it is not relevant for the purpose of resolving the question whether the admission of liability should be withdrawn. It is still open to Amarantos Shipping to prove what it contends is the effective cause of the collision. That is an issue for the trial judge.
It is apparent from the examination of the reports of the experts that there is a substantial body of evidence pointing to the conclusion that the pilot was negligent. To allow Amarantos Shipping to withdraw the admission would be to allow it to litigate an issue of fact in the face of reports of those experts, including its own.
It is to be noted that in place of the earlier blanket denial, Amarantos Shipping was careful in its Defence filed on 7 October 2003 to admit negligence in the case of the pilot only. The admission was made on the advice of counsel by a solicitor experienced in maritime law acting on the advice of counsel. It is reasonable, therefore, to infer the admission was deliberately made. The significance of s 410B of the Navigation Act would be only too well known to those advising Amarantos Shipping. The admission was also consistent with the report of Mr Waugh then available to Amarantos Shipping.
No reason is advanced for seeking to withdraw the admission other than that different counsel has been retained and he believes on the basis of Captain Crawford’s report that Amarantos Shipping has prospects of being able to establish that the pilot was not negligent. There is no suggestion the original admission was either wrongly or inadvertently made. The later reports of the experts do not suggest any error in making the admission.
I accept the submissions of Mr Nell, who appeared for the plaintiff, that in those circumstances the Court should only permit the admission to be withdrawn if good cause is shown. Amarantos Shipping simply makes the bare assertion that counsel has advised the Defence should be amended or that counsel has advised that Amarantos Shipping has prospects of establishing that the pilot was not negligent. This was a deliberate admission. It is not enough for a party to say only that it has changed counsel and counsel now advises that the admission should be withdrawn, particularly where, as here, the party seeking to withdraw the admission seeks to do so in the face of reports which do not justify the withdrawal of the admission. Amarantos Shipping does not therefore make out any proper reason for permitting the withdrawal. Its explanation is entirely inadequate.
The plaintiff will clearly suffer considerable prejudice if leave is granted to withdraw the admission. From late June 2002, Amarantos Shipping has conducted its defence on the footing that the collision was caused by the negligence of the pilot. I have already pointed out how that was implicit in the amended Defence filed on 24 June 2002. What was then implicit was made explicit by the amended Defence filed by Amarantos Shipping on 7 October 2003. Since October 2003 the plaintiff has understandably believed that it was unnecessary for it to prepare a case to prove negligence on the part of the pilot. In my view it acted quite reasonably in doing so. It is content to prosecute its case on the footing that the negligence of the pilot caused the collision, that Amarantos Shipping is vicariously liable for that negligence, and that Amarantos Shipping had a duty of care towards the plaintiff. It was not until mid-February 2005, some three and a half months before the trial and some three months after Ms Errington’s letter of 22 October 2004 that notice was given of any intention to amend.
If leave is given to withdraw the admission, the plaintiff will be obliged to prepare a case to establish not only the negligence of the pilot but also of the master of the crew in order to establish liability on the part of Amarantos Shipping. That will in all likelihood require it to instruct experts as well as engage in the long and detailed task of gathering other evidence, a task made more difficult by the passage of time. In the result the trial date will have to be vacated. The assertion by counsel for Amarantos Shipping to the contrary can only be described as naïve, if not fanciful.
The fact that the trial date will have to be vacated is not irredeemably prejudicial to the plaintiff. The real prejudice to the plaintiff lies in the fact that it will be extremely difficult some five years after the collision and two years after the Defence was filed on 7 October 2003 to gather the evidence necessary to prosecute its claim.
In addition, the gathering of the evidence might require the plaintiff to amend its Particulars of Negligence. It may be necessary for it to join Ports Corp as a defendant. If the experience to date in relation to the delivery of experts’ reports is any guide, it will be some months before an expert’s report will be available to the plaintiff. It cannot be assumed that the plaintiff can seek to rely on the evidence in the main action.
For these reasons the plaintiff will, I think, be severely prejudiced if leave is granted to withdraw the admission.
Conclusion
Shortly stated, the position is this. Amarantos Shipping seeks to withdraw an admission in the face of reports of experts (including its own) which, if they do not justify the admission, preclude any basis for withdrawing it. No satisfactory reason has been advanced for seeking to withdraw what was a considered admission. The plaintiff will suffer considerable prejudice if leave to withdraw the admission is granted. These are powerful reasons for refusing the application. I do not have regard to the fact that the trial date will be vacated if this application were to be allowed.
There will be an order dismissing the application.