Raamish & Ayra Pty Ltd v City of Melbourne
[2015] VSC 277
•17 JUNE 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
ADMIRALTY LIST
S CI 2015 02545
| RAAMISH & AYRA PTY LTD & ANOR | First Plaintiff |
| and | |
| QUEEN OF MELBOURNE | Second Plaintiff |
| v | |
| THE CITY OF MELBOURNE | First Defendant |
| and | |
| SEAWORKS FOUNDATION | Second Defendant |
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JUDGE: | BELL J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 10, 11, 12, 15 and 16 JUNE 2015 |
DATE OF JUDGMENT: | 17 JUNE 2015 |
CASE MAY BE CITED AS: | Raamish & Ayra Pty Ltd v City of Melbourne |
MEDIUM NEUTRAL CITATION: | [2015] VSC 277 |
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ADMIRALTY – ship sailed from Fremantle refused temporary berth at Docklands Victoria Harbour and permanent berth at Williamstown jetty – whether managers of Docklands and Williamstown facilities promised owner of ship before sailing from Fremantle that berths would be available on arrival at Melbourne – whether failure to fulfil promises constituted misleading and deceptive conduct, unconscionable conduct and gave rise to promissory estoppel – alleged promises wholly oral, denied and not supported by contemporaneous documents – credit of witnesses not impugned - onus and standard of proof.
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiffs | Mr J Silver and Mr K Boden | Pasha Legal |
| For the first defendant | Ms F Forsyth | Hunt & Hunt |
| For the second defendant | Mr C Young | Slater & Gordon |
HIS HONOUR:
INTRODUCTION
As the trustee of the Raamish & Ayra Unit Trust, Raamish & Ayra Pty Ltd is the owner of the Queen of Melbourne. According to the evidence of the manager of the company, Farooq Qamar, the Queen of Melbourne was purchased in Norway in March 2014. Formerly a passenger and vehicle ferry under another name, she had been converted into a passenger ship for tourism and sightseeing.
The City of Melbourne operates Docklands Victoria Harbour as a committee of management appointed under the Crown Land (Reserve) Act 1978 (Vic). Docklands is a harbour, not a port, and is to be distinguished from the Port of Melbourne where most of Melbourne’s commercial shipping activity takes place.
Seaworks Foundation is a corporation that manages the Williamstown Maritime Precinct pursuant to an agreement with Parks Victoria, the Port Manager of the local port of Williamstown under the Port Management Act 1995 (Vic) and Port Management (Local Ports) Regulations 2004 (Vic). Berthing applications for the Williamstown jetty are processed by Seaworks and forwarded to Park Victoria. Berths are not authorised by Parks Victoria without a positive recommendation from Seaworks.
In September 2014, the Queen of Melbourne left Norway with a crew engaged by Mr Qamar to sail to Fremantle, Western Australia, arriving on 6 March 2015. It was a long and arduous voyage that was full of incident. Expecting to berth temporarily at Docklands and permanently at Williamstown, Mr Qamar and another crew engaged by him sailed the ship from Fremantle to Melbourne, departing on 24 April 2015 and arriving on 10 May 2015 (Mr Qamar himself disembarked earlier and travelled independently to Melbourne, arriving 5 May). When both berths were refused, he anchored the ship at Corio Bay near Geelong, where she now is. Keeping her there for the long term is not a viable proposition for a number of reasons.
On 20 May 2015, the plaintiffs sought an urgent interlocutory injunction requiring the City of Melbourne to make available a berth for the Queen of Melbourne at Docklands. The hearing of that application became a convenient vehicle for the preparation of the proceeding for early hearing and determination. Comprehensive directions were issued by Digby J and the trial has now been conducted before me.
Pursuant to the (second amended) statement of claim dated 3 June 2015, the plaintiffs contend against the City of Melbourne that, before the Queen of Melbourne departed Fremantle for Melbourne, the City of Melbourne represented to Mr Qamar that the Queen of Melbourne could berth at Docklands in the period between arrival and a suitable berth becoming available elsewhere. It contends against Seaworks that, before that departure, Seaworks represented to Mr Qamar that Seaworks could, from early to mid-May 2015, provide a suitable long-term berth for the ship. It contends that Mr Qamar sailed the Queen of Melbourne from Fremantle to Melbourne in reliance upon the representation made by Seaworks. In this judgment I have taken it to be implied in the pleaded representations that Docklands and Seaworks not just could but would provide the berthing.
The statement of claim contends that, in consequence of the refusal by the City of Melbourne to provide a temporary berth and Seaworks to provide a permanent berth for the Queen of Melbourne, they have committed actionable wrongs. In relation to the City of Melbourne, it is contended that, by failing to fulfil the representation that a temporary berth would be available, the City of Melbourne engaged in conduct that was misleading and deceptive,[1] unconscionable[2] and gave rise to the equitable principle of promissory estoppel.[3] In relation to Seaworks, it is contended that, by failing to fulfil the representation that a permanent berth would be made available, Seaworks engaged in conduct that was misleading and deceptive, unconscionable and gave rise to a promissory estoppel.
[1]See s 18(1) of the Australian Consumer Law, being schedule 2 of the Competition and Consumer Act 2010 (Cth).
[2]See ibid s 20(1).
[3]See Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 and Sidhu v Van Dyke (2014) 251 CLR 505.
In closing submissions at the end of the trial, the plaintiffs put their case primarily in equity. While maintaining the claim based on misleading and deceptive conduct, they contended that the City of Melbourne and Seaworks induced in the mind of Mr Qamar an assumption that the Queen of Melbourne could berth temporarily and permanently at the respective wharf and jetty on which assumption the plaintiffs relied to their detriment. They contended that the elements of the cause of action of equitable estoppel.
By way of relief, in the statement of claim the plaintiffs sought damages and also permanent injunctions against the City of Melbourne and Seaworks to make available berths suitable for the Queen of Melbourne at Docklands and Williamstown. In closing submissions at the end of the trial, the plaintiffs stated that they sought reliance damages of $149,540.76 representing (essentially) the cost of bringing the ship to Melbourne and also conceded that, because the evidence was that berths were not now available at Docklands and Williamstown, the court would not grant injunctions.
There was dispute between the parties about a number of matters of law. The City of Melbourne and Seaworks submitted that the plaintiffs encountered a number of insuperable legal obstacles to the claims made. However, there was no dispute about the elements of the statutory and equitable claims brought by the plaintiffs. In relation to the statutory claims, the critical question is the question of fact whether the City of Melbourne and Seaworks made the representations alleged. In relation to the equitable claim, the critical question is the question of fact whether, by making the alleged representations (and engaging in other related conduct), the City of Melbourne and Seaworks induced in the mind of Mr Qamar the assumption that he could berth the Queen of Melbourne temporarily and permanently at the respective wharf and jetty. None of the causes of action relied upon by the plaintiffs can succeed without them proving that the City of Melbourne and Seaworks made the alleged representations. The outcome of the case turns entirely on those questions of fact and it is not necessary to resolve the other issues.
On behalf of Raamish & Ayra, oral evidence was given by :
·Mr Qamar
·Stephen Tate, sea captain.
On behalf of the City of Melbourne, oral evidence was given by:
·Adam Buchholtz, Co-ordinator, Waterways Operations, Waterways Unit
·Douglas Jarvis, Waterways Manager, City Design Division.
On behalf of Seaworks, oral evidence was given by:
·Pauline Hobbs, Executive Officer, Seaworks
·Trevor Huggard, Chairman of the Board, Seaworks
Documentary evidence was also admitted into evidence, especially email correspondence between the parties.
As will be seen, the representations alleged against the City of Melbourne and Seaworks were supported in the oral evidence of Mr Qamar (and to a lesser extent Captain Tate) but were denied in the oral evidence of Mr Buchholtz and Mr Jarvis (for the City of Melbourne) and Ms Hobbs and Mr Huggard (for Seaworks). The representations alleged are wholly oral and are not supported by contemporaneous documentary evidence or by objective indicia, except the conduct of Mr Qamar (and to a lesser extent Captain Tate).
The conflict in the evidence cannot be resolved by reference to the credit of the witnesses, for that of the plaintiffs’ witnesses was not impugned by the defendants and that of the defendants’ witnesses was not successfully impugned by the plaintiffs. This is a case, like Watson v Foxman,[4] in which ‘it [was] necessary [for] the words spoken [to] be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances’. Moreover, considerations such as the ordinary fallibility of human memory can ‘pose serious difficulties of proof for a party relying upon spoken words … in the absence of some reliable contemporaneous record or other satisfactory corroboration’.[5] As the promissory estoppel claims are founded upon the same representations or promises, those observations apply equally in that context. In the present case there was no reliable contemporaneous record to support, or satisfactory corroboration of, the alleged representation or promises. On the applicable principles, I could not uphold the plaintiffs’ claims without experiencing ‘actual persuasion’[6] that the alleged representations or promises were made. Upon a consideration of the whole of the evidence, I am not so persuaded and have concluded that the plaintiffs have failed to discharge the onus or proving upon the balance of probabilities that either of the representations or promises were made. In consequence they have failed to establish that the City of Melbourne and Seaworks engaged in conduct that was misleading or deceptive or unconscionable or that gave rise to an equitable estoppel.
[4](1995) 49 NSWLR 315, 318-19 (McLelland CJ in Equity)
[5]Ibid 319.
[6]Briginshaw v Briginshaw (1938) 60 CLR 336, 361 (Dixon J).
I will begin with the representations alleged against the City of Melbourne.
CITY OF MELBOURNE
The evidence reveals that Mr Qamar had had some previous dealings with the City of Melbourne regarding Docklands. He met with Mr Buchholtz in mid-May 2014 about obtaining a berth suitable for the Queen of Melbourne which Mr Qamar had purchased in March of that year. He was told orally and by email that a berth was not available. He was invited to complete an application form, which he did. Mr Buchholtz placed the application on the waiting list, where it still is.
Mr Qamar brought the Queen of Melbourne to Australia without having arranged a berth anywhere in Melbourne, indeed anywhere in Australia. She was no more than on the waiting list for a berth at Docklands. A few days before arriving at Fremantle on 6 March 2015, a berth at that port was obtained. I accept that this berth was ongoing and the ship was not required to leave Fremantle for Melbourne, which she did on 23 April 2015. I also accept that Mr Qamar brought the ship to Melbourne in the expectation that a permanent berth was available for her there, for he is a rational man who would not have done so without considering this question.
On the evidence, before the Queen of Melbourne left Fremantle it was Mr Qamar’s belief that he had a short-term berth for the ship at Docklands when necessary and a long-term berth at Seaworks subject to the possible requirement to move from time to time. In his mind, the two facilities together represented a satisfactory basis upon which to bring the ship to Melbourne. However, the whole of the evidence reveals that there was no reasonable foundation for this belief either as to the City of Melbourne or as to Seaworks.
As to the City of Melbourne, I have already referred to the fact that Mr Buchholtz had informed Mr Qamar in May 2014 that there was no berth available for the Queen of Melbourne. In mid-March 2015, Mr Buchholtz got wind of the Queen of Melbourne being in Australian waters. She was by then berthed at Fremantle. He was concerned to ensure that Mr Qamar understood that it was still the position that no berth was available at Docklands. In a pointed email, he asked Mr Qamar whether he had an alternative berth because ‘we don’t have a berth that will take the vessel’ (email dated 10 March 2015). When Mr Qamar replied simply ‘No’, Mr Jarvis intervened to write: ‘Be very clear – we do not have a suitable berth available in the Docklands, subsequently you will need to make alternative arrangements’ (email dated 16 March 2015).
Mr Qamar had a telephone conversation with Mr Jarvis on 31 March 2015 in which the pleaded representation of the City of Melbourne is alleged to have been made. Mr Qamar has given a number of different versions of this conversation, particularly as to the place of the conversation in the sequence of events on the day concerned and the relationship between seeking a temporary berth with Docklands and a permanent berth with Seaworks. I have not found it easy to reconcile the competing versions with all of the evidence. Moreover, his evidence of the representation is very general and not connected with any particular temporary berth or period of time. Nonetheless, I accept that, on that day when speaking with Mr Jarvis by telephone, Mr Qamar formed the genuine belief that Docklands would provide a temporary berth at Docklands on the ship’s arrival. At that time, she was berthed at Fremantle. On the evidence, I could not find that Mr Qamar gave untruthful evidence when deposing to this belief. Something occurred during the conversation that gave rise to the belief in his mind.
As submitted on behalf of the City of Melbourne, Mr Jarvis gave strong evidence denying that any such promise had been made. Neither then nor later did it enter his mind that Mr Qamar was seeking a temporary berth for the Queen of Melbourne. He was seeking a permanent berth and his application for such was on the waiting list. Having regard to the size and physical parameters of the ship, no suitable berth was available. At no time did Mr Jarvis or anyone else at the City of Melbourne activate the necessary procedures for considering the allocation of a temporary berth at Docklands, including obtaining engineering reports, because no question of such a berth had been raised by Mr Qamar.
I accept this evidence. It is supported by an email that Mr Jarvis sent to Mr Qamar on 31 March 2015, stating:
Farooq, I communicate to reaffirm earlier advice. We do not have a suitable berth for the Queen of Melbourne. Subsequently you will need to make alternative arrangements.
Whilst the Waterways Unit have consistently stated this advice since the first meeting in May 2014, a recent audit of all berths under management has confirmed the position. Wharf space is either occupied, not structurally able to cope with the lateral load of such a vessel or in a development phase where it will shortly come offline. The floating infrastructure is either occupied, not structurally able to cope with the lateral load of such a vessel or restricted to short term visitation.
This email clearly and accurately sets out the state of the dealings between the City of Melbourne and Mr Qamar in relation to the berthing of the Queen of Melbourne as at the critical time. It does not mention any request for a temporary berth and tells Mr Qamar that ‘[w]e do not have a suitable berth for the Queen of Melbourne’.
The evidence establishes that, on that day, Mr Qamar informed Mr Jarvis of his plans to use the Queen of Melbourne for marine-based education, which appealed to Mr Jarvis, and not as a party ship, which Mr Qamar understood did not appeal to Mr Jarvis. Also on that day, Mr Jarvis gave Mr Qamar the contact details for Seaworks (email dated 31 March 2015). This is not inconsistent with Mr Jarvis’s evidence that no berth was available at Docklands. He was trying to assist Mr Qamar. This does not suggest he had promised to provide a temporary berth for the Queen of Melbourne if required.
Neither before departing from Fremantle nor before arriving in Melbourne did Mr Qamar seek or obtain any written or even oral confirmation of the alleged promise of a temporary berth at Docklands. Very surprisingly, there was no contact at all between Mr Qamar on the one hand and Mr Buchholtz and Mr Jarvis on the other between 31 March 2015 and 10 May 2015, a period of five weeks. The Queen of Melbourne arrived at Docklands on 10 May 2015, to the annoyance of Mr Buchholtz and Mr Jarvis. At the time the latter wrote to a colleague that the Queen of Melbourne would be ‘hit as hard as we possibly can’ because its owners had ‘blatantly disregarded consistent advice’ and Docklands had to ‘demonstrate that illegal berthing [would] not be tolerated’ (email dated 11 May 2015). On the view I have taken of the evidence, the plaintiffs have not proved that those views were unjustified or inconsistent with the position previously taken by Mr Jarvis.
I am prepared to accept that Mr Qamar’s actions in bringing the Queen of Melbourne to Melbourne were objectively consistent with his subjective belief that the City of Melbourne would make available a temporary berth at Docklands. But, in all of the circumstances, it was an unreasonable belief to hold. The email communications to which I have referred and the reactions of Mr Jarvis and Mr Buchholtz to the arrival of the ship at Docklands support their strong and consistent evidence that no promise of such a berth was ever made. I found them both to be credible and reliable witnesses and I reject the plaintiffs’ submissions to the contrary. Contrary to the closing submissions made for them, at all times Mr Buchholtz and Mr Jarvis acted towards Mr Qamar in a professional manner. The submission that there was ‘dysfunction at the Dockland’s Waterways Office’ is completely without foundation. It was not a promise or representation of a temporary berth made on behalf of the City of Melbourne that induced Mr Qamar to believe that he had such berth in hand. I am bound by the evidence to conclude that Mr Qamar must have convinced himself that such a promise or representation had been made. In this case, the plaintiffs have failed to ‘demonstrate the reasonableness of [that] understanding’.[7]
[7]Commonwealth Bank of Australia Ltd v Marsden [2012] VSC 607 (11 December 2012) [41] (Judd J).
In support of a submission that Mr Jarvis did promise Mr Qamar a temporary berth on 31 March 2015, the plaintiffs relied upon an admission allegedly made by Mr Jarvis at a meeting at Docklands on 11 March 2015 after the arrival of the Queen of Melbourne. Mr Qamar deposed that Mr Jarvis admitted making such a promise and then quickly changed the subject. Captain Tate supported this testimony.
Even on the evidence of Mr Qamar and Captain Tate, I would not be persuaded that Mr Jarvis made the admission alleged for the evidence given about the conversation was short and the details provided were scant. But Mr Jarvis answered this allegation in his evidence and provided strong and convincing testimony that he made no such admission. Mr Buchholtz, who was present, said he recalled no such admission. On the whole of the evidence, I am not satisfied that any such admission was made.
Running through the case was evidence about whether the Queen of Melbourne was a ‘Superyacht’, which it had once been recognised to be. There is evidence that Mr Qamar sought to have the Queen of Melbourne berthed at Docklands in the berths reserved for such yachts. But the evidence establishes that the ship was unsuitable to be berthed at the berths reserved for such yachts. This did not stand in the way of the ship being berthed as a large commercial vessel if a suitable berth became available, but one never did.
It is clear enough from emails passing between Mr Jarvis and Superyacht Australia dated 19 March 2015 that Mr Jarvis played a role in procuring the dis-recognition of the Queen of Melbourne as a Superyacht. However, having examined all of the evidence in relation to his role in this respect, I am persuaded that he did so simply because, in his view, it was not such a yacht and should not be so recognised by the industry organisation, in which he was involved. This had nothing to do with his advice to Mr Qamar that no berth was available for the Queen of Melbourne, which was long-standing and always based on the size and physical parameters of that ship, not on it being or not being a Superyacht.
In support of a submission that the City of Melbourne had failed to fulfil the alleged representation, it was submitted that the Queen of Melbourne could have been allowed to berth temporarily at Docklands upon its arrival on 10 May 2015 because the physical space to do so was available. In fact what occurred was that, acting on Mr Qamar’s instructions, Captain Tate directed the pilot to berth the ship at the Docklands working wharf where it remained parked without permission for a few days, attracting a fine.
There is no foundation in the evidence for the conclusion that a suitable berth was available for the Queen of Melbourne at Docklands at any material time, including on her arrival. The evidence of Mr Buchholtz and Mr Jarvis was that there was no such berth and there has been no rebutting evidence. In this connection, I reject the submission made for the plaintiffs that the Docklands discovery has been inadequate and not compliant with the pre-trial directions, about which no complaint has been made by the plaintiffs.
SEAWORKS
As put in closing submissions, the plaintiffs’ case was that, on or about 1 April 2015, Seaworks, through Ms Hobbs, represented to Mr Qamar, and induced in his mind the assumption, that there would be a berth for the Queen of Melbourne at Williamstown jetty and, subject to the needs of the Sea Shepherd fleet from time to time, she could berth there on a largely permanent basis. At that time the Queen of Melbourne was in Fremantle and Mr Qamar brought her to Melbourne in reliance upon that representation or assumption. Seaworks ‘backed out’ of this arrangement only after Ms Hobbs double-booked the berths. These submissions must be rejected.
As submitted for Seaworks, it appears to be clear that on 31 March 2015 Mr Qamar had a short telephone conversation with Ms Hobbs about the availability of a berth at Williamstown jetty during which no representations were made. Later that day, Mr Qamar sent Ms Hobbs an email giving her the basic dimensions of the Queen of Melbourne and saying that he was looking to moor the vessel in Williamstown. He asked to be advised of possibilities. Ms Hobbs immediately responded with the request to be sent a photograph of the boat. The next day ‑ 1 April 2015 – Mr Qamar visited Seaworks unannounced and spoke with Ms Hobbs. It was during this conversation that the representations pleaded against Seaworks were allegedly made.
On Mr Qamar’s evidence, he went to the Williamstown jetty on this day and found Ms Hobbs to be present. They walked up the jetty together and Mr Qamar pointed to a position where he thought the Queen of Melbourne could be berthed. He paced out the length of the position to ensure that it was sufficient. Ms Hobbs told him that this position would be fine but there was an issue with other boats coming and going, particularly the Sea Shepherd fleet. Mr Qamar told Ms Hobbs that, should it be necessary for him to make way for a ship of that fleet, he had access to temporary berthing at Docklands. Ms Hobbs told him that most of the time a berth would be available because it was rare for the three ships of the fleet to be present together. She told him that he could have a permanent berth subject to the possible need to move temporarily on such occasions. On the basis of this conversation, Mr Qamar’s evidence was that he was ‘100% sure’ that he had a permanent berth subject to the need to park temporarily at Docklands if there were issues with the Sea Shepherd fleet.
There was no independent corroboration of what was discussed between Mr Qamar and Ms Hobbs at the meeting. Mr Qamar’s evidence that a representation was made about the availability of a permanent berth was totally denied by Ms Hobbs. There is no documentary supportive evidence of any kind. There is no evidence of Mr Qamar seeking or obtaining any written or oral confirmation of the availability of the berth at Seaworks before he left Melbourne for Fremantle to join the Queen of Melbourne or before or during the greater part of the passage[8] of the ship from that port to Melbourne. Very surprisingly, there is no evidence of any contact between Mr Qamar and Ms Hobbs at all between 1 April 2015 when the meeting occurred and 8 May 2015 when Mr Qamar telephoned Ms Hobbs about getting access to the berth.
[8]The evidence was that the ship arrived on 10 May 2015 and that Mr Qamar made contact with Ms Hobbs on 8 May 2015.
Ms Hobbs’ evidence was that no representation or promise of a berth at the Williamstown jetty was made at the meeting on 1 April 2015 or in any conversation with Mr Qamar. Her evidence was expressed in a firm and convincing manner. She deposed that Mr Qamar telephoned her with a berthing inquiry on 31 March 2015 and followed up with an email to which she responded with a request for a photograph. Mr Qamar attended at Seaworks without appointment the next day and they walked on to the jetty. She told him that the Sea Shepherd fleet had all the long-term berths for bigger vessels. She showed him that the jetty was full and had no availability for the Queen of Melbourne. Mr Qamar never mentioned that he had temporary berthing at Docklands. She told him that she would make inquiries as to the likely movements of the Sea Shepherd fleet but definitely did not offer to berth the Queen of Melbourne subject to the movements of that fleet. Her evidence was that no berths were available for the Queen of Melbourne in April when the meeting occurred or in May when the ship arrived and she so advised Captain Tait when he made inquiries on behalf of Mr Qamar after that arrival.
Evidence was given by Captain Tait on behalf of the plaintiffs and Mr Huggard on behalf of Seaworks which did not take matters further because neither were present at the meeting on 1 April 2015 between Mr Qamar and Ms Hobbs. Evidence was given by Mr Qamar and Ms Hobbs about a telephone conversation or conversations they had at about the time that the Queen of Melbourne arrived in Melbourne. This evidence does not take matters further because Mr Qamar and Ms Hobbs gave differing accounts of what was discussed in the conversations and those accounts largely reflected their differing recollections the discussions that occurred at the meeting of 1 April 2015.
In support of its submissions that the representations were made, the plaintiffs contended that, as at 1 April 2015, a position was available for the Queen of Melbourne at the Williamstown jetty upon its arrival in Melbourne but it was later taken up by a double-booking. The evidence does not support this contention. I accept Ms Hobbs’ evidence that at no material time in April or May 2015 was a berth available at the jetty for the Queen of Melbourne.
As with the representations pleaded against the City of Melbourne, the court must determine whether it is actually persuaded on the balance of probabilities that the representation pleaded against Seaworks was made. On the evidence, I am not so satisfied. While it appears that Mr Qamar genuinely believed on the basis of the meeting with Ms Hobbs on 1 April 2015 that he had a permanent berth for the Queen of Melbourne at the Williamstown jetty (subject to the possible need to make way temporarily for ships of the Sea Shepherd fleet), I cannot find on the evidence that he had a reasonable basis for this belief. In the absence of independent corroboration of the representations allegedly made, I have no basis for preferring the evidence of Mr Qamar over the evidence of Ms Hobbs, who I regarded as an impressive witness.
CONCLUSION
The plaintiffs have not established that the City of Melbourne represented that a temporary berth was available for the Queen of Melbourne at Docklands and have not established on the evidence that Seaworks represented that a permanent berth was available for that ship at the Williamstown jetty (subject to the episodic needs of the Sea Shepherd fleet). On the basis of his conversations with officers of the City of Melbourne responsible for Docklands and his conversations with an officer of Seaworks responsible for the Williamstown jetty, Mr Qamar genuinely believed that such berths were available. But the evidence does not establish that Mr Qamar had a reasonable basis for these beliefs and in particular does not establish that he was promised that, when the Queen of Melbourne was brought to Melbourne, such berths were available. The evidence establishes that at no material time was a berth suitable for that ship available at either Docklands or the Williamstown jetty.
The plaintiffs application must therefore be dismissed and there will be judgment in favour of the defendants.
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