Sealink Travel Group New Zealand Ltd v Waiheke Shipping Ltd HC Auckland CIV 2008-404-4602

[2008] NZHC 2523

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-4602

BETWEEN  SEALINK TRAVEL GROUP NEW ZEALAND LTD

Plaintiff

ANDWAIHEKE SHIPPING LTD Defendant

Hearing:         12 August 2008

Appearances: Daniel Hughes for Plaintiff

Patrick McPherson and Alicia Murray for Defendant

Judgment:      22 August 2008

JUDGMENT OF HARRISON J

In accordance with R540(4) I direct that the Registrar endorse this judgment with the delivery time of

11:30 am on 22 August 2008

SOLICITORS

Kensington Swan (Auckland) for Plaintiff

Hesketh Henry (Auckland) for Defendant

SEALINK TRAVEL GROUP NZ LTD V WAIHEKE SHIPPING LTD HC AK CIV 2008-404-4602  22 August

2008

Introduction

[1]      Sealink Travel Group NZ Ltd and Waiheke Shipping Ltd (WSL) operate rival vehicular,  passenger  and  freight  ferry  services  between  Auckland  and  Waiheke Island in the Hauraki Gulf.  Sealink was originally owned by the Subritzky family, members of which have since  incorporated  WSL to  carry on  the  same  type  of business.   The Auckland Regional Transport Authority (ARTA) has licensed both companies to use facilities at Half Moon Bay Ferry Terminal, the primary Auckland hub  for  vehicular  ferry services  to  Waiheke  (most  passenger  services  are  from downtown Auckland).

[2]      The companies fell into dispute earlier this year about entitlement to use mooring poles which secure their flat bottomed vehicular ferries during layover periods on the beach at Half Moon Bay: Sealink claims exclusive rights to use the poles; WSL says they can and should be shared.   The contest has expanded into allegations of WSL’s interference with Sealink’s defined access rights to the facility. Sealink has issued this proceeding against WSL in trespass, and seeks an interim injunction pending trial restraining WSL from acting in certain ways.

[3]      Sealink must first establish a serious question for trial if an interim injunction is  to  be  granted;  namely that  its  rights  as  licensee  are  sufficient  to  support  an arguable claim in trespass against WSL.  As the effect of interlocutory relief may be permanent, I will require satisfaction to a relatively high degree.   If that threshold bridge of arguability is crossed, the balance of convenience and interests of justice will arise for consideration.

Contractual Relationships

[4]      The  Auckland  Regional  Council  has  granted  various  coastal  permits  to ARTA (as assignee from ARTNL Harbour Berths Ltd) to manage the water space in and around Half Moon Bay.  ARTNL entered into a licence agreement with Sealink on 14 February 2006 whereby the company agreed to pay a Base Annual Rental, touchdown fees and levies in exchange for defined access rights.   This instrument

replaced access rights existing under an informal arrangement.   The parties also entered into a management agreement, appointing Sealink to manage the facility and site.

[5]      Sealink’s  claim  derives  from  two  particular  provisions  of  the  licence agreement.   One is ARTA’s grant of allocated time slots for Sealink to use the facility and water space for marshalling, loading and unloading.   The other is its grant of a layover right to moor vessels at or near the wharf.

[6]      WSL started its vehicular passenger and cargo ferry services from Half Moon Bay in about November 2006.   ARTA granted WSL a licence, subject to the provisions  of  Sealink’s  licence  and  the  management  agreement,  to  operate  its services from the facility during defined time slots.   WSL pays a Base Annual Access Fee plus fees and levies.  Both companies operate under different schedules between summer and winter seasons.

[7]      The layout of the facility is simple.  The office is situated prominently on the wharf which straddles the beach line and leads to loading ramps protruding into the bay.  Vessels can load or unload on one side and one vessel can berth on either side. The mooring poles are nearby, a short distance from the beach, where barges can moor while beached overnight or while not otherwise in use in the daytime.

Sealink’s Case

[8]      Sealink alleges that WSL has been blocking Sealink’s access to the Half Moon Bay berths during its allocated time slots; preventing Sealink from exercising its layover rights to moor its vessels at the poles; threatening the safety of people and property by stopping Sealink’s access to the facility and mooring itself alongside Sealink’s vessels; and inconveniencing passengers by causing delay to Sealink’s services.  It says that WSL’s infringements have intensified recently.

[9]      Sealink’s operations manager, Mr John Monaghan, has sworn an extensive affidavit in support and one in reply.  Three other employees have sworn affidavits

in reply, confirmatory of Mr Monaghan’s allegations.   Two are by ferry masters deposing to particular events.

[10]     In summary Sealink alleges that WSL has caused its vessels and crew to use the Half Moon Bay facility outside its allocated time slots, to remain there after cessation of its rights, and to moor on the poles during the layover period.  Relevant particulars are that:

(1)Between 6 and 12 May 2008 a WSL vessel was left in the berth reserved for a Sealink vessel on two occasions, delaying arrivals by between 10 and 15 minutes.  On another occasion a WSL vessel was moored on the poles blocking Sealink’s access to the beach berth. The same vessel occupied the berth on 26 May, preventing a Sealink vessel from using the facility for scheduled maintenance;

(2)On three occasions between 12 and 23 June 2008 a WSL vessel was berthed unattended alongside a Sealink vessel, remained parked on the beach berth blocking Sealink’s access to the mooring, and remained on the beach berth preventing regular maintenance on a Sealink vessel;

(3)On  2  July  2008  a  WSL  vessel  was  moored  on  the  beach  berth preventing Sealink from undertaking maintenance on one of its vessels;

(4)In the week between 7 and 13 July 2008 WSL blocked Sealink’s access to the beach berth for a total of 109 hours.  On 15 July 2008 two of Sealink’s vessels fully laden with passengers were delayed for up to an hour while WSL blocked Sealink’s access to the ramp.

[11]     Mr Alan Moore, an independent maritime consultant, has sworn an affidavit for Sealink.   He was a director of the company, when it was known as Subritzky Shipping Line, between 1970 and 2004.  More recently, Mr Moore has been engaged

by ARTA to draw up operational procedures, protocols and penalties for the safe use of Half Moon Bay by the operators.  He says this:

15My view is that the mooring [poles] are only suited for use by two ships at one time when the [poles] separate the vessels.  When the ships are tied together they risk damage to both ships.

16The current situation cannot be sustained.  There needs to be clarity as to which operators may use the ramps, for how long and at what times.  It is unsafe for the ships and for passengers to be waiting in the river for extended periods while waiting for the ramps to be cleared.

17Certainty surrounding the use of facilities is urgently required so that the safety of the HMB facility is not compromised for the passengers or for the ships.

WSL’s Defence

[12]     WSL has filed a notice of opposition and a fully particularised statement of defence.    Mr Brett  Subritzky,  one  of  its  directors,  has  sworn  an  affidavit  in opposition.  WSL denies that Sealink has standing to sue in trespass or has exclusive possession and/or control over the Half Moon Bay site and water space.

[13]     Mr Subritzky says that in the past both companies have co-operatively used the mooring poles to berth their ships during the day and overnight; that two ships can easily moor alongside each other as has been a regular practice since 2005; but that Sealink has started to assert exclusive rights since February 2008 to use the beach and mooring poles, both during the day and during the layover period at night. Mr Subritzky says there have been very few instances when Sealink’s services were delayed by WSL vessels, and they can be explained reasonably and do not constitute a significant breach.   He says the real source of this litigation is that WSL offers ferry services to Waiheke Island at significantly lower costs than Sealink.

(1)      Serious Question

(i)       Trespass

[14]     The threshold question is whether or not Sealink has established a serious or arguable issue for trial on its claim for trespass.

[15]     The remedy of a claim for trespass to land (both counsel accept that the facility is land)  exists to protect rights of possession as well as ownership.   A licensee will have standing to sue in trespass if it has lawful possession: that is, first, the licensee has the requisite degree of custody and exclusive physical control of the land  (factual  possession)  and,  second,  the  parties  intend  that  the  licensee  shall exercise custody and control for its own benefit: see JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 per Lord Browne-Wilkinson at [39]-[43]. Whether or not an owner intended to give exclusive possession to a licensee is to be determined objectively by the terms of their contractual relationship: Street v Mountford [1985] AC 809.

[16]     Mr Daniel Hughes for Sealink submits that the licence agreement coupled with the management agreement vests Sealink with effective and actual control of the facility.  Together those two instruments provide the company with the necessary degree of standing to sue its competitor in trespass.   Mr Hughes says Sealink’s licence is more than a bare right of access, pointing to its (1) ownership of the ticketing office on the wharf; (2) enjoyment of exclusive layover and mooring rights; and (3) ability to use the facility at any time other than when a new operator is allocated a time slot by ARTA (in conjunction with Sealink).   He says a licensee may claim an order for possession against a trespasser if that is the remedy necessary to vindicate and give effect to rights of occupation granted by a licence: Manchester Airport  plc  v  Dutton  [2000] 1 QB 133 (CA); Countryside  Residential  (North Thames) Ltd v Tugwell [2000] 2 EGLR 59 (CA).

(ii)      Contract

[17]     I  agree  with  Mr  Patrick  McPherson  for  WSL;  Sealink’s  contractual relationship with ARTA provides the appropriate starting point for this inquiry.  The recitals to the licence confirm ARTA’s rights to manage the water space (the water space surrounding and occupied by the wharf outlined on a map); record ARTA’s wish to impose a new access and charging regime and terminate existing arrangements; and recognise the need ‘for an open access regime for all operators’.

[18]     Clause 4 grants Sealink access rights in these terms:

4.1       Access for Permitted Use and Terminal Office

On and from the Commencement Date, [ARTA]:

(a)  grants   to   [Sealink]   the   right,   together   with   [Sealink’s] employees, passengers, invitees, and contractors (and their employees), to access and use the HMB Site and the Waterspace for the Permitted Use, the management of traffic and the provision of visitor information services during the allocated time slots of [Sealink] on and subject to the terms and conditions of this Agreement;

(b) acknowledges that [Sealink] has its Terminal Office located on the HMB Site and has access to the Terminal Office at all times throughout the Term; and

(c)  grants  to  [Sealink],  the  right  to  use  and  secure  the  Fuel Compound & Current Facilities for the storage and use of [Sealink’s] fuel.

4.2       Access Rights

For safety reasons, and for the duration of each Allocated Time Slot of [Sealink], [ARTA] acknowledges and agrees that [Sealink] must have, and will be given, an immediate and uninterrupted right to use the  HMB  Site  and  Waterspace  for  marshalling,  loading  and unloading vehicles, passengers and cargo.

[19]     The HMB Site and Waterspace are defined as follows:

HMB Site means the area at Half Moon Bay as improved from time to time and outlined in red in the Attachment, including the Wharf, all buildings, and other structures, improvements, plant and equipment, but excluding the Terminal Office.  If in the future the boundaries and/or configuration of the site materially change, then by mutual agreement this definition may be reviewed.

Waterspace means the water space surrounding and occupied by the Wharf outlined in green on the plan set out in the Attachment.

[20]     ARTA’s obligation is as follows:

4.3       Licensor’s obligation

(a)  If another person commences to use the HMB Site and/or the Waterspace during an Allocated Time Slot, or Layover Period, of [Sealink], [ARTA] will immediately cause the other person to cease using the HMB Site and/or Waterspace.

(b) If the other person refuses all reasonable requests to vacate the

HMB Site and/or Waterspace, and [Sealink] is unable to operate

within any one or more of its allocated time slots or enjoy its Layover Rights as a result, then compensation at the rate set out in Schedule 3 will be payable by [ARTA] to [Sealink].

(c)  If [Sealink] uses the HMB Site and/or the Waterspace during another Operator’s allocated time slots and [ARTA] is required to pay compensation to that other Operator, [ARTA] may also require [Sealink] to pay, to [ARTA] compensation at the rate set out in Schedule 3.

4.4       Qualification to Access Rights

Despite clauses 4.2 and 4.3, a person may use the HMB Site during an Allocated Time Slot of the Licensee if necessary to:

(a)   avoid death or injury to a person; or

(b)   prevent serious loss of or damage to a material or valuable item of property,

[21]     By clause 5 Sealink acknowledges that ARTA may wish to grant rights to other operators to use the site and water space for the ‘permitted use’, defined as:

… the berthing of Vessels, including the embarking and disembarking of vehicles and passengers to and from such Vessels and the loading and unloading of any cargo.

[22]     By clause 5.2:

[ARTA] acknowledges that, in granting access to an Operator to any part of the HMB Site and the Waterspace, it may only do so:

(a)       for the Permitted Use;

(b)      strictly in accordance with clause 6; (c)     on terms and conditions that:

(i)        do  not  interfere  with  the  rights  and  benefits  granted  to [Sealink]   under   this   Agreement,   and   which   will   not adversely affect the ability of [Sealink] to exercise its rights, and to realise its benefits, under this Agreement; and

(ii)       are no less onerous, in terms of the obligation imposed on the Operator and the rights and benefits granted to [ARTA], than those set out in this Agreement in relation to [Sealink] and [ARTA]; and

(d)on terms and conditions that are no more favourable to the Operator than those applying at that time to [Sealink] under this Agreement (including [Sealink’s] obligation to pay the Base Annual Rental, the Touchdown Charge and the other Transport Levies set out in Schedule 2).

[23]     The regime for allocating time slots is extensively set out in clause 6.  And the licensee’s mooring rights are defined as follows:

In addition to its other rights under this Agreement, on and from the Commencement Date [Sealink] will continue to enjoy its existing rights to moor its Vessels at or near the Wharf:

(a)       overnight (Layover Rights) (ie at any time after 11 pm on any day and before 4.30 am on the following day (Layover Period)); and

(b)at such other times as will not prevent another Existing Operator from using the HMB Site or the Waterspace for the Permitted Use during that Existing Operator’s allocated time slots.

The Wharf is defined as ‘the berthing structures and ramps at Half Moon Bay’.

(iii)     Exclusive Possession

[24]     It is appropriate to pause at this juncture.  The contractual structure is clear. ARTA has reserved to itself all underlying rights of control of the facility.  It has the power to decide, throughout the term  of  the  licence agreement,  whether  or  not another operator or operators will be granted access, for what purpose and on what terms: clause 6.3.  Its obligation to Sealink in this respect is no more than to consult. It is not bound by Sealink’s views and the company has no right of refusal under an agreement that expressly contemplates concurrent, but not contemporaneous, use of the facility by other operators.

[25]     Sealink’s right to use the facility (being the Half Moon Bay site and the surrounding water space) is limited to certain defined periods and is not absolute. While the company enjoys ‘an immediate and uninterrupted right to use the facility’ during its allocated time slot (that is, for a fixed period) for marshalling, loading and unloading, that right is qualified by ARTA’s reservation of rights to other parties to use the facility in an emergency in that time slot.  Similarly Sealink is entitled to use the mooring space for limited times.

[26]     Consistently with  this  structure,  as  Mr McPherson  emphasises,  ARTA  is vested with all necessary and appropriate powers of enforcement of the licence.  It is obliged to secure and preserve intact Sealink’s rights of access.  It is bound to pay

compensation to the company at an agreed rate if it fails to prevent another party, such as WSL, from using the facility or an agreed part during Sealink’s allocated time slot or layover period, causing Sealink’s rights to be impaired.  Schedule 3 of the licence requires ARTA to compensate Sealink for any unauthorised use at $400 per five minutes after 10 minutes of unauthorised access have expired.  Its effect is analogous to a liquidated damages provision.

[27]     By this means ARTA and Sealink have settled on a mechanism for regulating rights and obligations to cover the type of unauthorised access alleged against WSL. ARTA’s duty to intervene and, if it fails, to pay agreed damages secures Sealink’s rights against loss caused by another licensee’s interference with its entitlement.  It is the remedy which ARTA and Sealink agree is necessary to vindicate and give effect to the company’s rights of occupation granted by the licence: compare Manchester Airport per Laws LJ at 150.  Its existence shows that ultimate control of the facility remains with the licensor, consistent with the parties’ intention that ARTA will assume responsibility for policing compliance by and among all licensees in accordance with their respective rights of access.

[28]     Mr Hughes raises two arguments to counter the conclusion that Sealink’s licence rights are essentially in the limited nature of access during fixed periods for a permitted use.  First, he refers to Sealink’s payment of a Base Annual Access Rental at a fixed rate.  The arrangement is thus analogous, he says, to a lease or licence to occupy, and is not merely for the purpose of access.

[29]     I disagree.  A lessee pays rental in exchange for an enforceable right in rem to exclusive possession against all parties, including the lessor (subject to reservation of a right to enter on notice), because the instrument is an absolute devise of the premises: see Street v Mountford per Lord Templeman at 816. Sealink pays what is called an annual rental but what is in law a licence fee, originally fixed at $24,000 per annum, together with touchdown charges and passenger and vehicle access levies. Its description does not alter its essential nature. The payment secures a qualified right of access to and use of certain areas for limited periods and purposes but not of exclusive possession and control of the facility: see Radaich v Smith (1959) 101 CLR 209 per Windeyer J at 222.

[30]     Second, Mr Hughes relies on the management agreement.  He says that when read  together  the two  instruments  provide  Sealink  with  effective  control  of  the facility.   The agreement appoints Sealink to manage and operate the facility on ARTA’s behalf to enable:

… the efficient, safe and reliable operation of Passenger Ferry Services to and from the Facilities by the Manager and other Passenger Ferry Service operators in accordance with its obligations under this Agreement …

Significantly, the agreement gives Sealink ‘non-exclusive access …’ to the facility to enable it to manage to perform its management function.

[31]     In accordance with its appointment, Sealink has the associated right to:

5.2.1exclude any person from engaging in any business activity on the HMB Site that has not been authorised in writing by the Manager and [ARTA];

5.2.2exclude any person or vehicle, from any part of the Facilities, that the Manager considers on reasonable grounds, to be a threat to the safety of people or property;

5.2.3exclude any person or vehicle from any part of the Facilities as the Manager considers necessary on reasonable grounds for the comfort or convenience of passengers using a Passenger Ferry Service.

[32]     Sealink originally pleaded but has since abandoned a discrete cause of action based on breach of the management agreement.   Mr Hughes says, though, that it remains relevant as part of the contractual picture.  However, Sealink is suing in its capacity as licensee, not manager.   The distinction is critical.   The management agreement does not add to or augment access rights granted under the licence.  And it does not authorise Sealink to sue in ARTA’s name to ensure enforcement.  The management agreement is irrelevant to Sealink’s case in trespass.

(iv)      Relevant Authorities

[33]     I do not think Sealink’s case is advanced by the two decisions of the English Court of Appeal on which Mr Hughes relies.   In Manchester Airport a contractor licensed by the owner to enter and occupy land for the purpose of removing trees brought a claim in trespass against protesters who entered into occupation three days

before the licence was created.  The issue which divided the Court of Appeal was whether  a  licensee,  which  had  yet  to  take  possession,  had  standing  to  evict trespassers already in occupation.   The majority (Kennedy and Laws LJJ) decided the question in the licensee’s favour principally because its right was superior to that of bare trespassers.   Chadwick LJ dissented on the ground that the terms of the licence did not confer a right to exclusive possession.  The decision does not herald a departure from settled principle, and the issue here is very different.

[34]     Mr Hughes cites this statement by Laws LJ in Manchester Airport at 150 that:

… a licensee not in occupation may claim possession against a trespasser if that is a necessary remedy to vindicate and give effect to such rights of occupation as by contract with his licensor he enjoys.

However, Sealink’s licence, as I have attempted to demonstrate, provides the remedy necessary to vindicate and give effect to the company’s rights of access and use in this case.

[35]   Tugwell was a later case of protesters occupying land earmarked for development.      Waller LJ,   for   the   Court,   distinguished   Manchester   Airport, differentiating between a licence granted for the purpose of access and a licence to occupy: at 61. The latter but not the former provides effective control of land. In Tugwell the licensee did not have a contractual right to occupy or possess with the effective control necessary to maintain a claim in trespass.  Its contractual right was limited to access alone.  The decision favours WSL’s defence.

[36]     Both counsel cited other authorities.  In Hill v Tupper (1863) 2 H&C 121 a canal company had granted the plaintiff the sole and exclusive right or liberty to put or use pleasure boats for hire on its canal.   The Court of Exchequer dismissed its application for a declaration against another party which was allegedly carrying on the same business without a licence.  Pollock CB said this: at 127:

… This grant merely operates as a licence or covenant on the part of the grantors, and is binding on them as between themselves and the grantee, but gives him no right of action in his own name for any infringement of the supposed exclusive right.

Martin B added: at 128:

This grant is perfectly valid as between the plaintiff and the canal company; but in order to support this action, the plaintiff must establish that such an estate or interest vested in him that the act of the defendant amounted to an eviction.   None of the cases cited are at all analogous to this, and some authority must be produced before we can hold that such a right can be created.  To admit the right would lead to the creation of an infinite variety of interests in land, and an indefinite increase of possible estates.  The only consequence is that, as between the plaintiff and the canal company, he has a perfect right to enjoy the advantage of the covenant or contract; and, if he has been disturbed in the enjoyment of it, he must obtain the permission of the canal company to sue in their name.

[37]     In Moore v MacMillan [1977] 2 NZLR 81, Chilwell J cited Hill v Tupper for the proposition that: at 89:

There is a well established principle that a person who is entitled to no more than a personal licence (even if it is exclusive) to enter upon land and enjoy certain privileges cannot maintain an action for trespass.

[38]     The justification for the rule in Hill v Tupper is that, while the licensee enjoyed an exclusive contractual right to use the canal for the purpose of hiring his boats, he had no exclusive right of  possession  of  the  canal  itself:  see  Clerk & Lindsell On Torts, 19th  Ed. at 19-54.  Sealink is in the same position.  Its rights as licensee are of a personal nature, as Chilwell J observed in Moore, and are limited to using the facility within defined periods and for certain purposes.  It has no exclusive

right of possession of the facility as a whole.  It is the absence of this greater interest which both in principle and in contract excludes a remedy in trespass, whether against a concurrent licensee or another party.

[39]     This conclusion is consistent with the concept of a licence.  It is: Pollock on

Torts 45 Ed at 284, cited in Winfield & Jolowicz on Torts, 16th at 13.9:

… [a] consent which, without passing any interest in the property to which it relates, merely prevents the acts for which consent is given from being wrongful.

[40]     Thus a bare licence generally affords a right in personam against the licensor only, which is expressly affirmed by the terms of Sealink’s licence.  In this respect it is notable that the injunctive relief sought by Sealink is not directed towards protecting its defined rights as licensee.   Instead it seeks an injunction prohibiting

WSL from using the facility at any time other than during the time slots allocated under its separate licence with ARTA.  That is not a remedy necessary to protect a right of exclusive possession but is designed to enforce a term of a contract to which Sealink is not privy.

[41]     In my judgment Sealink does not have the necessary standing to sue WSL in trespass and has not raised an arguable issue for trial.   The company fails at the threshold stage.  However, if that conclusion is wrong, I shall briefly consider the balance of convenience.

(2)      Balance of Convenience

[42]     Mr Hughes submits that the balance of convenience favours interim orders. He says that Sealink runs a registered public service, entitling the public to certainty of travel schedules.  Delays and uncertainty should be avoided wherever possible to ensure  that  the  community’s  needs  are  met,  particularly  of  those  who  inhabit Waiheke Island.   By specific reference to the mooring dispute, Mr Hughes says Sealink should be afforded its rights which existed before the licence to moor its vessels at the facility.  An interim order should validate that entitlement.

[43]     Furthermore, Mr Hughes submits that damages are not an appropriate remedy where Sealink seeks orders necessary to prevent interference with a public transport service.   Also, he says the damage caused to Sealink’s goodwill by running an inconsistent service cannot be recompensed by an award of damages.  And there is a real risk, while the parties continue in dispute, that a vehicle or facility will be damaged and a crew member or member of the public will be hurt.   Essentially, Mr Hughes appeals to the wider public interest and an effect on third parties as justifying the Court’s intervention in the overall interests of justice.

(i)       Irreparable Injury

[44]     I disagree, for two principal reasons.  First, as Mr McPherson emphasises, the purpose of injunctive relief is to prevent irreparable injury if an interim injunction is

not granted – that is, substantial harm which cannot adequately be compensated by damages or other relief: Attorney-General v Hallett (1847) 153 ER 1316 at 1321; American Cyanamid Co v Ethicon Ltd [1975] AC 396 at 408.

[45]     Sealink falls well short of satisfying that requirement.  Its licence provides a financial remedy against the licensor for this very contingency.  ARTA is obliged to pay liquidated damages in a fixed amount wherever Sealink is able to prove interference with its access rights during allocated time slots.  And the mechanism agreed for assessing loss, and its quantification, presumably includes an allowance for loss of goodwill.  The dispute over access to the mooring poles is of a different nature.  But the damages provision also extends to layover rights.

[46]     Mr Hughes acknowledges that Sealink should have joined ARTA as a party to this proceeding.  Sealink’s case against WSL is predicated on ARTA’s contractual failure to enforce Sealink’s rights.   The company has claimed liquidated damages from  ARTA  of  about  $1m  to  compensate  for  WSL’s  alleged  interference. Mr Hughes  advises  that  Sealink’s  decision  not  to  sue  ARTA  was  made  on commercial grounds.  While I appreciate the candid nature of his advice, a pragmatic judgment  to  forego  an  unequivocal  remedy  against  one  party  does  not  justify invoking a legal artifice against another in an attempt to satisfy the financial void.

[47]     ARTA  has  been  served  with  copies  of  these  proceedings.    Its  counsel appeared on an earlier occasion to advise that ARTA did not intend to participate actively in the hearing of Sealink’s interlocutory application.  Whatever the result of this proceeding, the underlying dispute between the licensees will continue unless ARTA intervenes.  Its solicitors’ recent correspondence conveys ARTA’s reluctance or inability to act decisively.  But as licensor ARTA has a public responsibility to take effective steps, sooner rather than later.

(ii)      Nature of Breaches

[48]     Second, I accept Mr McPherson’s submission that WSL’s alleged breaches are of a relatively minor nature.   Only two incidents relating to inference with Sealink’s allocated time slots are pleaded.  As Mr McPherson observes, there must

have been over 1000 sailings undertaken by both companies from the same facility without incident.  There is nothing to suggest that the separate dispute over use of the mooring poles requires interim protection.   In my judgment  WSL’s  alleged transgressions are insufficient in number and nature to engage a wider plea to protect the public interest.

[49]     Accordingly, the balance of convenience favours WSL.

Conclusion

[50]     I  dismiss  Sealink’s  application  for  an  interim  injunction  against  WSL. Sealink is ordered to pay WSL costs according to category 2B for one counsel together with disbursements.

[51]     The registry is to list the  proceeding  for  a  case  management  conference before an Associate Judge.  In advance Sealink must, if it intends to pursue its claim, file an amended statement of claim joining ARTA as first defendant.   This step should have been taken at the outset, and it is regrettable that ARTA has not seen fit to intervene more decisively at an earlier stage.

[52]     I wish to acknowledge the quality of argument advanced by Messrs Hughes and McPherson (with assistance from Ms Murray), both written and oral.

Rhys Harrison J