FEDERAL COURT OF AUSTRALIA

BGC (Australia) Pty Ltd v Fremantle Port Authority (No 2) [2014] FCA 1195

THE COURT ORDERS THAT:

1.    The applicant’s application for leave to administer interrogatories is dismissed.

2.    The applicant is to pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant, BGC (Australia) Pty Ltd (BGC), has applied for leave to administer nine interrogatories to be answered by the chief executive officer of the respondent, Fremantle Port Authority (the port authority). The port authority opposes the grant of that leave.

2    In BGC (Australia) Pty Ltd v Fremantle Port Authority [2014] FCA 1083 (BGC (No 1)), I outlined BGC’s claim against the port authority.

3    It is sufficient for the purpose of this application to observe that BGC’s main claim arises out of the fact that in 2010 BGC incurred demurrage charges in respect of five ships which it chartered. Each ship was delayed outside the port of Fremantle because there was no berth then available in the port to discharge the ship’s cargo. BGC alleges that the port authority acted unconscionably when in 2010 it entered into each of the five agreements with BGC for the provision of port services in relation to the ships. In support of this contention, BGC alleges that at the time of the agreements, the port authority operated a booking system which to its knowledge had historically resulted in a number of ships being delayed on arrival because of the unavailability of a berth in the port, but the port authority, nevertheless, used its unequal bargaining power to require BGC to enter into port services agreements which exempted the port authority from liability in respect of any demurrage charges that may be incurred by BGC.

4    BGC contended that leave should be given to administer the proposed interrogatories because the interrogatories sought answers which were relevant to the issue of whether the port authority required BGC to enter into the 2010 impugned agreements at a time when the port authority knew that the operation of its booking system had resulted in a number of ships being delayed outside of the port because of the unavailability of a berth in the port.

5    The proposed interrogatories seek to elicit answers regarding the following:

(a)    any discussions engaged in during the period 2006 to 2010 with directors and/or senior management of the port authority regarding delays and/or berth utilisation;

(b)    any discussions during the period 2006 to 2010 with members of the executive government in relation to delays and/or berth utilisation;

(c)    steps taken and discussions held during the period 2006 to 2011 in response to the reports of the delays in berthing which appeared in the annual reports of 2006 to 2011 of the port authority;

(d)    complaints received by the port authority during the period 2006 to 2010 regarding the delays;

(e)    discussions held during the period 2006 to 2010 in regard to the possible introduction of measures to reduce delays and/or berth utilisation, and/or berth utilisation rate; and

(f)    discussions with representatives of Data Analysis Australia Pty Ltd during the period 2006 to 2011 regarding delays and/or the issue of berth utilisation.

6    The answers sought by the proposed interrogatories seek to explore the extent of the port authority’s knowledge of the delays arising from the unavailability of berths during the period 2006 to 2011 and any measures taken by the port authority in response to those delays. The object is to show that the port authority had, notwithstanding its knowledge of delays, continued to use the impugned booking system.

7    For the same reasons, mutatis mutandis, to those which I expressed in BGC (No 1), particularly at [23]-[25] and [27], BGC’s application for leave to administer the proposed interrogatories, should be dismissed.

8    First, as I observed in BGC (No 1), the fact that the booking system used by the port authority had historically, up to the time of the agreements, led to a number of ships being delayed will not be an issue at the trial because that issue has been conceded by the port authority in its defence.

9    Secondly, the port authority has admitted that in 2010, being the time that the port authority entered into the impugned agreements, the chief executive officer of the port authority knew that a number of ships using the booking system were being delayed and he and the board, as then constituted, knew of the delays which were reported in the annual report for the financial year ended 2010.

10    Thirdly, the port authority has also admitted that the board of the port authority made no changes to the booking system in response to the historical delays resulting from the operation of the booking system.

11    It is apparent, therefore, that the question of whether at the time of entering into the port services agreements, the port authority knew of the delays to a number of ships using its booking system, will not be the subject of any serious dispute at trial. Nor is it disputed that the port authority continued to use that booking system up to the date of the agreements, notwithstanding that it had reported in the preceding four years that a number of ships using that booking system had been delayed because of the unavailability of a berth at the port.

12    Indeed, whether the port authority knew that a number of ships using its booking system were delayed cannot seriously be the subject of controversy. The fact that ships are, and have, for a number of years, been delayed in entering the port of Fremantle, is evident to the public of Perth and Fremantle, or at least to those who frequent the beachfront. By its very public nature, this phenomenon is not a matter peculiarly within the knowledge of the port authority.

13    The proposed interrogatories call for answers, therefore, which are peripheral to, and have the propensity to distract from, the matters which are properly in issue in this proceeding. The granting of leave to administer the proposed interrogatories is, therefore, likely to result in the parties incurring unnecessary costs, as well as unduly burdening the chief executive officer of the port authority, who is the proposed deponent to the interrogatories.

14    It follows that, in my view, the grant of leave to administer the proposed interrogatories will not facilitate the just resolution of this dispute in an efficient and cost effective manner as required by the overarching principle of civil litigation in this Court.

15    Further, in any event, the wide scope of the terms of the proposed interrogatories (covering as they do a five year period), their generality, and their lack of utility in contributing to the resolution of the matters properly in issue in the case, render the proposed interrogatories objectionable on the grounds of oppression.

16    Accordingly, BGC’s application is dismissed with costs.

Associate:

Dated:    7 November 2014