FREMANTLE PORT AUTHORITY -v- COSCO SHIPPING BULK (SOUTH EAST ASIA) PTE LTD [2023] WASC 95 (6 April 2023)

1. On 14 September 2022, the plaintiff filed a writ of summons to which the SOC was indorsed. An initial defence was filed by the defendant on 12 October 2022. This was overtaken by the Substituted Defence and Counterclaim dated 4 November 2022 (SDC), and later by the ASDC.
2. On 9 November 2022, the plaintiff filed a chamber summons seeking orders that this court strike-out [10] to [13] inclusive of the SDC. The orders were sought pursuant to O 20 r 19(1)(a) of the Rules of the Supreme Court 1971 (WA) (RSC) on the basis that, according to the plaintiff, the counterclaim disclosed no reasonable cause of action. As the summons is brought pursuant to O 20 r 19(1)(a) RSC, no affidavit evidence has been filed by either party. The application falls to be determined on the face of the pleading as filed.
3. The plaintiff's application was listed for hearing on 2 March 2023. The plaintiff was represented by Mr D J Pratt, with Mr B J Tomasi appearing for the defendant. The parties filed outlines of submissions ahead of the hearing. I have received the plaintiff's outline dated 8 February 2023 (Plaintiff's Submissions) and the defendant's outline dated 21 February 2023 (Defendant's Submissions). Neither party relied on any additional or extrinsic material for the purposes of the application.
4. On 3 March 2023, the defendant filed and served the ASDC, pursuant to the leave I granted at the hearing on 2 March 2023. Counsel for the defendant had apprehended, following further conferral with the plaintiff's counsel prior to the hearing, that the initially pleaded duty of care was too wide and ought be narrowed. I have proceeded on the basis that the chamber summons is now an application to strike-out the equivalent paragraphs in the latest pleading filed by the defendant, namely the ASDC. In response, and pursuant to leave granted, the plaintiff filed supplementary submissions dated 3 March 2023 (Plaintiff's Supplementary Submissions).

C. Strike-out Applications - Relevant Principles

1. The principles governing strike out applications are well established and can be briefly stated. They were summarised in Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60(d)] - [60(f)] (Smith J), and approved by the Court of Appeal in English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [56] (Murphy, Mitchell and Vaughan JJA) and in DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97 [226] (Quinlan CJ, Beech and Vaughan JJA).
2. It is well accepted that the court should proceed with caution before striking out a pleading on the ground that it does not disclose a reasonable cause of action. While the court may determine a difficult question of law on such an application, it would usually be appropriate to leave the determination of such questions for trial.[5]
3. Further, in alleging there is no reasonable cause of action, the question to be decided is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action. Rather, the correct question is whether it would be open to the party (on its pleadings) to prove facts at the trial which would constitute a cause of action.[6] In this sense, 'reasonable' means reasonable according to law. If the facts pleaded conceivably give rise to relief, then the cause of action should be held to be reasonable.[7] Moreover, the mere fact that a case appears weak is not of itself sufficient to strike out the action.[8]
4. As a general rule, a party is entitled as of right to have his or her case heard, to have the facts found and then to argue the question of law as it arises before the trial judge upon the facts as found. It is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the party, that the pleading should be struck out on the ground there is no reasonable cause of action.[9]
5. The precise form of the plaintiff's challenge is a strike-out application pursuant to O 20 r 19(1)(a) RSC, rather than an application for summary determination of the counterclaim pursuant to O 16 r 1 RSC. Nonetheless, I consider it is appropriate that I proceed by having regard to the broad principles expressed in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24] (French CJ and Gummow J). This is because the real effect of the plaintiff's application, if successful, would be to summarily determine whether the pleaded duty can be sustained as a matter of law.
6. The principles in Spencer were recently summarised by the Court of Appeal of Western Australia in Seiffert v Prisoners Review Board [2023] WASCA 15 [177] ‑ [179] (Buss P, Mazza and Beech JJA):

[177] The caution with which the power to summarily determine a civil action is to be exercised is well established. As French CJ and Gummow J observed in Spencer v Commonwealth of Australia, that is so whether summary disposition is sought on the basis that the pleadings failed to disclose a reasonable cause of action, or on the basis that the action is frivolous or vexatious or an abuse of process, or in a summary judgment application supported by evidence. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary disposal of proceedings should be ordered.

[178] The test stated in General Steel Industries Inc v Commissioner for Railways (NSW) for when it is appropriate to summarily determine proceedings, namely that the case is 'so clearly untenable that it cannot possibly succeed', involves demonstrating certainty as to the outcome of any trial: Spencer v Commonwealth.

[179] Where the law is not yet settled, a court should be careful not to risk stifling the development of the law by summarily disposing of an action where there is a reasonable possibility that, as the law develops, it will be found that a cause of action and remedy lies. Even where success depends upon propositions of law apparently precluded by existing authority below the High Court, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. (emphasis added and footnotes omitted)

1. Where constructional questions are raised in the context of a summary dismissal or strike-out application, the court may exercise its discretion to refrain from determining the issue in an interlocutory setting, particularly where the question is of some complexity, and it is being considered in an evidential vacuum without a full consideration of the context and purpose of the instrument under review.
2. Such an approach was adopted in relation to a difficult question of contractual construction, in the context of a strike-out and summary judgment application, in BGC Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2019] WASC 248 [77] (Smith J). That decision was upheld on appeal in NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2019] WASC 248 [94] (Murphy JA) and [130] ‑ [132] (Beech and Vaughan JJA).
3. It is open to the court to form the view in such circumstances that it is inappropriate to resolve the construction question finally on an interlocutory application.

1. To put the strike-out application in some context, I should first summarise the plaintiff's claim.[10] As already noted, the plaintiff is the statutory authority, established under the PAA having ownership and management of the Port of Fremantle. The port is pleaded to include the Jetty and associated plant, machinery, equipment and infrastructure (SOC [1]).
2. On 19 April 2020, the Vessel owned by the defendant was moored at the Jetty. At the time, it was being loaded with bauxite via a loader (SOC [2.2] and [3]). It is alleged the Vessel moved adrift of the Jetty and during the attempts by the crew to reposition the Vessel, part of the Vessel impacted the loader (SOC [4] and [5]).[11]
3. As a consequence, it is alleged the loader and its boom sustained damage (beyond economic repair) and the plaintiff suffered loss including through the impact on the commercial operations of the Jetty (SOC [6]).
4. Pursuant to s 113(2), the plaintiff alleges the defendant is answerable in damages for the whole of the damage sustained to the loader and the boom. Further, and pursuant to s 113(6), the plaintiff alleges that the damages recoverable are to be determined on the basis of the actual cost incurred in replacing the loader and the boom, and any economic loss suffered by the plaintiff as a result of that damage.

1. By the terms of the ASDC (at [3]), the defendant alleges that the Vessel was moored pursuant to the direction of the plaintiff in compliance with 'a ship Mooring Plan and Loader positions' dated 17 April 2020 (Mooring Plan).
2. Turning to the events on 19 April 2020, the defendant denies (ASDC [4]) that the Vessel was ever adrift - it alleges the Vessel was at all times 'fast to KBB2'. The defendant next alleges a course of events which took place during the early hours of that day, by which it is said the crew of the Vessel requested a 'run off of the loading of bauxite into hatch 5 of the Vessel due to inclement weather' (ASDC [5(b)(ii)]). The defendant asserts that the Vessel moved a distance of 1.5 m whilst still attached to the Jetty, which motion was due to a surge at KBB2 from strong winds reaching 30 knots, and as a result of the Mooring Plan (ASDC [5(b)(iii)]). In attempting to bring the Vessel safely back alongside the Jetty, the defendant alleges the Vessel moved slightly and made contact with the end of the boom.
3. The defendant then alleges that the loader and boom had pre‑existing damage and deterioration and otherwise denies the extent of the damage alleged by the plaintiff (at ASDC [6]).
4. The portion of the pleading which then follows is the aspect which has motivated the plaintiff to bring this application. At ASDC [10] to [14], the defendant pleads out a counterclaim which is reflexive in nature. In essence, the counterclaim against the plaintiff proceeds on the basis that, if the defendant is liable to the plaintiff as alleged, then such liability arose as a result of the negligence of the plaintiff and the plaintiff is liable to the owner of the Vessel in an amount equal to the amount of the Vessel‑owner's liability to the plaintiff. The relevant terms of the pleading are as follows:

[11] In the premises as pleaded, any or such sum as the Defendant may be found liable to pay the Plaintiff as claimed by the Plaintiff according to the Statement of Claim shall be loss and damage suffered by the Defendant caused by the negligence of the Plaintiff at common law or under the Occupier's Liability Act 1985 (WA) and, accordingly, the Defendant counterclaims against the Plaintiff for any and all such loss and damage.

[12] In the premises pleaded, the Plaintiff, as the owner, manager, occupier and controller of the Port, had a duty of care to the Defendant to ensure that the Defendant was not exposed to liability under section 113 of the Port Authorities Act 1999 (WA) by reason of the Plaintiff's acts or omissions, as a user of the Port, to take reasonable care to ensure that the Defendant did not suffer loss and damage by reason of any foreseeable risk of harm to the Defendant or the Vessel in the use of the Port or by reason of any dangers to the Defendant the Vessel due to the state of the Port or anything done or omitted to be done in respect of the Port by the Defendant.[12]

(A) Various provisions of the Port Authorities Act 1999 (WA) as to the establishment, position, powers and responsibilities of the Plaintiff in relation to the Port.

(B) Occupier's Liability Act 1985 (WA), section 5(1).

(C) KBB2 extends into Cockburn Sound in a westerly direction and has a fixed loading boom system fed by a loading conveyor. The loading system and boom requires the visiting vessels and the Vessel in this case to warp along the berth to which the vessel is moored.

(D) The Vessel was directed by the Plaintiff to moor at KBB2 in accordance with the Mooring Plan showing (inter alia) where the vessel mooring lines were to be attached to KBB2 mooring bollards so as to secure the vessel for its intended loading plan and warping and in the expected weather and sea conditions and which would not require any changes to the Mooring Plan. Warping of the vessel was not permitted without the approval of the operation by the Plaintiff's mooring gang.

(E) The Vessel's crew were not permitted shoreside and could only communicate with shoreside personnel of the Plaintiff by telephone as directed by the Plaintiff due to COVID-19 restrictions.

(F) The Mooring Plan directed that the mooring lines were only to be repositioned by the Plaintiff's mooring gang.

Further particulars may be provided prior to trial.

[13] In the premises pleaded, the Plaintiff breached its duty of care to the Defendant.

PARTICULARS OF BREACH OF DUTY OF CARE[13]

(A) Paragraph 5 of the Amended Defence and the particulars thereto.

(B) The Plaintiff failed to have regard or to monitor or attend to, or to have sufficient regard or to sufficiently monitor or attend to, the mooring of the Vessel at KBB2 and to take care or to take reasonable care for the safe and secure mooring of the Vessel at KBB2, by way of the Mooring Plan or otherwise in the circumstances.

(C) The Plaintiff failed to have regard or to monitor or attend to, or to have sufficient regard or to sufficiently monitor or attend to, the loading of the Vessel and the operation of the AL04 loader and the boom and to take care or to take reasonable care for the safe and secure loading of the Vessel and operation of the AL04 loader and the boom, including the safety of the AL04 loader and the boom, in the circumstances.

(D) The Plaintiff failed to have regard or to monitor or attend to, or to have sufficient regard or to sufficiently monitor or attend to, the maintenance and preservation of the AL04 loader and the boom as to damage, deterioration and defects and to take care or to take reasonable care to maintain and preserve the AL04 loader and the boom as to damage, deterioration and defects.

Further particulars may be provided prior to trial.

1. The defendant claims by way of counterclaim against the plaintiff damages, interest and costs (ASDC [14]). Paragraph 14 of the pleading is not challenged by the plaintiff but if the substantive paragraphs of the counterclaim fall away, then so too will that paragraph.
2. I turn next to outline the statutory framework which provides the background for the present contest between the parties.

1. Prior to June 1999, the statutory framework which existed in relation to port authorities in Western Australia was something of a patchwork quilt. Each port authority was established under its own enabling statute.[14] Pursuant to each of those enabling statutes, regulations were prescribed specifically for each port authority.[15]
2. In June 1999, the PAA was assented to. The long title describes the statute as 'An Act about port authorities, their functions, the areas that they are to control and manage, the way in which they are to operate, and related matters'. Thereafter, the Port Authority Regulations 2001 (WA) came into force. Each of the former port-specific legislative instruments were repealed, and matters concerning the establishment, administration, governance, powers and functions, accountability, financial management, navigation and regulation of port authorities were all brought together under one Act and one set of Regulations.

1. As originally enacted, the PAA established eight separate port authorities. More recently, those eight port authorities have been consolidated into five authorities. The port authorities are, in effect, government trading enterprises which are required to act in accordance with prudent commercial principles, and endeavour to make profits (s 34). Port authorities are not to be regarded as agents of the Crown and they do not have the status, immunities and privileges of the Crown (s 5).
2. Port authorities each have a board of directors who are appointed by the Minister responsible for administering the Act (s 7(1)). The board functions as the governing body of the authority (s 8(1)). The board's role is to perform the functions, determine the policies, and control the affairs of the port authority (s 8(2)).
3. The Minister may give directions to a port authority with respect to the performance of its functions, either generally or in relation to particular matters (s 72(1)). The board and the Minister are to consult together in relation to any aspect of the operations of the port authority (s 74).

1. The functions of port authorities are delineated in ss 30(1) and 30(2), and include:

(a) to facilitate trade within and through the port and plan for future growth and development of the port;
>
> (b) to undertake or arrange for activities that will encourage and facilitate the development of trade and commerce generally for the economic benefit of the State through the use of the port and related facilities;
>
> (c) to control business and other activities in the port or in connection with the operation of the port;
>
> (d) to be responsible for the safe and efficient operation of the port (this is one of the provisions emphasised by the defendant for the purposes of this application);
>
> (e) to be responsible for maintaining port property;
>
> (f) to be responsible for port security;
>
> (g) to do things that the board determines to be conducive or incidental to the performance of a function referred to above; and
>
> (h) to use or exploit its fixed assets for profit so long as the proper performance of its functions is not affected.

2. The fact that a port authority has a function given to it by the PAA or any other written law does not impose a duty on it to do any particular thing (s 31(1)). Subject to the PAA and any direction given by the Minister, the port authority has a discretion as to how and when it performs its function (s 31(1)). Subject to any direction given by the Minister, a port authority has exclusive control of the port (s 32).
3. Subject to s 34A (which imposes a duty to comply with State budgetary requirements), a port authority is to perform its functions in accordance with its strategic development plan and its statement of corporate intent (s 33).[16]
4. A port authority has all the powers it needs to perform its functions under the PAA or any other written law (s 35(1)). A port authority may, for the purpose of performing a function (s 35(2)):

(a) acquire, hold and dispose of real or personal property;
>
> (b) manage, improve and develop real or personal property vested in it or acquired by it or arrange for property to be managed, improved or developed;
>
> (c) carry out port works or arrange for port works to be carried out;
>
> (d) provide, manage and operate port facilities or arrange for port facilities to be provided, managed and operated;
>
> (e) provide port services or arrange for port services to be provided; and
>
> (f) enter into any contract or arrangement including a contract or arrangement with any person for the performance of the function by that person on behalf of the port authority.

5. Division 2 pt 4 of the PAA is headed 'Protection of people dealing with port authorities'. Section 45(1) provides that a person dealing with a port authority is entitled to make the assumptions mentioned in s 47. Those assumptions include that the PAA has been complied with, that a person who is held out by a port authority to be a director, CEO, an executive officer, a member or staff or an agent of a particular kind has been properly appointed and has authority to perform the functions customarily performed by such persons (ss 47(a) and 47(b)). There are further assumptions which relate to the authority of members of staff or agents, as to sealed documents, and that directors, CEOs, members of staff and agents have properly performed their duties to the port authority (ss 47(c), 47(d), 47(e) and 47(f)).

1. Part 7 of the PAA is a centrally important regime within the legislation for the purposes of the plaintiff's application to strike-out the counterclaim. Part 7 is headed 'Navigation and port matters'. There are seven divisions therein.[17] I have identified below several of the provisions which are relevant to the present application, and set out the full text of some of the provisions in Attachment A to these reasons.
2. In ss 100 and 111, specific immunities are provided with respect to the provision of pilotage services and the conduct of harbour masters.
3. Section 100 provides that both the State and the port authority are not liable for any loss or damage resulting from either an act or omission by a port authority, a harbour master or a member of staff of a port authority in connection with the provision of pilotage services, or an act or omission by a person approved as a pilot by a port authority in the conduct or navigation of a vessel of which the person is the pilot.
4. Section 111 provides that neither the State, the port authority, the harbour master, nor any person acting under the direction of the harbour master, is liable for any loss or damage occasioned by complying with a direction under ss 104 or 105 given in good faith, or the exercise in good faith of the powers in ss 107, 109 or 110(2).
5. Section 113 creates a statutory damages claim in favour of a port authority as against the owner of a vessel or other prescribed thing which has damaged any port facility or other property of a port authority. This is the provision pursuant to which the plaintiff in the present case mounts its claim against the defendant.
6. Section 114(2) requires a port authority to have, maintain, and implement a marine safety plan for its port. A marine safety plan is a plan prepared by a port authority and approved by the Minister setting out the arrangements for marine safety at the port. These plans are monitored by the Minister. The defendant relies on this provision as part of its argument on this application.
7. Within div 7 there are five separate immunity provisions which extend protection to port authorities: ss 114B (immunity from liability for damage to vessels), 114C (immunity from liability for damaged goods), 114D (immunity from liability for delay in delivery of goods), 114EA (immunity from liability of acts or omissions of port users) and 114E (immunity from liability for certain events and actions). Division 7 (and each of the provisions just mentioned, other than s 114EA) were inserted into the PAA by amendment in 2003.[18]
8. Section 114B(1) provides that a port authority is not liable for any loss or damage caused to a vessel in its port. Without limiting this provision, s 114B(2) provides greater specificity as to the circumstances in which the immunity operates. It provides that a port authority is not liable for any loss or damage caused to a vessel in its port that results from either:

(a) the master of the vessel complying with a direction given in good faith or a thing done or omitted to be done in good faith in respect of the vessel, by the harbour master or a member of the staff of the port authority (s 114B(2)(a)); or
>
> (b) a defect in a mooring, anchorage or berth, or anything else, provided by the port authority (s 114B(2)(b)).

9. Section 114C provides that a port authority is not liable for any loss or damage caused to any goods that a person (other than the port authority) either loads on to or unloads from a vessel at the port, or stores at the port.
10. Section 114D provides that a port authority is not liable for any loss caused by or relating to a delay in the delivery of any goods loaded on to or unloaded from a vessel at the port.
11. Section 114E appears to operate as a form of statutory force majeure protection for a port authority. It provides that a port authority is not liable for any loss or damage resulting from an event outside the control of the port authority, including an act of God, an act of war, the unlawful seizure or control of any people or any vessels, vehicles or other property, and any industrial disputes of any kind, including strikes, lockouts, stoppages or restraints of labour (whether partial or general) from any cause.
12. The 2003 Amending Act which introduced the above immunity provisions was accompanied by an Explanatory Memorandum (the 2003 EM). The 2003 EM includes brief statements in relation to each of the immunity provisions. As will be seen, the imperative of protecting the State (and its taxpayers) from liability, together with the intimation that claims could be directed to other, privately-owned entities with recourse to insurance, emerge as themes in these statements. The relevant passages are extracted below:[19]

(a) in relation to s 114B - that port authorities 'are wholly government owned' and 'provide essential infrastructure and services for the benefit of the W.A community'. The port authorities 'therefore need to be indemnified to protect the government and taxpayers from associated liability. Users of port facilities however, will still have recourse to insurance for any loss incurred';
>
> (b) in relation to s 114C - that port authorities 'need to limit the liability of the government and taxpayers, particularly in relation to the handling of goods, which is a service provided by private enterprise stevedores, who should be the primary target of any claims for compensation and who have recourse to insurance';
>
> (c) in relation to s 114D - that port authorities 'need to limit the liability the government and taxpayers, particularly in relation to delays in the handling of goods, which is a service provided by private enterprise stevedores, who should be the primary target of any claims for compensation and who have recourse to insurance'; and
>
> (d) in relation to s 114E - this immunity is 'necessary to limit taxpayer liability through government ownership of port authorities. The immunity relates to matters excluded by most contracts of insurance'.

13. In 2014, s 114EA(1) was introduced into the legislation.[20] It provides that a port authority is not liable for any loss or damage resulting from an act or omission of a person who is, or is acting on behalf of, a user of its port. This provision does not affect any liability a port authority might have for breach of contract (s 114EA(2)).
14. The Explanatory Memorandum to the 2014 Amending Act (the 2014 EM), which introduced s 114EA, includes the following statement in relation to that provision:

... the new provision will protect port authorities against any loss or damage caused by port users or their agents. This reform reduces the exposure of port authorities to the actions of port users, for example through the contamination of woodchip stockpiles from other export products such as coal dust. However, subsection (2) specifically provides that a port authority will remain liable for any breach of contract.

1. The Plaintiff's Submissions explain the principles applicable to this application and outline the gravamen of the plaintiff's attack. The plaintiff submits that a duty of care cannot arise where it would be inconsistent or incompatible with the statutory powers or duties imposed on a statutory authority or would be incoherent with the statutory framework. The plaintiff cites three High Court authorities in support of this proposition, namely Electricity Network Corporation v Herridge Parties [2022] HCA 37 [27] (Keifel CJ, Gageler, Gordon, Edelman and Steward JJ); Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 [60] ‑ [62] (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ); and Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498 [34] (French CJ, Crennan and Keifel JJ).
2. The plaintiff next submits that the PAA contains a statutory regime which allocates particular risks of harm to port users and vessel owners and protects port authorities (such as the plaintiff) from various liabilities. The plaintiff refers to ss 113(1), 113(2), 114B, 114C, 114D and 114E in this regard.[21]
3. The plaintiff asserts that s 113 imposes a regime of strict liability on vessel owners, such that a vessel‑owner is liable for damage to the property of a port authority by a vessel without the need for proof of any fault on the part of the vessel‑owner.[22] Further, the plaintiff observes that port authorities are protected by ss 114B to 114E from liability in many circumstances, including liability for any loss or damage caused to a vessel in its port, including where such loss or damage results from a defect in the mooring, anchorage, berth or anything else provided by a port authority. The plaintiff draws attention to s 114B in this regard.[23]
4. The plaintiff acknowledges that whilst the existence of a statutory allocation of risk is not necessarily inconsistent with the imposition of a common law duty of care, any such duty must be able to operate consistently and coherently with the statutory regime.[24] The plaintiff submits that the duty of care alleged by the defendant is neither consistent nor coherent with the statutory regime under the PAA. On its face, there is some force in the plaintiff's submission.
5. In responding to the broad duty of care as originally articulated by the defendant, the plaintiff submitted that an asserted duty of care of that width was inconsistent with the protections afforded to the plaintiff under the PAA. The plaintiff submits that it cannot owe the Vessel‑owner a duty to use reasonable care to protect it against any loss or damage by reason of any foreseeable risk of harm because such a duty is inconsistent with the statutory allocation of risks. For instance, as explained by the plaintiff, it cannot owe a common law duty to exercise reasonable care to protect against a risk of harm (physical damage) to the Vessel because s 114B protects the plaintiff from liability for damage to any vessel in its port. Consequently, the asserted duty (in its original form) is inconsistent with the statutory regime under the PAA, so the plaintiff submits.[25]
6. Addressing the newly amended, and seemingly narrower duty of care, the plaintiff maintains that the duty remains inconsistent with the statutory allocations of risk under the PAA. Two reasons for this conclusion are presented by the plaintiff.
7. First, the plaintiff submits it cannot owe a duty to protect against any risk of liability under s 113 however arising because that conflicts with the immunity from liability enjoyed by the port authority for any act or omission of a person who is acting on behalf of a user of its port: s 114EA(1). In the circumstances of this case, the plaintiff says this would include the plaintiff's mooring gang, the operators of the ship loader and the persons who prepared and provided the Mooring Plan, all of whom were acting on behalf of the defendant as a user of the Port.[26]
8. Second, the plaintiff submits that the pleaded duty is inconsistent with the imposition of strict liability on the defendant vessel‑owner under s 113(2) ('whether or not that damage is caused through a person's wilful or negligent act or omission'). These words are broad enough, according to the plaintiff, to extend to the acts or omissions of the plaintiff's mooring gang, ship loader operators and the person(s) responsible for the preparation of the Mooring Plan.[27]

1. In support of the viability of its pleaded duty of care, and in opposition to the strike-out application, the defendant correctly submits that the actions of a public authority may give rise to a duty of care. Further, it is submitted that there must be clear and unambiguous language authorising a statutory body to engage in what otherwise would be tortious conduct, referring to Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 436.[28] These are both uncontroversial propositions.
2. The defendant accepts that the duty of care it pleads is novel, in the sense that it is not a relationship which has been juridically established as giving rise to such a duty.[29] In such a circumstance, the defendant submits that the court must undertake the 'multifaceted inquiry' or 'salient features' analysis which focuses on the factors which militate for and against the imposition of a duty of care.[30] In the present case, the defendant accepts that the statutory context is one of, if not the most important, salient features of the alleged duty. In this regard, the defendant also accepts that it is critical to ensure that the pleaded duty can be shown to be coherent with the statutory scheme.[31]
3. It is at this point in the argument where, putting it broadly, the plaintiff and the defendant part ways. The defendant submits, antithetically to the plaintiff's present application, that the pleaded duty is 'not only consistent with the statutory scheme, but a premise of it'.[32]
4. The defendant contends that, upon proper analysis of the statutory framework, an application of the principles expressed in Herridge allows for the conclusion that the pleaded duty is consistent with the statutory scheme.[33] In developing this argument, the defendant observes that facts alleged in its pleading must be accepted as true. In this regard, the defendant notes that it is alleged that the plaintiff was, at the time of the incident, exercising powers in the performance of its statutory functions pursuant to ss 30, 35(2)(d) and 35(2)(e). This includes providing, managing, and operating port facilities, and providing port services. Further, the facilities and services which were provided included the provision, management and operation of the loader and boom, and the loading of the Vessel (ss 3(1) and 35(9)).[34]
5. Next, the defendant accepts that its liability to the plaintiff for damage caused by contact between the Vessel and the loader 'may be accepted as a consequence of s 113 of the Act, and is so whether the damage was caused by a third party's wilful or negligent act or omission'.[35] However, the defendant maintains that s 113 does not preclude the defendant claiming the loss it suffers as a result of its liability under that provision from a person whose negligence was the cause of the contact between the Vessel and the loader.[36] The defendant submits that it cannot be the case that the plaintiff statutory authority is authorised by s 113 to perform its functions negligently without prospective liability to those whom it causes loss and damage.[37]
6. The defendant further submits that the duty of care which it pleads, being a duty owed by the plaintiff to owners of vessels to ensure that they are not exposed to liability under s 113 by the negligence of the plaintiff, is consistent with the statutory scheme. This is because, the defendant asserts, the plaintiff (and all port authorities) are obliged to provide safe port facilities to users of the port (s 30(1)(d)).[38] Building on this, the defendant asserts that s 113 cannot be construed as a provision which authorises a port authority to engage in tortious conduct, relying on Coco.
7. At the hearing, counsel for the defendant enlarged on the foregoing arguments, and articulated a particular construction (and purpose) of s 113 upon which I should comment.[39] Counsel submitted that the evident purpose of s 113 was not to immunise a port authority from liability in negligence or under the Occupiers' Liability Act 1985 (WA). Rather, the provision must be understood in its context as a mechanism to enforce or secure payment against a vessel's owner.
8. The defendant emphasises (and implicitly invites the court to infer) that many of the cargo vessels which utilise ports in this State are not registered in Australia. In the absence of a strict liability regime, such as is found in s 113, vessels which damage port infrastructure might simply depart from the port area or jurisdiction, leaving the port authority with no convenient recourse for the damages which it has suffered. Viewed in this context, s 113 essentially allows a port authority to seek immediate payment (on the basis of the strict liability statutory cause of action) by way of recompense for any damage suffered, prior to permitting the vessel to leave the port. Presumably the statutory damages claim might be used to ground urgent enforcement action, including proceedings in rem. The regime ensures the port authority has security for the damage inflicted on its infrastructure, where otherwise there may have been no assets in the jurisdiction against which the port authority could enforce its entitlements.
9. Counsel for the defendant submitted that the text of s 113 (without recourse to any extrinsic material) was sufficient to enable the court to draw the foregoing purpose. Further, counsel submits that s 113, when properly understood as just explained, does not licence negligence on the part of a port authority. The only provisions of the PAA to which counsel referred which, in my view, provide some support for this argument are ss 30(1)(d) and 114(2). As earlier noted, s 30(1)(d) stipulates, as one of the functions of a port authority, the function to be 'responsible for the safe and efficient operation of the port'. Section 114(2) requires a port authority to have, maintain and implement a marine safety plan for its port. These provisions, according to the defendant, demonstrate an evident purpose of the legislative framework, to impose duties on the port to maintain safety.
10. Dealing then with the immunity provisions, counsel for the defendant submitted that the legislature has identified specific scenarios in which the immunities would operate. As port authorities are commercial operators, the giving of statutory immunities to such entities is something the legislature would do after careful consideration, given the consequences for people dealing with such entities on a commercial basis. It may be inferred, according to the defendant, that the legislature, having turned its mind to the issue, concluded against bestowing an immunity on port authorities in respect of vessels which damage the property of a port authority (as occurred in the present case). The omission of such an immunity is thrown into sharp relief, according to counsel, when one considers the comprehensiveness of the immunities which have otherwise been conferred. The language of s 113 should not be strained, according to counsel, to create or give effect to an immunity. If it was intended to confer an immunity on a port authority, by either this provision or some other provision in the statute, the legislature would have expressly done so.
11. There are some immediate difficulties with this analysis. First, the plaintiff does not characterise s 113 as an immunity as such; it says that the ordinary and natural operation of the provision would be undermined by the defendant's pleaded duty. Second, where there is damage to port infrastructure, there is no evident need for an immunity in favour of the port authority. Inflicting damage on port infrastructure gives rise to a question whether the port may advance claims against those responsible for the damage, and the legislature has addressed this issue by way of s 113. Third, as to circumstances in which there is damage to vessels in port, an immunity is found in s 114B.
12. Ultimately, the defendant conceded the pleaded duty is novel, but absent 'a patent, or readily demonstrable, fatal flaw' as to the merits of the counterclaim, the merits of the counterclaim should be determined in the course of the trial.[40]

G. Disposition First Issue - What is the relevant question to address on this application in order to determine whether the pleaded duty can be sustained as a matter of law?

1. The counterclaim advanced by the defendant in the present case is reflexive in nature, as I have already observed. The defendant seeks to transmit to the plaintiff port authority the liability for any damage which falls upon the defendant by reason of the port authority's alleged negligence (either under the common law or under the Occupiers' Liability Act 1985 (WA)).
2. Necessarily, in order to succeed with its counterclaim at trial, the defendant must demonstrate the existence of a duty of care which is recognised at law and owed to it by the plaintiff statutory authority.
3. It is long‑established that when statutory duties or powers are exercised, they must be exercised with reasonable care so that if those who exercise them could, by reasonable precaution, have prevented an injury which has been, and was likely to be, occasioned by their exercise, damages in negligence may be recoverable.[41] As explained recently by the Court of Appeal in Seiffert, this general principle has been stated and applied in cases where the exercise of the statutory power by the repository of that power was liable to, and did, cause physical injury to a person or damage to a person's property.[42]
4. In the context of this application, it is appropriate that I briefly examine the principles recently stated, and the conclusions reached, in the unanimous decision of the High Court in Herridge. The arguments advanced by the plaintiff on this application are ultimately narrower in focus, though, with attention being drawn to inconsistencies between the asserted duty and specific statutory provisions, rather than the broader relationship established between the parties.
5. In Herridge, the plaintiffs pursued claims for loss and damage against the Electricity Networks Corporation (which traded as Western Power) as a result of a well-known bushfire which occurred in Western Australia. The fire started when a jarrah pole on the land of a private citizen fell to the ground. The electrical cables and other apparatus of Western Power were attached to the pole. The fall of the pole caused electrical arcing and the dry vegetation around the base of the pole was ignited. The pole was a point at which the electricity distribution system was attached to the consumer mains. The pole failed below the ground line due to fungal decay and damage by termites. Western Power operated the relevant electricity distribution system which was used to deliver electricity to the property.
6. The High Court carefully examined the terms, scope and purpose of the statutory framework under which Western Power operated and, importantly, the statutory functions and powers which Western Power in fact exercised. The High Court stated the following principles (footnotes omitted):

[19] There is no freestanding common law rule which fixes whether and when a common law duty of care upon a statutory authority might, or might not, arise. Statutory authorities take many forms and have different functions and powers. It is wrong to treat all statutory authorities alike.

[20] The starting point for analysis of any common law duty of care that might be owed by any statutory authority must always be the particular statutory framework within which the statutory authority operates:

'The existence or otherwise of a common law duty of care allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.'

And in formulating a common law duty, it is important to keep in mind the distinction between the existence and content of the duty (who owes the duty, whom do they owe the duty to, and what kind of risks of harm must they take reasonable care to minimise or avoid?) and questions of breach (what were the reasonable precautions required in the circumstances, and did the person discharge the duty?).

[21] The two propositions - that there is no freestanding common law rule which fixes whether and when a common law duty of care upon a statutory authority might, or might not, arise, and that the starting point for the analysis of any such duty is the terms, scope and purpose of the applicable statutory framework - require first that the functions of the statutory authority are identified and, second, that the statutory powers that the statutory authority in fact did exercise in performance of those functions (as well as those which it could have exercised but did not) are identified.

[22] Generally speaking, a statutory authority which is under no statutory obligation to exercise a power comes under no common law duty of care to do so: '[t]he common law does not superimpose such a duty on a mere statutory power'.

[23] But a statutory authority may, by its conduct, assume a responsibility to exercise the power. In that case, the statutory authority may owe a common law duty which requires it to exercise a power which it is under no statutory obligation to exercise. The approach to whether a statutory authority has assumed responsibility to exercise a power, such that it can be tortiously liable for an omission to exercise that power, has sometimes been considered by reference to notions of 'control'.

1. The High Court in Herridge then proceeded to explain that, in determining the existence and content of a duty of care arising from the statute, the whole statutory regime must be considered, including powers which have not been exercised but are interconnected with powers which have been exercised. Further:

[27] When a statutory authority has entered into the exercise of its statutory powers, the question is whether the relationship between the statutory authority and a class of persons affected by the manner of exercise of the power was such as to give rise to a duty of care. The focus of the analysis is upon the relevant legislation - the powers that have been exercised in the performance of the authority's statutory functions - and the positions occupied by the parties. If such a relationship is created, then 'the common law imposes a duty in tort which operates alongside the rights, duties and liabilities created by statute'. A duty cannot arise where it would be inconsistent or incompatible with the statutory powers or duties imposed on the statutory authority or it would be incoherent with the statutory framework.

1. The High Court examined whether a duty of care arose in circumstances in which the particular statutory authority entered into the field of exercising specific powers in the discharge of its functions, and thereby assumed control or exercised control. One of the primary questions asked by the court was whether the statutory authority had exercised its powers to intervene in a field of activity in a manner which has increased the risk of harm to persons whom it had the power to protect.[43] The necessary analysis required in Herridge focussed on the powers exercised by the statutory authority in that case, in discharge of its functions, and whether that created relationships which gave rise to a common law duty of care.
2. The High Court described the defendant statutory authority (Western Power) as a commercial body with a profit making purpose and with no policy making functions, which was required to act on prudent commercial principles, endeavouring to make a profit from its prescribed statutory functions, including, relevantly, that of undertaking, operating, managing and maintaining the particular electricity distribution system.[44] The court explained that the critical feature of the appeal was that Western Power stepped into the arena - it exercised specific statutory powers in performing its statutory functions of undertaking, operating, managing and maintaining the electricity distribution system as well as any works, system, facilities, apparatus or equipment required for those purposes, and had attached the premises in question to its distribution system (and energised those premises).[45]
3. Further, the court concluded that the exercise by Western Power of its powers in performing its statutory functions created a relationship between it and all other persons within the vicinity of its electricity distribution system. A critical feature of that relationship was that Western Power exercised those powers in a manner which created or increased the risk of harm to those persons - persons it had the power to protect. The jarrah pole only posed the risk that it did because Western Power had attached its live electrical apparatus to it.[46]
4. Further, the broad duty owed by Western Power was regarded by the High Court as not being inconsistent or incompatible with the statutory functions and powers imposed on it.[47] Finally, as to the question of coherence of the duty of care with the statutory framework, the court concluded that Western Power had ample power to discharge its duty.[48]
5. As foreshadowed at [79] above, the arguments advanced by the plaintiff on this strike-out application require a somewhat narrower analysis to that undertaken in Herridge. Attention is predominantly directed to the effect of the statutory damages claim which the legislation affords to port authorities and the protective effect of the statutory immunities granted to them, against the broader context of the statutory framework in which the plaintiff operates as a port authority.
6. Nonetheless, what remains constant is the importance of examining the terms, scope and purpose of the statutory framework,[49] in order to assess whether the pleaded duty is inconsistent or incoherent with the framework. What, then, is the particular question which must be addressed on this application? Let me address this question now.
7. The High Court in Herridge recognised that the question whether the common law may impose a duty which operates alongside the rights, duties and liabilities created by a statute has been addressed by the court on several occasions over the recent decades.[50] In this regard, the court referred to Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1, Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562, Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540, and Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215.
8. In Crimmins, McHugh J stated the point in clear terms:

No common law duty of care can be imposed on a statutory authority if to do so is either forbidden by the relevant Act or is inconsistent with the statutory scheme.[51]

1. In Graham Barclay Oysters, Gummow and Hayne JJ referred to the need for a 'close examination' of the terms, scope and purpose of the relevant statutory regime in order to determine the existence or otherwise of a common law duty of care allegedly owed by a statutory authority. The question was whether the statutory regime 'erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence' (at [146]). Where that question is answered in the affirmative, the duty in tort would be imposed. However, their Honours recognised that 'in some instances, a statutory regime may itself, in express terms or by necessary implication, exclude the concurrent operation of a duty at common law' (at [147]). One such instance, referred to by Gummow and Hayne JJ, is found in Sullivan v Moody.
2. In Sullivan v Moody, which was resolved on a pleading point without the need for a trial, the court said:

The statutory scheme that formed the background to the activities of the present respondents was, relevantly, a scheme for the protection of children. It required the respondents to treat the interests of the children as paramount. Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered, and were under threat of, serious harm. It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm.[52]

1. The question was later stated by Gummow, Hayne and Heydon JJ in Kirkland-Veenstra by reference to the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute.[53]
2. In summary, the relevant question for the purposes of the present application is not whether and how the plaintiff statutory authority exercised its powers in the performance of its functions, nor is it necessary to undertake a salient features analysis to determine whether a relationship giving rise to a common law duty existed. On this application, I am to assume those matters favourably to the defendant Vessel-owner. Having regard to the foregoing statements of principle, and the submissions of the parties, the relevant question in my view for present purposes is whether that duty would be inconsistent or incompatible with the statutory powers or duties imposed on the plaintiff statutory authority, or whether it would be incoherent with the statutory framework. This question demands a close examination of the terms, scope and purpose of the relevant statutory regime, and the specific provisions upon which the plaintiff relies to demonstrate inconsistency or incoherency. If this question is appropriate to answer on this application and is answered in the negative, that is the duty is inconsistent or incompatible with the framework, or lacks coherency therewith, the plaintiff's application would need to be upheld.

Second Issue - Is it appropriate to resolve the above question on this interlocutory application?

1. The plaintiff's application raises a number of difficult questions of interpretation of the provisions of the PAA, and requires a detailed analysis of the ability of the pleaded duty of care to co-exist or operate alongside those provisions. That much can be seen from the summary of the parties' submissions and the review of the statutory framework set out earlier in these reasons.
2. At the outset, I recognise that I should proceed with caution before striking out a pleading on the ground that it does not disclose a reasonable cause of action and where a difficult question of law is involved. I recognise that it may be inappropriate to attempt to resolve a difficult question of law within an interlocutory application, prior to the relevant facts being found. The court has a discretion to refrain from finally resolving such questions in an interlocutory setting. I have earlier referred to the decisions of Smith J and the Court of Appeal in Cliffs Asia Pacific in this regard.[54]
3. The decision in Sullivan v Moody provides an example of a case where the existence of a pleaded duty, in the context of a statutory regime, was resolved on an interlocutory basis, prior to a trial of the matter. More recently, the Supreme Court of Victoria was prepared to strike out a duty of care sought to be imposed on a public authority on an interlocutory application, having found the duty of care would be inconsistent with the statutory framework conferring the relevant functions, powers and duties. I refer to Donohue v Westin [2022] VSC 794 (Daly AsJ). Those were both very clear cases in which no duty could arise on the facts, no matter how pleaded.
4. The more orthodox approach, in cases where the question is less clear, can be found in the reasons of the majority in State of New South Wales v West [2008] ACTCA 14.[55]
5. In West, the Court of Appeal of the Australian Capital Territory considered an appeal from a refusal to strike-out the statement of claim for allegedly disclosing no reasonable cause of action. It was a bush fire case. The particular issue before the court was whether the State of NSW owed a duty of care to the respondent landowners to protect them from loss or damage through the agency of the officers of the Rural Fire Service. It was alleged that the Rural Fire Service failed to exercise its statutory powers under the Rural Fires Act 1997 (NSW) with reasonable care, so that a fire spread and damaged their property. Among other matters, the State of NSW alleged that the express provisions of the Act (including a specific immunity provision) precluded any duty or, at least, provided a legislative bar to suit.
6. Connolly J at first instance declined to strike out the claim.[56] The majority of the court on appeal (Higgins CJ and Penfold J) dismissed the appeal, concluding that the matter could not, and should not, be resolved in an interlocutory setting.[57] The operation of the statutory immunity provision was of particular concern to their Honours. In dissent, Graham J was prepared to find that the relevant duty could not arise and upheld the appeal.[58]
7. Higgins CJ held as follows:

[65] There is some question as to the scope of the Crown immunity conferred by s 128. In my view, the scope and effect of immunity proved at trial depends on the facts and circumstances should that immunity be relied upon. The appellant would carry the onus, should it be in issue, of establishing that it acted or omitted to act in good faith.

[66] Accordingly, I do not agree that the respondents' case is not able to succeed on the allegations relied upon by them. As I have noted, it is not for the respondents to allege or prove lack of good faith. Their cause of action is established if negligence is proved, though such a case is not without difficulty. If it is so proved, the appellant may seek to rely on s 128 and must then prove that the act and omissions causative of the loss and damage to the respondents were done or omitted to be done 'in good faith', whatever that may, in context, mean.

[95] However, there are two reasons why s 128 might not provide a complete answer to the respondents' claims.

[96] First, it is possible that s 128, in its application to actions taken 'for the purpose of executing any provision ... of [this] or any other Act', would be interpreted narrowly.

[97] Statutory provisions excluding liability for acts done by authorities 'exercising powers conferred' by an Act have been held not to apply to acts for which no express statutory authority is needed or given (see, for instance, Board of Fire Commissioners v Ardouin [1961] HCA 71; (1961) 109 CLR 105 (Ardouin)). Provisions referring, as s 128 of the Rural Fires Act does, to actions taken 'for the purpose of executing' provisions of an Act may be found to bar action against fire brigades more broadly and more effectively than the provisions considered in Ardouin, but this is yet to be settled (see Michael Eburn, Emergency Law (2nd Ed, 2005) 141), and would not appropriately be settled in an appeal of this nature.

[98] Secondly, as pointed out by Higgins CJ, s 128 is limited, as far as actions are concerned, to actions taken in good faith. The plaintiffs have not so far pleaded bad faith, but the opportunity to raise such matters, and if necessary to put the defendant to proof of good faith, should not be excluded at this stage.

[99] As to the operation of subs 128(1) in relation to omissions by protected persons or bodies, I do not consider that the absence of a reference to matters or things being omitted in good faith means that all omissions, including those in bad faith, are protected in the way that acts in good faith are protected. Rather, if a failure to act is the result of a conscious or deliberate decision, as in this case, then I do not see that there would be any difficulty in examining whether that decision was made in good faith for the purpose of s 128. On the other hand, if an omission is entirely inadvertent or unconscious or otherwise has no mental element, an examination of whether it occurred as a result of good faith or bad faith would seem to be unproductive - this may explain the form of subs 128(1).

[100] In summary, s 128 of the Rural Fires Act might emerge as a complete bar to the plaintiffs' actions in this case, but this cannot properly be determined without a hearing as to the facts.

1. In a similar vein, the Full Federal Court in BHP Group Limited v Impiombato [2021] FCAFC 93 accepted that there was every reason for caution to be exercised by a court in determining, at a preliminary stage, and without a full factual context, a complex and novel question of statutory construction.[59] The issue before the court in that matter was whether the losses claimed to have been suffered by the foreign shareholders of BHP were within the contemplation of the relevant provisions of the Corporations Act 2001 (Cth).
2. In my view, given the nature of the issues raised by the parties in their submissions and at the hearing, it is not presently appropriate that I undertake the statutory construction task in an abstract setting, without reference to the particular factual context. I have reached this view having regard to the above principles and for the reasons explained below.

1. First, it is well to observe that, although at a broader level the essential principles on which this application turns emerge from a relatively recent decision of the High Court in Herridge, the operation and scope of the provisions of the PAA are presently free of direct judicial analysis.
2. More than a decade ago, very similar issues to those which arise in the current action formed the basis of proceedings in the Federal Court of Australia: Geraldton Port Authority v The Ship Kim Heng 1888 [2011] FCA 1148 [5] - [6] (McKerracher J) and Geraldton Port Authority v The Ship Kim Heng 1888 (No 2) [2012] FCA 353 (McKerracher J). Indeed, the defendant's current counterclaim has strong echoes of the tortious cross-claim pleaded by the three vessels involved in those proceeding in the Federal Court (which were in rem proceedings). Those proceedings appear to have been resolved before any judicial determination was required as to the validity of the reflexive cross-claim pleaded by the vessels.

Statutory immunities - construction in their factual context

1. Second, the plaintiff places considerable reliance on the statutory immunity provisions in the PAA to support this application. The process of construction of these immunity provisions should not be determined in an abstract setting, but should be undertaken by reference to the particular factual context. The approach adopted by the majority in West strikes me as conceptually sound even when dealing with immunity provisions which are not drafted in language akin to s 128 of the Rural Fires Act.
2. Indeed, ordinarily, a party for whose benefit such immunity provisions operate should plead those immunities by way of defence to a claim. That way, the party will be required to identify the specific immunity provision and particularise the manner in which the provision is engaged in the particular circumstances.
3. Whether those immunities are engaged would ultimately then be a matter for determination at a final hearing, once the relevant facts have been found, not by way of a strike-out application or summary dismissal determination, where the existence of the immunity is called in aid in a general sense to support a construction of the statutory framework which would deny the existence of the pleaded duty.
4. As matters stand, there must at least be some doubt whether the immunity in s 114B can operate to preclude the asserted duty arising. I say this because this provision establishes an immunity for port authorities with respect to damage to vessels, rather than damage to port infrastructure (and the pleaded counterclaim concerns damage to the latter). The plaintiff port authority will have some difficulty in erecting the s 114B immunity in defence of the counterclaim. If that is right, it would be difficult to conclude at this stage that the presence of the provision would support the view that the pleaded duty is inconsistent with the statutory regime, or somehow incoherent in that context. I acknowledge that a single act or omission, which leads to a collision between a vessel and port infrastructure, may produce damage both to the infrastructure and to the vessel. There is thus, at least arguably, likely to be a close association between the operation of s 113 PAA and s 114B(1) in this regard (particularly given the terms of s 114B(2)(b) which deals with a port authorities' liability resulting from a defect in a mooring, anchorage or berth). However, the operation and effect of s 114B, at least when assessed in a abstract setting, does not so obviously undercut the pleaded duty.
5. As to the immunity found in s 114EA, there is an initial question of construction as to the scope of the phrase 'an act or omission of a person who is, or is acting on behalf of, a user of its port'. Examined in the abstract, it is not beyond argument that this phrase extends to the various actors involved in the incident on the morning in question including the mooring gang, the operators of the ship loader and the persons who prepared and provided the Mooring Plan (as is submitted by the plaintiff). However, a narrow construction of the provision might mean that these persons cannot be said to be acting on behalf of the user of the port, namely the Vessel‑owner. It is not beyond argument that the relevant act or omission was of a user of the port, either.
6. Pulling these threads together, it seems to me that unless I am to conclude that the specific immunities are engaged on the assumed facts, it is not open to conclude that the presence of these immunities renders the pleaded duty inconsistent with the statutory regime, or otherwise incoherent. To do that might be to afford the immunities a greater field of operation than the legislature intended.

1. Third, the construction of the immunity provisions (particularly ss 114B and 114EA) will involve a question whether those provisions should be strictly construed, or given an interpretation that goes no further than a 'jealous interpretation would allow'.[60] This is because provisions of this nature derogate from the ordinary rights of individuals.[61] It is clear that a statutory abrogation or curtailment of a fundamental freedom or right will not be imputed unless it is clearly manifested by unmistakable and unambiguous language.[62]
2. These principles of statutory construction may well require general words giving immunity for any action against a statutory body to be read down so that they do not apply to functions of an ordinary character done pursuant to agreements with the consent of private citizens.[63] Such immunities may not apply to conduct which is already lawful absent the conferral of an authorisation or function by the statute in question. These matters should not be determined in a vacuum.

1. Fourth, and allied to the second and third points above, the apparent operation of the immunity provisions (particularly ss 114B and 114EA) should be tested against the terms of the available extrinsic material, with the benefit of full argument.[64] I note the 2003 EM provides that port authorities need to be indemnified 'from associated liability', leaving vessel owners to have recourse to their insurance (concerning s 114B). The 2014 EM states the immunity in s 114EA is designed to 'reduce the exposure of port authorities to the actions of port users' and identifies a specific example concerning the contamination of woodchip stockpiles by other export products such as coal dust. This example suggests the provision was intended to address a particular mischief.
2. The process of construction of these provisions should not be attempted in an interlocutory setting. As matters stand, the terms of the extrinsic material I have identified creates some room for doubt as to the manner in which the provisions should be construed.

Construction of s 113

1. Fifth, in my view the construction of s 113 should also be undertaken by reference to the factual context, rather than in a vacuum. The provision operates to afford port authorities a remedy against the owners of vessels or other prescribed things[65] where the vessel (or the equipment or cargo of the vessel) or the prescribed thing[66] damages any port facility or other property of a port authority. The text of the provision appears to give it a broad operation. An important feature of the cause of action created by the provision is its strict liability nature. That is, the port authority is not required to demonstrate fault on the part of the owner or any other person. The remedy is afforded to the port authority whether or not the damage is caused through a person's wilful or negligent act or omission.[67]
2. In the event wilful or negligent conduct can be demonstrated on the part of the master of the vessel (or the person having charge or control of the prescribed thing), the port authority's remedy is extended to include the master or other person. A form of joint and several liability is created as against the owner, the master, and the person having charge or control of the prescribed thing.[68]
3. So, while fault may be demonstrated, and if demonstrated the statutory liability can be extended to other persons, it is not necessary in order to ground a claim against a vessel‑owner. The relative simplicity of the statutory cause of action in this regard is an important indicia of the purpose of the provision. It appears intended to permit a port authority to have a ready ability to protect itself and obtain compensation where damage is inflicted to its port facilities or other property.
4. To then impose upon the port authority a duty to protect a vessel‑owner from the very liability which the provision imposes on the vessel‑owner (in respect of loss or damage which is coterminous), might arguably appear to undermine the purpose of the provision.
5. But does this mean the court can have a high degree of certainty, at this early stage of the proceedings, as to the ultimate outcome of this aspect of the matter (and that this constructional issue should be resolved on the pleadings without the usual trial processes having first been deployed)? There are two features of the statutory regime (and the arguments of the parties) which require closer analysis than has been undertaken in this application, in order to determine whether the pleaded duty can co-exist with the statutory damages claim established by s 113.
6. The first feature is that I am mindful there is a construction of s 113 which counsel for the defendant articulated during the hearing, to the effect that the provision is intended to operate as a mechanism to merely enforce or secure payment against a vessel's owner. If I were to accept this construction, it might follow that there is no necessary inconsistency between the pleaded duty and that provision. The duty of care and the operation of s 113 could, at least arguably, operate and survive harmoniously together.
7. The operation of this provision and the defendant's construction might be tested in three, relatively simple scenarios: (1) where the true cause of the damage to the port infrastructure (i.e. the fault) is the owner of the vessel; (2) where the true cause of the damage is a third party but the vessel is the immediate physical cause of the damage; and (3) where the true cause of the damage is the port authority itself or persons for whom the authority is legally responsible. In the first scenario, the provision operates to render the owner liable, without the need to demonstrate fault. In the second scenario, the port authority has a ready ability to pursue compensation for the damage to port infrastructure from the vessel‑owner, leaving it to the vessel‑owner to seek contribution or indemnity from the third party whose conduct or inaction caused the damage.
8. It is in the third scenario where the parties differ in approach. In this scenario, there is scope on the defendant's preferred approach for the vessel‑owner to raise a tortious counterclaim in response to any claim against it from the port authority (as the defendant seeks to do in the present proceedings). In that scenario, the question of fault would fall to be determined as part of the vessel‑owner's counterclaim (it being unnecessary for the port authority to demonstrate fault to succeed on its statutory claim, and which the defendant says is a security measure, in effect).
9. Against the argument developed by the defendant, I observe that the asserted purpose of the provision finds little support in the express text of the legislation. The provision operates in a broader context than vessels - it applies to 'prescribed things' as well, which can include floating objects, gas substances, and machinery.[69] Counsel for the defendant did not rely on the explanatory memoranda to support this construction but, in any event, I can find no obvious support therein.[70] Further, if this enforcement or security purpose was indeed the evident purpose of the provision, one might have expected additional language to have been included in the regime to ensure the provision was deployed by port authorities in the manner which counsel for the defendant suggested (i.e. in order to secure prompt payment by a vessel‑owner before the vessel departs from the port). The provision is expressed in far broader language and appears to apply in circumstances well beyond this.
10. I accept there is an aspect of s 113 which addresses how the liability created by that provision may be practically approached, as between multiple parties. But this sub-section does not assist the defendant's construction that the provision is intended to operate only as a security mechanism. The sub-section (s 113(5)) caters for the circumstance in which the owner of any vessel or prescribed thing satisfies the liability to the port authority, in circumstances in which the master or other person is also jointly liable.[71] One can readily imagine the owner may have more of a vested interest (relative to the master or other person) in satisfying that liability. In such circumstances, the regime allows for the owner to recover any money or fine paid, with costs, from the master or other person.
11. As matters stand, though, I simply cannot discount the argument that s 113 has a narrow operation and intended effect, such that its presence in the legislation does not deny the pleaded duty. The apparent simplicity of the provision, and its strict liability nature, may in fact be seen as providing support for the defendant's preferred construction of s 113. That is, the provision may be intended to provide a port authority with a facility to recover compensation for damage suffered to its infrastructure, but it leaves questions of fault to be determined through non-statutory means, such as claims in tort.
12. The second feature of the statutory regime which provides the basis for the defendant's argument that the pleaded duty can co-exist with the statutory damages claim is the presence within the legislation of provisions which impose broad functions or responsibilities of safety on a port authority. I refer specifically to ss 30(1)(d) and 114(2).[72]
13. These safety provisions are general in nature and of the type one would ordinarily expect in the enabling statute of a body which manages large scale infrastructure, such as a port. Section 30(1)(d) provides that a function of a port is to be responsible for the safe and efficient operation of the port. It does not, as such, impose an express duty. Section 114(2) obliges a port to have a marine safety plan. Both of these provisions are important aspects of the framework. The significance of safety for people and property, within a busy port environment, cannot be overstated.
14. These general safety provisions will obviously need to be seen in the context of the specific provisions incorporated in the regime which are targeted at situations such as the present, where damage arises from a collision between a vessel and the port infrastructure. These specific provisions, namely ss 113, 114B and 114EA, provide support for the plaintiff's preferred purpose of the legislation, designed as it is to afford port authorities protection from liability in circumstances which might otherwise give rise to liability, and to afford port authorities no fault recovery. But the presence within the PAA of particular obligations of safety cannot be ignored and may provide support for the view that the pleaded duty is not incompatible with the statutory framework.
15. Accordingly, for the reasons developed at [104] to [130] above, I consider it is inappropriate that I undertake the statutory construction task which is required by the plaintiff's strike-out application. That is a matter which should be determined at trial.

Third issue - If so, is this a clear case in which the court can have a high degree of certainty as to the ultimate outcome of the proceedings if it went to trial?

1. Given my answer to the second issue, the third issue does not arise on this application.

1. The plaintiff's strike-out application raises more than mere trifles with the formulation of the defendant's counterclaim. The plaintiff contends that the claim is conceptually flawed in that the duty of care pleaded cannot stand as a matter of law, when held to the light of the relevant statutory framework. There is, according to the plaintiff, no reasonable cause of action apparent in the pleaded counterclaim as a result.
2. The issues posed by the plaintiff's application involve difficult questions of statutory construction of the PAA, which are presently free from direct judicial analysis. Recognising the caution with which such applications should be approached, I have reached the view that it would be inappropriate to resolve these questions on this application, in the absence of proper findings of fact.
3. For the reasons I have explained, I will refrain from expressing a concluded view as to whether the pleaded duty is reasonably arguable.
4. The plaintiff's application should therefore be dismissed. The counterclaim pleaded in the ASDC should stand. I will hear from the parties on the issue of costs.

EXTRACTS FROM THE PORT AUTHORITIES ACT 1999 (WA)

Part 7 - Navigation and port matters

Division 4 - Damage in a port caused by vessels etc.

1. Responsibility for damage to port facilities or property

(b) any material, product or substance (whether solid, liquid or gas); or

(c) any vehicle, plant, machinery, equipment or infrastructure.

(1) This section applies if any port facility or other property of a port authority is damaged by -

(c) any person employed in, on or in relation to, a vessel, or its equipment or cargo, or a prescribed thing.

(2) If this section applies, the owner of the vessel or prescribed thing is answerable in damages to the port authority for the whole of the damage whether or not the damage is caused through a person's wilful or negligent act or omission.

(3) If the damage is caused through the wilful or negligent act or omission of the master of the vessel or of the person having charge or control of the prescribed thing, that master or person (as well as the owner) is answerable in damages to the port authority for the whole of the damage.

(4) Neither the port authority nor any other person is entitled under this section to recover more than once for the same cause of action.

(5) If the owner of any vessel or prescribed thing -

(a) pays any money in respect of any damage to which this section applies caused through the wilful or negligent act or omission of a master or other person referred to in subsection (3); or

(b) pays any fine by reason of any act or omission of a master or other person referred to in subsection (3),

the owner may recover the money or fine so paid, with costs, from that master or other person in a court of competent jurisdiction as a debt due to the owner.

(6) In an action under this section the damages recoverable are to be determined on the basis of -

(a) the actual cost incurred in repairing or replacing the damaged port facility or property without taking into account any betterment or depreciation; and

(b) any economic loss suffered by the port authority as a result of the damage.

[Section 113 amended: No. 9 of 2014 s. 25.]

[Heading inserted: No. 71 of 2003 s. 7.]

114B. Immunity from liability for damage to vessels

(1) Without limiting any other provision of this Part, a port authority is not liable for any loss or damage caused to a vessel in its port.

(2) Without limiting subsection (1) or any other provision of this Part, a port authority is not liable for any loss or damage caused to a vessel in its port -

(i) the master of the vessel complying with a direction given in good faith; or

(ii) a thing done or omitted to be done in good faith in respect of the vessel,

by the harbour master or a member of the staff of the port authority; or

(b) that results from a defect in a mooring, anchorage or berth, or anything else, provided by the port authority.

[Section 114B inserted: No. 71 of 2003 s. 7.]

(1) A port authority is not liable for any loss or damage caused to any goods that a person (other than the port authority) -

(a) loads on to or unloads from a vessel at the port; or

(2) The port authority does not become liable for any loss or damage caused to any goods referred to in subsection (1)(b) stored in an uncovered or unprotected manner at the port because the port authority provides, or attempts to provide, any temporary cover or protection for those goods.

[Section 114C inserted: No. 71 of 2003 s. 7.]

114D. Immunity from liability for delay in delivery of goods

A port authority is not liable for any loss caused by or relating to a delay in the delivery of any goods loaded on to or unloaded from a vessel at the port.

[Section 114D inserted: No. 71 of 2003 s. 7.]

114EA. Immunity from liability for acts or omissions of port users

(1) A port authority is not liable for any loss or damage resulting from an act or omission of a person who is, or is acting on behalf of, a user of its port.

(2) Subsection (1) does not affect any liability a port authority might have for breach of contract.

[Section 114EA inserted: No. 9 of 2014 s. 26.]

114E. Immunity from liability for certain events and actions

(1) A port authority is not liable for any loss or damage resulting from an event outside the control of the port authority, including -

(d) any insurrection, revolution or civil disorder; or

(e) the unlawful seizure or control of any people or any vessels, vehicles or other property; or

(f) any industrial disputes of any kind, including strikes, lockouts, stoppages or restraints of labour (whether partial or general) from any cause; or

(g) the use for the purpose of war or defence, or training or preparation for war or defence, of any port facilities or other property of the port authority.

(2) A port authority is not liable for any loss or damage resulting from any action taken or caused to be taken by the port authority under section 27 or 28 of the Pollution of Waters by Oil and Noxious Substances Act 1987.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Statement of Claim dated 14 September 2022 (SOC) [3] - [6].

[2] Unless otherwise stated, all references to statutory provisions in these reasons are references to provisions of the PAA.

[4] Amended Substituted Defence and Counterclaim dated 3 March 2023 (ASDC).

[5] Vantage Holdings Group [60(d)] (Smith J). See also Great Southern Finance Pty Ltd (in liq) v Rhodes [2014] WASC 431; (2014) 103 ACSR 137 [26] (Beech J).

[6] Vantage Holdings Group [60(e)] (Smith J).

[7] Vantage Holdings Group [60(e)] (Smith J).

[8] Vantage Holdings Group [60(f)] (Smith J).

[9] Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414, 25 August 1986).

[10] As this is a strike-out application in the early stages of the proceedings, the allegations contained within the parties' pleadings have not been tested and are not yet the subject of evidence. The matters recorded in this section of these reasons are therefore merely a recitation of the pleaded allegations and I make no findings of fact in relation to any those allegations.

[11] Neither of the parties plead any allegation concerning the involvement of pilotage services in the incident in question, nor any direction given by a harbour master. Claims involving those matters, particularly pilotage services, would give rise to more complex legal issues and may require a consideration of additional statutory regimes, including the Pilots' Limitation of Liability Act 1962 (WA) and the Navigation Act 1912 (Cth).

[12] These amendments were introduced through the ASDC which was filed and served on 3 March 2023, and were intended to narrow the pleaded duty of care.

[13] Amendments were made to the pleading at ASDC [13], although they were not marked on the pleading which was filed on 3 March 2023. In essence, the defendant deleted the previously pleaded particular concerning the Mooring Plan provided by the plaintiff, which was initially pleaded to be inadequate, incorrect, and not followed by the plaintiff: see SDC [13(B)].

[14] By way of example, I refer to the Fremantle Port Authority Act 1902 (WA) and the Bunbury Port Authority Act 1909 (WA).

[15] By way of example, I refer to the Fremantle Port Authority Regulations 1971 (WA) and the Bunbury Port Authority Regulations 1962 (WA).

[16] The process by which a strategic development plan is prepared and agreed is dealt with in ss 49 to 57, and the process by which a statement of corporate intent is prepared and agreed is dealt with in ss 58 to 66.

[17] The divisions are as follows: Division 1 - Navigational aids; Division 2 - Pilotage; Division 3 - Harbour masters; Division 4 - Damage in a port caused by vessels etc; Division 5 - Port safety; Division 6 - Powers of police officers and others; and Division 7 - Protection from liability.

[18] Ports and Marine Legislation Amendment Act 2003 (WA), Act No. 71 of 2003 (2003 Amending Act). It appears these provisions, or provisions of a similar nature, were originally included in the Port Authorities Regulations 2001 (WA) but were then repealed and re-enacted in 2003 in the enabling statute itself: see the Second Reading Speech, Ports and Marine Legislation Amendment Bill 2003, Hansard, Legislative Assembly, 27 February 2003, page 4830. Further to this, it appears that, historically and prior to 2001, many of the immunities for port authorities were found in regulatory instruments, not the enabling statute. For example, see regs 123B and 302 of the Fremantle Port Authority Regulations 1971 (WA), which have now been repealed.

[19] For present purposes, I propose to recite the relevant terms of the 2003 EM but plainly there are limits on the manner in which such material can be used as an aid to the statutory construction exercise.

[20] Ports Legislation Amendment Act 2014 (WA), Act No. 9 of 2014 (2014 Amending Act).

[21] I have extracted the full terms of these provisions in Attachment A to these reasons.

[26] Plaintiff's Supplementary Submissions [4.1]. The plaintiff points to various allegations pleaded in the ASDC in this regard, at [5(b)(i)], [5(b)(vii)], [5, particular D], [12, particular D 'Warping of the Vessel was not permitted without the approval of the Plaintiff's mooring gang'], [12, particular F], and [13, particulars B and C]. I note that the particulars to [13] have been amended since this submission was made.

[27] Plaintiff's Supplementary Submissions [4.2].

[28] Defendant's Submissions [9] and [23].

[34] Defendant's Submissions [18] - [19].

[38] Defendant's Submissions [23]. The defendant further submits that, by reason of s 47(a), it is entitled to assume the legislation has been complied with at all relevant times, which includes the plaintiff's compliance with its function of being responsible for a safe and efficient operation of the Port of Fremantle. In my view, the defendant's reliance on the assumption provisions is misplaced. These statutory assumption provisions are akin to ss 128 and 129 Corporations Act 2001 (Cth). They have a different, more limited effect than is suggested by the defendant, focused on protection of those persons who have dealings with a port authority. In my view, these provisions cannot be used to justify an assumption that a port authority is complying with its broadly stated functions in s 30(1).

[40] Adopting the language employed by the court in Seiffert [280].

[41] Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430, 455 - 456 (Lord Blackburn); Caledonian Collieries Ltd v Speirs [1957] HCA 14; (1957) 97 CLR 202, 220 (Dixon CJ, McTiernan, Kitto and Taylor JJ); Benning v Wong [1969] HCA 58; (1969) 122 CLR 249, 256 (Barwick CJ); Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424, 458 (Mason J), 436 (Gibbs CJ); Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 [62] (McHugh J); Stuart v Kirkland‑Veenstra [2009] HCA 15; (2009) 237 CLR 215 [117] (Gummow, Hayne and Heydon JJ); and Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR 51 [44] (French CJ, Gummow, Hayne, Crennan and Bell JJ).

[49] Herridge [18], [31] and [33].

[51] Crimmins [114] (McHugh J). See also [213] (Kirby J).

[54] See [20] of these reasons.

[55] See also Smith v Victoria [2018] VSC 475; (2018) 56 VR 332 [168] - [171] (John Dixon J).

[56] West v New South Wales [2007] ACTSC 43 [31] and [34].

[57] West [65] (Higgins CJ) and [95] ‑ [100] (Penfold J).

[58] West [241] and [246] (Graham J).

[59] Impiombato [103] (Middleton, McKerracher and Lee JJ).

[60] Board of Fire Commissioners of NSW v Ardouin [1961] HCA 71; (1961) 109 CLR 105, 116 (Kitto J).

[61] Ardouin (116) (Kitto J); and Puntoriero v Water Administration Ministerial Corporation [1999] HCA 45; (1999) 199 CLR 575 [4] (Gleeson CJ and Gummow J); [34] - [37] (McHugh J); [59] (Kirby J); [113] (Callinan J).

[62] Coco (437) (Mason CJ, Brennan, Gaudron and Kirby JJ); Puntoriero [36] (McHugh J).

[64] And with regard to ss 18 and 19(1)(a) of the Interpretation Act 1984 (WA).

[65] The term 'prescribed thing' is defined in s 113(1A) to mean (a) any floating object, (b) any material, product or substance, or (c) any vehicle, plant, machinery, equipment or infrastructure.

[66] As well as any person employed in, or in relation to, the vessel, its equipment or cargo or the prescribed thing: s 113(1)(c).

[70] Port Authorities Bill 1998, Committee Notes.

[72] Duties to maintain apparatus in a safe condition, among other matters, were imposed on the statutory authority in Herridge. These duties supported the overall conclusion that the asserted duty was not incompatible with the statutory framework. See Herridge [55] - [57].