James Point port bid may end up in court

THE company behind the proposed James Point port at Kwinana is taking legal steps to confirm its right to build the state’s next container facility, a move likely to pre-empt the state government’s own plan to go to the courts.

James Point chairman Chris Whitaker said the company had decided to go to the Supreme Court to confirm the validity of its agreement with the Western Australian government after a directors’ meeting last week resolved to fight the state’s move to terminate the 11-year-old arrangement.

The government advised the company earlier this month of its plan to end the agreement. It is understood the Office of the State Solicitor wrote to James Point asking the company to accept that the agreement had been breached, or it would take legal action in the courts to confirm the agreement was no longer valid.

Mr Whitaker said the legal action did not involve suing the government for the loss of the whole project because that would imply the company had given up on the port.

“What this is about is simply reconfirming that James Point as a company is fully committed to developing the port and is going to the court to seek a declaration that the contract known as the operating agreement is intact and in place and the entitlements and obligations of James Point remain in place,” Mr Whitaker said.

“The directors last week considered the latest advice from government and resolved to respond by the end of the week.”

It is understood that response is in the form of a Supreme Court writ, with accompanying statement of claim, seeking a declaratory relief, where the court determines the parties’ rights under a contract, and damages.

James Point, a consortium that includes building magnate Len Buckeridge, won a tender to develop the port near the end of the last term of Richard Court’s state government.

Under the agreement the first stage was to have been completed around 2006. Due to delays in achieving approvals and other key milestones connected to the project, James Point has received extensions to this deadline on more than one occasion, the latest being until June 30 this year.

The State’s Solicitor is understood to have claimed the company breached the agreement by failing to apply for a further extension to the agreement that covered the first stage of the port. James Point sources have confirmed they missed the deadline but believe the issue is a technical breach that would hold little weight in a court of law.

One source said the government’s approach to the termination – notably seeking James Point’s agreement or, alternatively, ratification by the court – suggested it lacked confidence in its own legal position.

By contrast, the company has a long history of frustration caused by governments of both hues.

James Point representatives have complained for years that the Labor governments led by Geoff Gallop and Alan Carpenter caused delays to the development. More recently, the conservative government led by Premier Colin Barnett has taken issue with the group’s desire to build a container port as part of its project. 

Transport Minister Troy Buswell said in June that the state wanted to further expand the capacity of Fremantle’s inner harbour and planned to start another review of the outer harbour options at Cockburn Sound.

Mr Barnett has stated that he views a bulk commodities port and a container facility as two distinctly different projects. 

James Point has rejected that view and will seek to repudiate it through the proposed legal action. It not only believes the construction of a container facility is part of the contract, it has said in the past that a bulk facility on its own would not be viable.

It is understood that James Point has lawyer Michael Hotchkin of Hotchkin Hanley preparing a statement of claim in which the company intends to document each of the numerous instances where it is aggrieved with the actions, or lack of action, of various ministerial figures and public servants throughout the past 11 years.

It will not be the first time the company has taken legal action in this matter.

About four months ago, James Point won a long-running battle against the Western Australian Planning Commission in the State Administrative Tribunal.

James Point had sought confirmation that the state government intends to excise a big area of water along the Kwinana coast required for the port’s development and operations.

The win at the SAT meant James Point could go ahead with key development moves such as dredging and land reclamation, once the waters required have been excised from the Fremantle Port Authority.