Long fuse in Albany bomb case

The $15 million legal battle between the Albany Port Authority and the federal government over the removal of unexploded bombs remains in limbo after the case’s latest appearance in the  Supreme Court of Western Australia.

In the latest development in this five-year dispute, the commonwealth has appealed the direction hearing decision handed down by Justice Anthony Templeman in the Supreme Court on May 12, ensuring the issue will continue to remain unresolved.  

The legal wrangle over who is responsible for the dormant devices, inadvertently dumped into the harbour at Albany after World War II, appears to be testing the patience of Justice Templeman.

A critical Justice Templeman ordered that 17 subpoenas issued by the commonwealth be set aside, the recipients of the subpoenas be notified of this in writing, and copies of the letters be sent to him, the minister for defence and the chairman of the Albany Port Authority. 

According to transcripts obtained by WA Business News, Justice Templeman said he believed  the vast array of documents was creating a haystack for the commonwealth to look into it and find a needle or two to puncture the plaintiff’s case.

“I can tell you that in something like the 30 years that I have spent in this business, over 20 years in practice and 10 years as a judge of this court, I don’t think I have ever seen a set of subpoenas which are so blatantly fishing and so oppressive as these,” he said.

The commonwealth’s appeal, on May 15, comes after four mediation meetings and the exchange of 14 experts’ reports between the litigants.  

For its part, the Albany Port Authority is seeking an expedited appeal in an effort to progress the matter towards trial, but CEO Brad Williamson is resigned to the fact it won’t go to court until next year.

“The commonwealth appear desperately keen not to see a precedent on this issue, and we believe appealing the hearing is tactically unwise and not in good faith,” he said.

The state’s expanding woodchip industry, which currently exports about 459,000 tonnes of chips from Albany each year, and the future likelihood of iron ore exports from Grange Resources’ Southdown project in the region has required dredging of the south coast port.

In late 2000, dredging of the harbour uncovered the unexploded munitions and a $3 million modification was required.

Albany Port Authority is now pursuing legal action against the federal government for up to $15 million for the removal of 85 bombs.

It is believed the bombs accidentally fell into the harbour as they were being transferred from warehouses to ships to be dumped out at sea after the war.

Michael Feutrill, acting for the commonwealth, said that up until 1999 the port was controlled by one or more state government bodies.

“We are interested to ascertain and form a view on other potential sources for contamination by ordnance,” he  said.

When questioned by justice Templeman if he accepted that it was commonwealth ordnance in the harbour, Mr Feutrill said: “Not nece-ssarily all of the ordnance that may or may not be on the seabed of the Albany port [is commonwealth ordnance].”       

Justice Templeman also expressed the view that it was an “astonishing proposition” that the parties could not settle the matter out of court and had to proceed towards a trial.