Australian Steamships Pty Ltd v Abbott

[1927] HCA 7

39 CLR 148

AUSTRALIAN STEAMSHIPS PROPRIETARY ABBOTT Shipping--Seaman landed by reason of illness-Claim for wages until return

home port-Judgment in District Court for wages-Right of appeal to High Court-Navigation Act 1912-1920 (No. 4 of 1913-No. I of 1921), secs. 92, 132.* SYDNEY,

The provisions of sec. 92 of the Navigation Act 1912-1920 apply to a claim April 1.

for wages alleged to be due by virtue of the provisions of sec. 132 (1) (b), and therefore no appeal lies to the High Court from a judgment of a District Court upon a claim for such wages.

APPEAL from a District Court of New South Wales.

David Abbott, a seaman, sued the Australian Steamships Ptv. Ltd. in the District Court at Sydney to recover £36 Os. 3d. for wages

* Sec. 92 of the Navigation Act 1912-

132 (1) provides that "Where a seaman 1920 provides that '(1) Where any

belonging to a ship registered sum not exceeding fifty pounds is due

in Australia is left on shore at any place for wages to any seaman

may sue for and recover it in

illness or accident in the service of the a County Court, District Court, or

ship incapacitating him from following Local Court of a State or a Court of

his duty, he shall be entitled summary jurisdiction, in or near the

(b) if landed at a port other than his place

(c) where the person

home port, to receive, after his recovery, from whom the wages are due is, or

a free passage to his home (3) Every judgment

port, with wages, at the rate fixed by or order made under this section shall

his agreement, until arrival at that be final and without appeal." Sec.

39 CLR 149

due from the defendant to the plaintiff from 21st August 1924 to 29th October 1924. It appeared from the evidence that the plaintiff was employed as a trimmer on board the defendant's AUSTRALIAN ship Cooma, which traded between Australian ports that on a voyage from Brisbane to Melbourne the plaintiff became ill and was landed in Melbourne on 21st August 1924 and was discharged from the ship on that day; that he then went into a hospital where he remained for some time: and that he got back to his home port, Sydney, on 29th October 1924. The District Court Judge found that the plaintiff was left on shore at Melbourne by reason of illness in the service of the ship and was incapacitated from following his duty, and therefore that he was, in accordance with the provisions of sec. 132 of the Navigation Act 1912-1920, entitled to recover the wages claimed. Judgment was accordingly entered for the plaintiff with costs.

From that decision the defendant appealed to the High Court. Brissenden K.C. (with him Fuller and Rainbow), for the appellant. E. M. Mitchell K.C. (with him H. G. Edwards), for the respondent, took a preliminary objection. This was a claim for wages under sec. 132 1 (b) of the Navigation Act 1912-1920 and, the amount claimed being under £50, the judgment is by virtue of sec. 92 (3) of that Act final and without appeal. This appeal is therefore incompetent (see Edgecombe v. Australian Steamship Pty. Ltd. (1) ). An appeal from the District Court to the High Court only lies subject to the same conditions as if the appeal were to the Supreme Court (Judiciary Act 1903-1926, sec. 39 (2) (b) Rules of the High Court, sec. IV.,. 1). An appeal from the District Court to the Supreme Court lies only upon a point of law raised and determined at the trial (District Courts Act 1912 (N.S.W.), secs. 142-145). No points of law were raised and determined at the trial.

Brissenden K.C. The provisions of sec. 92 of the Navigation Act 1912 did not apply to the sum which was payable under sec. 132 as it stood in that Act, for what was then payable was a sum equal to

1(1922) 22 S.R. (N.S.W.) 653. 39 CLR 150

the wages the seaman would have received if he had not been left

on shore. It was not intended, when the new sec. 132 was enacted by sec. 40 of the Navigation Act 1920, to alter that position. Sec. 92 should be construed as referring to wages earned on board ship whether under a special contract or otherwise, and should not be extended to cover a sum of money which has not been earned but is a compensation to the seaman, although the new sec. 132 calls it wages.

PER CURIAM. We think that the first point raised by Mr. Mitchell with respect to the appeal is good. It seems to us that sec. 92 covers every claim for wages not exceeding £50. This is, on its face. a claim for wages. The sum is claimed because the Act says it is wages, and it is admitted that the defendant is or resides in New South Wales. It appears to us that under sec. 92 the judgment is final and without appeal.

Appeal struck out with costs. Solicitors for the appellant, Ebsworth &Ebsworth. Solicitors for the respondent, Sullivan Brothers.