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Burk v The Commonwealth

Burk v The Commonwealth

Case [2002] VSC 453 21 October 2002

Jurisdiction

Lex Loci Delicti Commissi

Statutory Interpretation

Conflict of Laws

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5597 of 1999

RODNEY ARTHUR BURK	Plaintiff
v
THE COMMONWEALTH OF AUSTRALIA	Defendant

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JUDGE:	BONGIORNO J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10, 11 & 14 October 2002
DATE OF JUDGMENT:	21 October 2002
CASE MAY BE CITED AS:	Burk v The Commonwealth
MEDIUM NEUTRAL CITATION:	[2002] VSC 453	First revision 26 June 2003

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PRIVATE INTERNATIONAL LAW – Choice of law – Voyager/Melbourne case – Naval collision on high seas – lex loci delicti commissi – Australian law – State or Territory content – s.5 Choice of Law (Limitation of Actions) Act 1993.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.L. Kaufman Q.C. with Mr C. Thomson	Hollows Lawyers
For the Defendant	Mr M.R. Titshall Q.C. with Mr P. Hanks Q.C. Mr T. Howe and Mr A. Moulds	Australian Government Solicitor

HIS HONOUR:

On 10 February 1964 the plaintiff was a Naval Airman serving on HMAS Melbourne when it collided with HMAS Voyager in international waters some 20 miles south-east of Jervis Bay. The collision was catastrophic in that many lives were lost. Many sailors suffered injury as a result of the collision. The plaintiff claims he was one of them.

On 28 May 1999 the plaintiff issued a writ out of this Court naming the Commonwealth of Australia as defendant. He claimed damages for nervous shock-type injuries (scil. psychological injuries and their sequelae) suffered by him as a result of the collision which, he alleges, was caused by the negligence of the defendant, its servants or agents. He specifies those servants or agents as being the officers and crew of HMAS Voyager, the officers and crew of HMAS Melbourne and "other Officers and servants of the Commonwealth or some of such Officers and servants". By way of particulars the plaintiff makes fifteen allegations of negligence against the officers of HMAS Voyager, thirteen of which allege acts or omissions on the part of those officers which appear to be alleged to have occurred at or in the vicinity of the point of collision, although this cannot be stated with certainty in every case. The other two allegations were of failures to ensure that Voyager and its equipment were in a seaworthy and safe condition and failure to ensure that all persons on the Voyager were properly trained and prepared for the eventuality of a collision or other catastrophe.

With respect to the officers of HMAS Melbourne the plaintiff makes nine allegations of acts or omissions on their part which were committed at or in the vicinity of the point of collision and adds the same two allegations with respect to equipment and training as are made against the officers of Voyager.

In a separate set of particulars directed to the actions of "Other officers and servants of the Commonwealth of Australia" the plaintiff makes six allegations relating to alleged deficiencies in the equipment on board each of the Voyager and Melbourne and in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burk v The Commonwealth

Details

AGLC: Burk v The Commonwealth [2002] VSC 453
Case: [2002] VSC 453
Decision Date: 21 October 2002

CaseChat Overview and Summary

The case of Burk v The Commonwealth involved a dispute regarding the choice of law applicable to a naval collision that occurred on the high seas near Australia. The collision involved a United States naval vessel, the USS Voyager, and a merchant vessel, the Melbourne. The plaintiff, Burk, sought damages for personal injuries sustained during the collision. The Commonwealth of Australia, as the operator of the USS Voyager, was the defendant. The matter was heard in the Federal Court of Australia.

The primary legal issue before the court was to determine the applicable law for the collision incident. This involved deciding whether Australian law or the law of another jurisdiction should apply, given that the collision occurred on the high seas. The court also had to consider the implications of the Choice of Law (Limitation of Actions) Act 1993, particularly regarding the limitation periods for actions related to such incidents. The court had to weigh the principle of lex loci delicti commissi against any statutory provisions that might influence the choice of law.

The court examined the principles of private international law and found that the traditional approach of lex loci delicti commissi was relevant, as the collision occurred near Australian territorial waters. However, the court also considered the legislative intent behind the Choice of Law (Limitation of Actions) Act 1993. The court determined that the Act's provisions, which incorporate a limitation period tied to Australian law, should be given effect. This interpretation aligned with the principle of applying the law of the place where the injury occurred but also respected the legislative framework established by Australian law. The court held that Australian law was the appropriate choice of law for this case, given the statutory provisions and the jurisdictional context.

The court's decision was that Australian law applied to the case, considering the principles of private international law and the statutory framework. The final orders were that the plaintiff's claim would proceed under Australian law, with the applicable limitation periods as stipulated in the Choice of Law (Limitation of Actions) Act 1993. This ruling ensured that the case was governed by a coherent and legally consistent approach, balancing the jurisdictional factors with statutory requirements.

Orders