Caba (Aust) Pty Ltd v Secure Call Pty Ltd
[2019] FCCA 2495
•6 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CABA (AUST) PTY LTD v SECURE CALL PTY LTD | [2019] FCCA 2495 |
| Catchwords: ADMIRALTY – PRACTICE AND PROCEDURE – plaintiff claiming to be the owner of a vessel (Vessel) involved in a collision with other vessels and a marina in the Gold Coast makes claims for damages against repairer of the Vessel alleging that the defendant’s negligent repairs of the Vessel was the cause of the Vessel’s colliding with the other vessels and the marina – owner of marina commenced proceeding in the Federal Court in Brisbane alleging negligence by the person who navigated the Vessel which was subsequently remitted to the Federal Circuit Court in Brisbane – the owners of two of the vessels with which the Vessel collided each commenced proceedings in the Queensland Magistrates Court in Brisbane against the person who navigated the Vessel alleging negligence – the parties in each proceeding agree that all claims in all proceedings should at the very least be heard and determined together – whether claims in all proceedings other than the claims the plaintiff makes against the repairer should be stayed pending determination of those claims – whether all claims should be heard and determined in Brisbane or in Sydney – premature to decide these questions – order made that plaintiff to do all things as are reasonably within its power to cause the defendant in the Queensland Magistrates Court proceedings to apply under s.40 of the Admiralty Act 1988 (Cth) for an order that the proceedings in that Court be transferred to the Federal Circuit Court in Brisbane – proceedings set down for further directions pending application to have proceedings in the Queensland Magistrates Court transferred to the Federal Circuit Court. |
| Legislation: Admiralty Act 1988 (Cth), ss.4(3), 9(1), 11, 17, 27, 39(2), 40 |
| Cases cited: Anchor Products Ltd v Hedges [1966] HCA 70; (1966) 115 CLR 493 |
| Plaintiff: | CABA (AUST) PTY LTD |
| Defendant: | SECURE CALL PTY LTD |
| First Interested Party: | GOLD COAST CITY MARINA PTY LTD (ACN 083 695 283) |
| Second Interested Party: | ANIMAL LOGIC GROUP PTY LTD (ABN 84 096 692 732) |
| Third Interested Party: | GRANT SCURRAH |
| File Number: | SYG 1009 of 2019 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 9 August 2019 |
| Date of Last Submission: | 23 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 6 September 2019 |
REPRESENTATION
| Solicitors for the Plaintiff: | Mr L McBride of Chamberlains Law Firm |
| Solicitors for the Defendant: | Ms W Bure of Carter Newell Lawyers |
| Counsel for the First Interested Party: | Ms M Forrest |
| Solicitors for the First Interested Party: | TurksLegal |
| Solicitors for the Second and Third Interested Parties: | Ms M Swan of Barry Nilsson Lawyers |
THE COURT ORDERS THAT
The plaintiff do all things as are reasonably within its power to cause Mr Colin Willcox to apply under s.40 of the Admiralty Act 1988 (Cth) for orders that the Queensland Magistrates Court transfer proceedings M1345/19 and M1346/19 that are pending in the Brisbane registry of that Court to the Brisbane registry of the Federal Circuit Court of Australia on the footing that it is the request of this Court that those proceedings be transferred to the Federal Circuit Court at its Brisbane registry.
If the Queensland Magistrates Court makes an order or orders transferring the proceedings referred to in order 1, those proceedings be docketed to Judge Jarrett.
Proceeding no. SYG1009/2019, proceeding no. BRG677/2019, and, if by then they have been transferred to the Brisbane registry of the Federal Circuit Court of Australia, the proceedings referred to in order 1, be listed for directions before Judge Manousaridis at 9.30 am on 4 October 2019.
The parties in the proceedings referred to in order 3 have liberty to apply on such notice as the circumstances warrant.
THE COURT NOTES THAT
The parties may appear at the directions hearing referred to in order 3 by telephone if they give notice of their intention to so appear and if they provide their telephone contact details.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1009 of 2019
| CABA (AUST) PTY LTD |
Plaintiff
And
| SECURE CALL PTY LTD |
Defendant
| GOLD COAST CITY MARINA PTY LTD (ACN 083 695 283) |
First Interested Party
| ANIMAL LOGIC GROUP PTY LTD (ABN 84 096 692 732) |
Second Interested Party
| GRANT SCURRAH |
Third Interested Party
REASONS FOR JUDGMENT
Introduction
Before the Court is a proceeding (Sydney FCC proceeding) that arises out of a collision that occurred at the Gold Coast City Marina (Marina) on 17 March 2017.[1] The collision was between “Little Eagle” (Little Eagle), a vessel the plaintiff (CABA) claims it owns, a number of other vessels, and property that formed part of the Marina (Marina property). CABA alleges the collision occurred because Little Eagle failed to respond, or failed to respond as it ought to have responded, to commands that the person who was then operating it, Mr Willcox, gave at its control room; and Little Eagle failed to so respond because of what CABA claims was deficient electrical work the defendant (Secure Call) had previously carried out on Little Eagle.
[1] In a paragraph of the statement of claim, and in CABA’s written submissions to which I refer later in these reasons, it is stated that the collision occurred on 17 March 2018. That appears to be an error.
The matter first came before me on 30 April 2019. On that day Mr McBride, who appeared for CABA, informed me that Secure Call had not yet been served with the application and statement of claim. Mr McBride also informed me there are proceedings in other courts arising out of the collision. Mr McBride suggested that the claims made in the other proceedings may need to be joined in the Sydney FCC proceeding. I adjourned the matter to 25 June 2019 for further directions.
At the directions hearing on 25 June 2019, at which Secure Call appeared by its solicitor, Ms Bure, Mr McBride provided further information about the other proceedings. I directed Secure Call file a defence by 30 July 2019. I also directed that CABA provide to my associate a short submission identifying all proceedings arising out of the collision, together with at least a copy of the pleadings filed in those proceedings. I otherwise adjourned the proceeding for further directions to 2 August 2019, which was later rescheduled to 9 August 2019.
In the meantime, on 5 July 2019 CABA, through its lawyers, provided to my associate submissions identifying three other proceedings arising out of the collision. One is the proceeding commenced by the owner of the Marina, Gold Coast City Marina Pty Ltd (GCC Marina), against Mr Willcox in the Brisbane registry of the Federal Court of Australia in which it claims that Little Eagle collided with its property and with other vessels because of Mr Willcox’s negligence and his failure to comply with statutory duties. On 3 June 2019 that proceeding was remitted to this Court’s Brisbane registry where it currently resides (FCC Brisbane proceeding). The other two proceedings (Queensland Magistrates Court proceedings) were commenced against Mr Willcox in the Queensland Magistrates Court, one by Mr Scurrah, and the other by Animal Logic Group Pty Ltd (ALG). Mr Scurrah and ALG each own a vessel with which Little Eagle collided.
At my direction, by email sent on 1 August 2019, my associate requested CABA’s lawyers send a letter in the following terms to GCC Marina, Mr Scurrah, and ALG.
1.We act for CABA (Aust) Pty Ltd (CABA), and are sending you this letter at the request of Judge Manousaridis, a judge at the Sydney Registry of the Federal Circuit Court of Australia.
2.CABA commenced a proceeding in the Sydney registry of the Federal Circuit Court of Australia (Court) against Secure Call Pty Ltd (Secure Call). The proceeding arises out of a collision (Collision) that occurred at the Gold Coast City Marina (Marina) on 17 March 2017. The Collision was between a vessel CABA claims it owns (Vessel), a number of other vessels, and property of the Marina itself. We enclose a copy of the application and statement of claim.
3.There are three other proceedings that arise out of the Collision. One is a proceeding the owner of the Marina, Gold Coast City Marina Pty Ltd (GCC Marina), commenced against Mr Wilcox in the Brisbane registry of the Federal Court (No.QUD296/2019). By the operation of orders made by Derrington J on 3 June 2019 the matter that constituted the proceeding before the Federal Court has been remitted to the Brisbane Registry of the Court. The second and third proceedings have been commenced by Mr Scurrah and by Animal Logic Group Pty Ltd (ALG) respectively against Mr Wilcox in the Magistrates Court of Queensland (No. M1345/9 and No. M1346/9 respectively). We enclose a copy of the pleadings filed in each of these proceedings, and a copy of the order made by Derrington J.
4.The matter is before Judge Manousaridis for directions at 9.30 am on 9 August 2019. On that day his Honour proposes to appoint a time and date to hear submissions on the following questions:
(a)Do the claims made in the four proceedings identified above constitute a single “matter”, with the consequence that the Court has jurisdiction to determine that “matter” in one proceeding?
(b)Assuming (a) is answered in the affirmative:
(i) By what mechanism should the claims made by Mr Scurrah and ALG in the Magistrates Court proceedings be brought before the Court so that the Court may determine as one “matter” the claims made in those proceedings together with the claims made in the proceedings that are already before this Court?
(ii) Should the “matter” be heard in the Sydney Registry or in the Brisbane Registry of the Court?
(iii) When should an order under r.8.01 of the Federal Circuit Court Rules 2001 (Cth) be made to give effect to the Court having jurisdiction over a single “matter” that is constituted by the claims made in the four proceedings referred to above?
(d)Irrespective of the answers to (a) and (b), should the proceedings pending in this Court be transferred to the Magistrates Court under s.27 of the Admiralty Act 1986 (Cth)?
5.If you wish to make submissions in relation to any of these questions, you should give notice of your intention either by attending the directions hearing at 9.30 am on 9 August 2019 either in person or by telephone (after making arrangements with the Associate to Judge Manousaridis), or by sending before that day an email to the Associate to Judge Manousaridis and to the legal representatives of the parties in this proceeding.
CABA’s lawyers sent a letter in these terms to GCC Marina, Mr Scurrah, and ALG who appeared by their legal representatives at the directions hearing on 9 August 2019. At that hearing all parties agreed the claims made in the four proceedings should at the very least be heard and determined together. The parties, however, disagreed about the venue at which that should occur. CABA submitted the claims should be heard in the Sydney registry of this Court; Secure Call made no submission one way or the other; GCC Marina submitted the proceedings should be heard and determined by this Court at its Brisbane registry; and Mr Scurrah and ALG submitted the claims should be heard and determined in Brisbane, either by this Court or by the Queensland Magistrates Court.
I suggested to the parties that it may be premature to determine the question of the venue at which the claims should be heard and determined because the issues on the pleadings have not yet been identified, and evidence has not been filed. That did not induce any consensus among the parties about the venue at which the claims should be heard or determined, or about the time at which a decision about the appropriate venue should be made. I therefore directed the parties provide written submissions and affidavits in relation to the question of the appropriate venue. The parties have done so.
In these reasons for judgment, therefore, I consider whether it is appropriate that I now decide the venue at which the claims should be heard and determined, and, if so, consider the venue at which the claims made in the four proceedings should be heard and determined. Before I consider these questions, however, it would be useful to:
a)describe the claims made in the various proceedings, the defences that have been filed in two of the proceedings, and the issues that arise or may arise;
b)assuming the four proceedings will be consolidated or will otherwise be heard and determined together, consider how the proceedings might be constituted and the order in which evidence might be filed; and
c)consider whether, as the parties have assumed, I have power to order that all four proceedings be consolidated or heard and determined together in any one court.
The claims and defences
Claims and defence in Sydney FCC proceeding
CABA has set out its claims in a statement of claim as follows:
a)CABA was the owner or, in the alternative, the bailee of Little Eagle.
b)In early March 2017 CABA and Secure Call entered into a contract (Contract) under which Secure Call agreed to conduct electrical repairs on Little Eagle.
c)The Contract was subject to a guarantee implied by s.60 of Schedule 2 to the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) that Secure Call would render services under the Contract with due care and skill.
d)The Contract was also subject to a guarantee implied by s.61 of the Australian Consumer Law that the services Secure Call agreed to provide under the Contract would be fit for the purpose for which CABA engaged Secure Call to provide those services.
e)From 13 to 17 March 2017 Secure Call carried out work (Work) to Little Eagle’s electrical components in its engine room while it was moored at the Marina.
f)Secure Call owed CABA “a duty of care with respect to the provision” of the Work.
g)After it provided the services, a representative of Secure Call confirmed to a representative of CABA, Mr Willcox, that the propulsion controls in Little Eagle were fully operational, and Little Eagle was able to leave its berth safely, and commence its journey back to New South Wales.
h)After receiving this confirmation, Mr Willcox attempted to leave the Marina, but became involved in a multi-vessel collision that included Little Eagle’s colliding with the berth of the Marina. The collision occurred because Little Eagle did not respond appropriately to movement commands from Little Eagle’s control room, and because Little Eagle acted erratically and contrary to expectation.
i)Little Eagle did not respond appropriately, act normally, or operate according to expectation, because Secure Call rendered the Work without due care and skill, “in a manner not fit for purpose”, and negligently. In particular, Secure Call:
i)incorrectly wired the starboard main engine zero fuel switch such that the gearbox would not operate as required or expected;
ii)incorrectly set the port main engine propulsion timer; and
iii)wired the solenoid in the port main engine to the incorrect terminals.
j)As a consequence of the matters referred to in (i) CABA suffered loss and damage.
In its defence Secure Call:
a)does not admit CABA was the owner or bailee of Little Eagle;[2]
[2] Response, [1]
b)denies CABA was a “consumer” for the purposes of the Australian Consumer Law;[3]
[3] Response, [2]
c)admits it ordinarily engaged in the business of conducting marine electrical work and repairs;[4]
[4] Response, [4]
d)says it issued invoices to Mr Willcox, but not to CABA;[5]
[5] Response, [5.c.]
e)admits that on 13 March 2017 Mr Willcox contacted Mr Daniel Rouget of Secure Call informing him that Little Eagle was experiencing various electrical problems with its 3 phase power supply;[6]
[6] Response, [9.c.]
f)admits Mr Rouget carried out electrical works to the 3 phase power supply;[7] but denies:
[7] Response, [9.d.]
i)it was engaged to replace or rewire the starboard main engine zero fuel switch;[8]
[8] Response, [13.b.]
ii)it replaced or rewired the starboard main engine zero fuel switch;[9]
[9] Response, [13.c.]
g)says that on or about 13 March 2017 Mr Willcox informed Mr Rouget that Little Eagle was experiencing electrolysis issues, and Mr Rouget suggested Mr Willcox leave Little Eagle for 7 days then turn off all power on Little Eagle for 24 hours at which time tests could be carried out to identify any electrolysis problems, but Mr Willcox declined this option;[10]
[10] Response, [10.c.], [10.d.]
h)says that on 16 March 2017 Mr Willcox informed Mr Rouget he would replace the starboard main engine zero fuel switch;[11] and that on 16 or 17 March 2017 Mr Willcox informed Mr Rouget that he had replaced the starboard main engine zero fuel switch;[12]
[11] Response, [13.d.]
[12] Response, [13.e.]
i)says that on 16 and 17 March 2017 Mr Rouget expressed concerns to Mr Willcox about the safety of operating Little Eagle;[13]
[13] Response, [10.j.]
j)says that on 17 March 2017:
i)Mr Rouget conveyed to Mr Willcox on several occasions that a safe propulsion test needed to be done, and that the tests of the zero fuel switch had no proven outcome;[14]
[14] Response, [10.f.], [10.g.]
ii)Mr Rouget recommended to Mr Willcox that a mechanic be engaged to inspect the fuel governor because the tests of the zero fuel switch had no proven outcome;[15]
[15] Response, [10.h.]
iii)Mr Rouget told Mr Willcox that Little Eagle should be secured to the dock as a minimum to prevent loss of control during the propulsion testing, but Mr Willcox refused this option;[16]
[16] Response, [10.k.]
iv)Mr Rouget expressed concerns to Mr Willcox about the safety of operating Little Eagle;[17]
v)Secure Call tested the starboard main engine zero fuel switch with no proven outcome that the controls would work properly;[18]
vi)Mr Rouget conveyed to Mr Willcox that there was no proven outcome that the controls would work properly, and recommended the engagement of a mechanic to test the fuel governor;[19]
vii)a mechanic informed Mr Willcox that “the fault with the fuel governor may have been caused by a possible oil leak past the piston”;[20]
viii)Mr Rouget told Mr Willcox before and after the mechanic conveyed the potential issues with the fuel governor that a safe propulsion test needed to be done, that the fuel governor was moving by itself changing the state of the zero fuel switch and that Secure Call’s tests of the zero fuel switch had no proven outcome;[21]
ix)after Secure Call looked at the approved drawings and recommended time settings, which was approximately 2 seconds,[22] and corrected the timer setting to 2 seconds,[23] Mr Rouget informed Mr Willcox that the vessel would handle differently as a result of the timers it corrected to 2 seconds;[24]
k)says it was not engaged to conduct the propulsion testing of Little Eagle,[25] or to correct or install new timers on Little Eagle;[26]
l)says that at the time Secure Call provided its services, the port main engine propulsion timer was already incorrectly set; about half of the time relays had been replaced with homemade timer relays; and all timer relays were set incorrectly at different times;[27] and
m)says that the solenoid in the port main engine was already incorrectly wired to the incorrect terminals at the time Secure Call provided its services,[28] and that Mr Rouget informed Mr Willcox that the solenoid in the port main was already wired in reverse, and that is how Mr Willcox drove the vessel on one motor.[29]
[17] Response, [10.j.]
[18] Response, [13.g.]
[19] Response, [13.h.]
[20] Response, [13.i.]
[21] Response, [13.j]
[22] Response, [13.n.]
[23] Response, [13.o]
[24] Response, [13.p]
[25] Response, [13.k.]
[26] Response, [13.l.]
[27] Response, [13.m.]
[28] Response, [13.q.]
[29] Response, [13.r.]
Secure Call also says that the collision was due to Mr Willcox’s negligence, and failure to comply with the standards of care required by the Transport Operations (Marine Safety) Act 1994 (Qld) (TO Act) and the Transport Operations (Marine Safety) Regulation 2016 (Qld) (TO Regulation).[30] Secure Call does not identify the standards provided for by the TO Act or the TO Regulation which it alleges CABA or Mr Willcox are alleged to have contravened.
[30] Response, [11]
Finally, Secure Call says that if, contrary to what it has pleaded, it is found liable in general negligence for the loss or damage as alleged by CABA:[31]
a)the claims made against it in the FCC Sydney proceeding is an “apportionable claim” within the meaning of s.31 of the Civil Liability Act 2003 (Qld) (Qld CL Act);
b)Mr Willcox is a “concurrent wrongdoer” within the meaning of s.30 of the Qld CL Act; and
c)the damage and loss CABA has suffered occurred as a result of the negligence of Mr Willcox.
[31] Response, [22]
Claims and defence in Brisbane FCC proceeding
In its statement of claim GCC Marina alleges it operated the Marina; the Marina consisted of three pontoons, the B-Arm, the C-Arm, and the D-Arm pontoons; Mr Willcox was the registered owner of Little Eagle; at all material times Mr Willcox owed GCC Marina a duty (among others) to exercise reasonable care and skill in the operation of Little Eagle, and to keep Little Eagle under control; and that, in the alternative, Mr Willcox owed GCC Marina duties of care to comply with the standards required by the TO Act, and the TO Regulation. The statement of claim further alleges that on 17 March 2017, at approximately 11.45 am, Little Eagle was involved in a collision as follows:
a)Little Eagle was departing the Marina, under the control of Mr Willcox, from jetty B;
b)Little Eagle proceeded eastwards towards the Coomera River at which time Little Eagle had veered portside colliding with, among other things, the Marina;
c)Little Eagle then lurched forward, travelling at considerable speed, back towards the Marina at which time it collided with the end pontoon and concrete file at D-Arm of the Marina; and
d)Little Eagle further collided with C-Arm of the Marina at which time the Vessel came to a stop.
GCC Marina alleges that, as a consequence of the collision, the Marina property sustained damage that includes the damage described in paragraph 9 of the statement of claim, and that it has suffered loss totalling $62,914 (excluding GST). Finally, GCC Marina claims damages for negligence or, in the alternative, for breach of statutory duty.
There are two observations that may be made about the statement of claim. First, it does not expressly allege that the collision it describes was caused by Mr Willcox’s breaches of the duties of care alleged in the statement of claim; and it does not specifically plead the acts or omissions that it alleges constitute a breach or breaches by Mr Willcox of the duties of care alleged in the statement of claim. The statement of claim pleads Mr Willcox owed GCC Marina a duty of care, and it pleads the facts that comprise the collision; and it claims damages for negligence.
There is nothing illegitimate about proceeding in this way; GCC Marina is presumably relying on the process of reasoning that is denoted by the Latin maxim “res ipsa loquitur”. The meaning of that expression was considered by Windeyer J in Anchor Products Ltd v Hedges:[32]
[F]or Australian courts the phrase res ipsa loquitur denotes a fact from which, if it be unexplained, it is permissible to infer negligence: but that the onus in the primary sense - that is the burden of proving the case against the defendant - remains with the plaintiff. To say that an accident speaks for itself does not mean that if no evidence is given for the defendant the plaintiff is entitled in law to a verdict in his favour. The occurrence speaks of negligence, but how clearly and convincingly it speaks depends upon its circumstances.
[32] (1966) 115 CLR 493, at page 133. This passage was quoted with approval by Gleeson CJ and McHugh J in Schellenberg v Tunnel Holdings Pty Limited [2000] HCA 18, at [22]
In Schellenberg v Tunnel Holdings Pty Limited Gleeson CJ and McHugh J said (references omitted):[33]
What flows from these statements of principle is that, while res ipsa loquitur may ameliorate the difficulties that arise from a lack of evidence as to the specific cause of an accident, the inference to which it gives rise is merely a conclusion that is derived by the trier of fact from all the circumstances of the occurrence. When it applies, the trier of fact may conclude that the defendant has been negligent although the plaintiff has not particularised a specific claim in negligence or adduced evidence of the cause of the accident. . . .
Piening v Wanless and Anchor Products Ltd v Hedges as well as other cases in this Court make it clear that a plaintiff may rely on res ipsa loquitur even though he or she has also pleaded particular acts or omissions of negligence on the part of the defendant provided that the tribunal of fact concludes that: (1) there is an “absence of explanation” of the occurrence that caused the injury; (2) the occurrence was of such a kind that it does not ordinarily occur without negligence; and (3) the instrument or agency that caused the injury was under the control of the defendant.
[33] [2000] HCA 18, at [24]
The second observation about the statement of claim relates to GCC Marina’s reliance on the TO Act and the TO Regulation. As with Secure Call’s response, GCC Marina does not identify the standards provided for by the TO Act and the TO Regulation that it alleges Mr Willcox contravened.
Mr Willcox filed a defence in which he:
a)says that CABA, not Mr Willcox, is the owner of Little Eagle;
b)admits he owed a duty to act reasonably;
c)admits that on 17 March 2017 Little Eagle was departing the Marina, but says that Mr Willcox did not have the requisite control over Little Eagle due to the negligence of a servant, agent, or employee of Secure Call; and
d)says that any collision, therefore, that occurred between Little Eagle and the Marina was not due to any negligence by Mr Willcox, but was due to the negligence of Secure Call in failing to ensure that Little Eagle operated correctly, normally, and according to expectation.
Mr Willcox also says that if he is found liable in negligence for the loss and damage alleged by GCC Marina, the proceedings are an “apportionable claim” for the purposes of s.31 of the Qld CL Act; Secure Call is a “concurrent wrongdoer” within the meaning of s.30 of the Qld CL Act; and the damage and loss GCC Marina alleges it suffered occurred as a result of the negligence of Secure Call.
The Queensland Magistrates Court proceedings
There are two proceedings in the Queensland Magistrates Court. One is a proceeding commenced on 26 March 2019 by Mr Scurrah against Mr Willcox (Scurrah proceeding). In the statement of claim filed in that proceeding, Mr Scurrah alleges as follows:
a)Mr Scurrah was the owner of a 1989 Privilege Catamaran vessel (Scurrah Vessel), and Mr Willcox was the owner of Little Eagle.
b)On about 17 March 2017 Little Eagle was at the fuel berth in the Marina, and when it left the berth, it lost control while still in the Marina and collided with numerous vessels located within the Marina, including the Scurrah Vessel.
c)At all material times Mr Willcox owed Mr Scurrah a duty of care and skill in operating and mastering Little Eagle, but Mr Willcox breached that duty of care by, among other things, failing to keep a proper lookout, and failing to keep Little Eagle under proper control.
d)As a result of the collision, Mr Scurrah suffered loss and damage in that he spent $68,820.27 to repair the damage done to the Scurrah Vessel.
The second proceeding is also against Mr Willcox, and it has been brought by ALG (ALG proceeding). It alleges it is the owner of the vessel known as “Ocean Suite” (ALG Vessel), and makes substantially the same allegations as Mr Scurrah makes, except that it claims it suffered damage in the amount of $15,598 (excluding GST).
Mr Willcox has not filed a defence in the Queensland Magistrates proceedings, but it is reasonable to expect that he will file a defence that reflects the defence he has filed in the Brisbane FCC proceeding. It is also reasonable to expect that Mr Willcox will file cross-claims against Secure Call seeking an indemnity for any liability he may be found to have to Mr Scurrah or ALG.
Issues
There is no question that the collision consisted of Little Eagle colliding with the Marina property, and with the Scurrah and ALG vessels. Given this common ground, a number of questions or sets of questions arise or may arise.
The first is whether, in the period leading up to the collision, Mr Willcox used or attempted to use the controls in Little Eagle in the manner he ought reasonably to have used them to properly navigate Little Eagle, but the controls failed to respond, or they failed to respond in the manner Mr Willcox ought reasonably to have expected they would respond. If that question is answered in the affirmative, that may provide an answer to GCC Marina’s claims, as currently pleaded, because the answer might reasonably be capable of providing an explanation for the accident that is consistent with Mr Willcox exercising due care. An affirmative answer to this question might also be reasonably capable of affording an answer to the claims made by Mr Scurrah and ALG because it may eliminate as a cause of the collision that which they allege caused it, namely, Mr Willcox’s negligent control of, or negligent failure to control, Little Eagle.
An affirmative answer to the first question, however, will not necessarily mean CABA will succeed against Secure Call. It is possible that the controls did not respond in the manner Mr Willcox says he expected them to respond for reasons other than those he alleges against Secure Call. That gives rise to a second question or set of questions, and that is whether CABA will succeed in its claims against Secure Call. The determination of that question will depend on whether the controls failed to respond to Mr Willcox’s actions in the manner he claims they failed to respond, and whether they failed to respond for the reasons he claims they failed to do so, namely, that Secure Call incorrectly wired the starboard main engine zero switch, it incorrectly set the port main engine timer, and it wired the solenoid in the port main engine to the incorrect terminals.
A third potential question or set of questions arises from the circumstance that Secure Call’s defence is not limited to denying CABA’s claims; Secure Call alleges affirmative matters which, if accepted, might reasonably be capable of supporting a finding that even if the collision was due to Little Eagle’s not responding to Mr Willcox’s use of the controls, or was due to its not responding in the manner it ought reasonably to have responded, Mr Willcox had knowledge of matters that ought reasonably to have led him not to attempt to navigate Little Eagle on the occasion he did without his first acting on those matters Secure Call alleges it conveyed to him. If established, these might be matters on which each of GCC Marina, Mr Scurrah, and ALG might wish to rely in the alternative to the matters on which they rely in their statements of claim, as currently framed.
The fourth question might arise if both Mr Willcox or CABA or both, on the one hand, and Secure Call, on the other, are held to have breached a duty of care they both owed to any one or more of GCC Marina, Mr Scurrah, or ALG and, for that reason, would be considered to be “concurrent wrongdoers” within the meaning of s.30 of the Qld CL Act. In that case, s.31 of the Qld CL Act would apply to limit liabilities of Mr Willcox or CABA or both, on the one hand, and Secure Call “to an amount reflecting that proportion of the loss or damage claimed that the court considers just and equitable having regard to the extent of [his or its] responsibility for the loss or damage”.
Constitution of proceeding and order of proceeding
If the claims made in all of the proceedings were heard together, all parties who are plaintiffs would remain plaintiffs. Given the issues that have already arisen in the proceedings, it is reasonable to expect there will be further pleadings. First, it is reasonable to expect that Mr Willcox might seek to file cross-claims against Secure Call for an indemnity to the extent he may be held liable on the claims GCC Marina, Mr Scurrah, and ALG make against him. It is also reasonable to expect that each of GCC Marina, Mr Scurrah, and ALG might seek leave to amend their statements of claim to plead as additional or alternative claims matters Secure Call has affirmatively alleged in its response to CABA’s claims. It is also possible that each of GCC Marina, Mr Scurrah, or ALG may consider amending their statements of claim to make a direct claim against Secure Call by relying on the same matters on which CABA relies for claiming that Secure Call performed defective work, and that it is the alleged defective work that caused the collision.
In these circumstances, assuming the claims in all proceedings would be heard and determined together, one logical course of pre-trial steps might be as follows:
a)Mr Willcox would first be given an opportunity to file cross-claims against Secure Call, and Secure Call would be given an opportunity to file a defence to each cross-claim.
b)Given there is no question that a collision occurred on 17 March 2017 at the Marina, and that it was Little Eagle that collided with the Marina property, and the Scurrah and ALG vessels, CABA and Mr Willcox should first file evidence that deals with the collision. It is reasonable to expect that the evidence would at the very least seek to do the following:
i)Set out an account of the events that led to the collision. It is reasonable to expect that this account would identify the controls Mr Willcox says he attempted to use; the expectation Mr Willcox held on each occasion he used the controls; and whether, and if so the extent to which, his expectation was not fulfilled on each occasion he used each control.
ii)Set out an account of the dealings between Mr Willcox (and any other persons whom CABA may allege acted on its behalf) and representatives of Secure Call in connection with the work Secure Call carried out on Little Eagle. It is reasonable to expect that this account would set out the work CABA requested Secure Call carry out, the work Secure Call carried out, and any conversation relating to the work that was or that was to be carried out by Secure Call.
iii)Seek to establish that, as alleged in CABA’s statement of claim, Secure Call incorrectly wired the starboard main engine zero fuel switch; it incorrectly set the port main engine propulsion timer; and it wired the solenoid in the port main engine to the incorrect terminals.
iv)Seek to establish a link between the matters referred to in (iii) and Mr Willcox’s use of the controls which he says did not respond in the manner he expected them to respond.
c)Secure Call would then file evidence that responds to the evidence of CABA and which supports the positive matters on which it relies in its response.
d)The matter would then be brought back for directions. At that stage GCC Marina, Mr Scurrah, and ALG could inform the Court whether they wish to file amended statements of claim. If so, assuming there is no objection, directions will be made to that end as well as directions for the filing of defences; and, whether or not they propose to file an amended statement of claim, GCC Marina, Mr Scurrah, and ALG would be directed to file their evidence, including evidence of loss, and CABA, Mr Willcox, and Secure Call would be directed to file their evidence in reply.
Power to have all claims heard in one proceeding
The parties have assumed this Court has power to order the transfer to this Court of the Scurrah and the ALG proceedings, or they have otherwise assumed there is a mechanism available for the transfer into this Court of those proceedings. The parties, however, have not identified the source of power or the mechanism by which this may be done.
I begin with the observation that the claims CABA makes against Secure Call, and the claims GCC Marina, Mr Scurrah, and ALG make against Mr Willcox are each a “general maritime claim” within the meaning of s.4(3) of the Admiralty Act 1988 (Cth) (Act). That subsection identifies a number of claims that are each defined to mean a “general maritime claim”. Relevant to the proceedings brought by each of GCC Marine, Mr Scurrah, and ALG is s.4(3)(a) of the Act, namely, “a claim for damage done by a ship (whether by collision or otherwise)”. Relevant to CABA’s claims is s.4(3)(m) of the Act, which includes as a general maritime claim “a claim in respect of goods, materials or services . . . supplied or to be supplied to a ship for its operation or maintenance”.
The significance of all these claims being “genuine maritime claims” is that the Act confers federal jurisdiction on the courts it identifies to determine such claims. The central provision is s.9(1) of the Act, which provides that jurisdiction “is conferred on the Federal Court, the Federal Circuit Court and on the courts of the Territories”, and “the courts of the States are invested with federal jurisdiction, in respect of proceedings commenced as actions in personam . . . on a maritime claim”. That subsection should be read with s.39(2) of the Act which provides:
Where a court of a State is invested with jurisdiction in relation to a proceeding commenced under section 9 or such jurisdiction is conferred on a court of a Territory, the jurisdiction is invested or conferred within the limits of the jurisdiction of the court concerned and, in the case of a court of a Territory, only so far as the Constitution permits.
Both this Court and the Queensland Magistrates Court have or could have jurisdiction in relation to each of the claims made in the four proceedings. Relevant to the jurisdiction of the Queensland Magistrates Court is s.4 of the Magistrates Courts Act 1921 (Qld) which provides that the Queensland Magistrates Court has jurisdiction in relation to “every action brought to recover a sum of not more than the prescribed limit”. Section 2 provides that the prescribed limit is $150,000. In none of the four proceedings does a plaintiff claim more than $150,000.
Next, it is necessary to refer to s.27(1) of the Act, which provides for the transfer of proceedings between courts:
Where a proceeding commenced under this Act is pending in the Federal Court, in the Federal Circuit Court, in the Supreme Court of a State or Territory or in a court of a State or Territory exercising jurisdiction under section 11, the court (in this section called the first court) may, at any stage of the proceeding, upon application or on its own motion, by order, transfer the proceeding to some other court that has jurisdiction under this Act with respect to the subject-matter of the claim (in this section called the second court).
Subsection 27(1) of the Act empowers this Court to transfer the Sydney FCC and the Brisbane FCC proceeding to the Queensland Magistrates Court. It does not, however, empower the Queensland Magistrates Court to transfer the Scurrah and the ALG proceedings to this Court. That is so because the only State court, other than a State Supreme Court, to which s.27(1) of the Act applies is a State court exercising jurisdiction under s.11 of the Act. Subsection 11(2) provides for the investing of jurisdiction in a court of a State or Territory that has been declared by proclamation for that purpose “in respect of proceedings that may, under this Act, be commenced as actions in rem”. Although it is conceivable that each of Mr Scurrah and ALG could have pursued their claims by commencing actions in rem under s.17 of the Act, no proclamation has been made under s.11 of the Act investing the Queensland Magistrates Court with jurisdiction over actions in rem.
Next, it is relevant to refer to s.40 of the Act, which provides:
All courts having jurisdiction under this Act, the judges of those courts and the officers of or under the control of those courts shall severally act in aid of, and be auxiliary to, each other in all matters arising under this Act.
In my opinion, the expressions “in aid of”, and “be auxiliary to” are wide enough to confer power in a court that has jurisdiction under the Act in relation to a proceeding based on an action in personam or in rem to transfer that proceeding to another court that also has jurisdiction under the Act. That construction is supported by the fact that jurisdiction under the Act, being federal jurisdiction, can only be exercised in relation to a “matter”, as that word is used in Chapter III of the Constitution. It is possible that two or more proceedings may be commenced under the Act in two or more courts having jurisdiction under the Act, and yet the two or more proceedings may constitute “one matter”.[34] At least where it has been brought to the attention of one or more courts that there are on foot two or more proceedings in separate courts, and that the proceedings form but one matter, it would be the duty of the courts to ensure that jurisdiction is exercised over the matter by the court that otherwise would have jurisdiction to determine the matter. And where two or more courts would have jurisdiction to hear the matter, then it would be a matter for each court to determine which of them should determine it.
[34] See Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511
In the light of this discussion, there are a number of mechanisms available for bringing before one judge of one court all four proceedings. Each mechanism requires two steps. The first is making an order transferring the Brisbane FCC proceeding to the Sydney registry of this Court or an order transferring the Sydney FCC proceeding to the Brisbane registry of the Court, or having the two proceedings docketed to the one judge, whether that judge is in Sydney or in Brisbane. The second step is either this Court making an order under s.27(1) of the Act transferring the Brisbane and Sydney FCC proceedings to the Queensland Magistrates Court or, in response to a request from this Court, the Queensland Magistrates Court making an order under s.40 of the Act in each of the Scurrah and the ALG proceedings transferring those proceedings to this Court, either to its Sydney or Brisbane registry.
Parties’ submissions
As I noted at the beginning of these reasons, there is a dispute between CABA and Mr Willcox, on the one hand, and GCC Marina, Mr Scurrah, and ALG, on the other hand, about the venue at which the claims should be heard and determined. CABA submits the Sydney FCC proceeding is the “primary proceedings” because the critical question that arises in that proceeding is “whether the liability for the collisions resides with the defendant due to electrical works allegedly undertaken on” Little Eagle,[35] and this question “is also the critical question to be determined” in the other three proceedings, further submitting that “once it is determined where fault resides for the vessel’s actions, the only remaining issue is notionally a question of quantum”[36] CABA further submits that the FCC Brisbane and the Queensland Magistrates Courts proceedings be stayed pending the determination of CABA’s claim against Secure Call.
[35] Applicant’s Submissions, [5]
[36] Applicant’s Submissions, [6]
CABA also submits that, whatever course is taken, all four claims should be heard in Sydney. CABA relies on “the plaintiff” being located in Sydney, and has elected to commence proceeding in Sydney; Secure Call neither objects nor consents to the matter being heard and determined in Brisbane; all parties other than CABA have solicitors that have offices in Sydney, whereas CABA’s solicitors do not have an office in Brisbane; and the matter is likely to be dealt with more expeditiously in Sydney, given that the Brisbane FCC proceeding is next listed before Judge Jarrett on 22 November 2019.
GCC Marina, on the other hand, submits that the determination of the issues in the FCC proceeding will not necessarily resolve the issues in the other three proceedings.[37] GCC Marina further submits that all four proceedings should be heard in Brisbane because the cause of action arose in Queensland, the parties reside there, and so do most of the persons who are likely to be witnesses.[38] Mr Scurrah and ALG have made a joint submission that all four proceedings should be consolidated either in the Brisbane registry of this Court or in the Queensland Magistrates Court in Brisbane.
[37] Submissions of Gold Coast City Marina Pty Ltd [15]
[38] Submissions of Gold Coast City Marina Pty Ltd [17]
Should there be a stay of the Queensland proceedings?
It is reasonably arguable that if CABA on its claim, and Mr Willcox on any cross-claims he may file, succeed against Secure Call, this will defeat the claims GCC Marina, Mr Scurrah, and ALG make in their statements of claim, as they currently stand. Further, even if CABA and Mr Willcox do not succeed on their claims against Secure Call, it is possible that this too may defeat the claims GCC Marina, Mr Scurrah, and ALG make in their statements of claim, as they currently stand. That is so because, as I have already noted, each of those claims are potentially liable to be defeated if it is established that the collision occurred, not because Mr Willcox was negligent in his navigation of Little Eagle, but because Little Eagle did not respond to the controls Mr Willcox used in the manner he was reasonably entitled to expect they would respond; and that the failure of the controls to so respond was not attributable to anything Secure Call is alleged to have done or failed to do.
It is therefore possible that each of GCC Marina, Mr Scurrah, and ALG might wish to consider amending their statements of claim to take into account the possibility that CABA and Mr Willcox will succeed in their claims against Secure Call, and, in the alternative, take into account the possibility that CABA and Mr Willcox will not succeed in their claims against Secure Call, but Secure Call will prove the affirmative matters on which it relies. If that were to occur, the determination of CABA’s and Mr Willcox’s claims against Secure Call would not necessarily determine the claims GCC Marina, Mr Scurrah, and ALG’s make against Mr Willcox. The determination of those issues might only provide the basis for making additional or alternative claims to the claims they currently plead in their statements of claim.
In these circumstances it would be premature for me to determine at this stage whether CABA’s claims against Secure Call should be determined before I determine the claims GCC Marina, Mr Scurrah, and ALG make or may make. That question may be revisited after all pleadings have been filed or after all pleadings have been filed and CABA and Secure Call file their evidence.
Venue
On the face of the material that is before me, assuming all four proceedings are heard and determined together, it appears that the balance of convenience strongly favours all proceedings being heard and determined together in one court in Brisbane. In my opinion, however, it would be premature to make a decision about where the claims made in the proceedings should be heard and determined until at least after all pleadings have been filed and, possibly, until after CABA and Secure Call file their evidence.
Transfer of Queensland Magistrates Court proceedings
Nothing has been put to me that suggests that there would be any advantage in having all four proceedings heard in the Queensland Magistrates Court rather than in this Court. Given the potential procedural complexity of hearing all four proceedings together, I am satisfied that it would be more convenient if all four proceedings were heard in this Court, rather than in the Queensland Magistrates Court, and, for that reason, the Scurrah and the ALG proceedings should be transferred to this Court. I do not, however, have power to order that the Scurrah and the ALG proceedings be transferred to this Court. On my construction of s.40 of the Act, whether those proceedings should be transferred is a matter within the power and discretion of the Queensland Magistrates Court. The most I can do is request that the Queensland Magistrates Court consider exercising the powers conferred on it by s.40 of the Act to transfer to this Court the Scurrah and the ALG proceedings.
I propose, therefore, to order that CABA do all things that are reasonably within its power to cause Mr Willcox to apply in each of the Scurrah and the ALG proceedings for an order under s.40 of the Act that those proceedings be transferred to the Brisbane registry of this Court on the footing that it is the request of this Court that those proceedings be so transferred. I also propose to order that, if the Queensland Magistrates Court orders that the proceedings be transferred to this Court, they be docketed to Judge Jarrett, being the Judge to whom the FCC Brisbane proceeding is docketed.
Further progress after transfer
That, then, leaves the question of the further progress of the proceedings if the Scurrah and the ALG proceedings are transferred to the Brisbane registry of this Court.
I will case-manage the Sydney FCC, Brisbane FCC, and the Queensland Magistrates proceedings until further notice to the parties. To that end, I propose to order that all four proceedings be set down for a directions hearing before me at 9.30 am on 4 October 2019. The purpose of my setting the proceedings down for directions on that day is to give Mr Willcox an opportunity to apply to the Queensland Magistrates Court for an order that the Scurrah and the ALG proceedings be transferred to the Brisbane registry of this Court. The parties in all proceedings will be at liberty to apply by consent to adjourn the directions hearing to a later or earlier day, depending on whether the Queensland Magistrates Court will order that the Scurrah and ALG proceedings be transferred to the Brisbane registry of this Court and, if so, by when this will occur. Such application may be made by email to my associate.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 6 September 2019
Key Legal Topics
Areas of Law
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Civil Procedure
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Negligence & Tort
Legal Concepts
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Stay of Proceedings
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Jurisdiction
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Negligence
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Damages
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Appeal
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