Frame and Woodside Energy Ltd

[2005] AATA 997

Administrative

Appeals

Tribunal

 

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/181

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN FRAME

Applicant

And WOODSIDE ENERGY LTD

Respondent

AMENDMENT TO DECISION [2005] AATA 997

Tribunal Robin Hunt, Senior Member

Date               6 October 2006

PlaceSydney

Decision

The Tribunal amends its decision and reasons for decision published on 11 October 2005 in the manner appearing from the amended decision and supplementary reasons for decision delivered on 6 October 2006.

The Tribunal continues to find that it has jurisdiction to hear the application of John Frame.

[SGD]

Ms R Hunt
  Senior Member

AMENDED DECISION

Tribunal Robin Hunt, Senior Member

Date              6 October 2006

Place            Sydney

Decision:The tribunal finds that the Cossack Pioneer is an off-shore industry mobile unit within the meaning of s 8(3) of the Navigation Act 1912 and hence a ship within the meaning of s 6 of that Act and a prescribed ship within s 3 of the Seafarers Rehabilitation and Compensation Act 1992.

This finding does not alter the original decision reached on 11 October 2005 that the tribunal has jurisdiction to hear the application of John Frame.

[SGD]

Ms R Hunt
  Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – failure by tribunal to address further issue not articulated at the hearing - further consideration -  “off-shore industry mobile unit” – tribunal not functus officio as regards that issue - finding that vessel is an off-shore industry mobile unit – lack of jurisdiction not established

WORDS AND PHRASES

“obtain” and “obtaining”

LEGISLATION

Acts Interpretation Act 1901 (Cth) s 15AA

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth) s 25(4)

Judiciary Act 1903) Cth s 39B

Migration Act 1958 (Cth) s 474

Seafarers Rehabilitation and Compensation Act 1992 (Cth) ss 3, 19

Navigation Act 1912 (Cth) ss 6, 8(3), 9, 9A, 10

cases

Jurisdiction

Burnet and Repatriation Commission [2005] AATA 290

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

Plaintiff S157 of 2002 v The Commonwealth [2003] 211 CLR 476

Interpretation

Newcastle City Council v GIO General Ltd (1997) 149 ALR 623

R v L (1994) 122 ALR 464

Mills v Meeking (1990) 91 ALR 16

Byrnes v R (1999) 164 ALR 520 at 542

DFC of T v Polaroid Australia Pty Ltd 71 ATC 4249

SUPPLEMENTARY REASONS FOR DECISION

6 October 2006

summary of history of the matter before the tribunal

1. On 11 October 2005 I delivered my decision in this matter on the objection to jurisdiction formulated by the respondent as an issue preliminary to the hearing of the compensation claim made by the applicant. The respondent asserted that the Cossack Pioneer was not a ship to which the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the Seafarers Act) applied. I found that the Cossack Pioneer was a ship, within the meaning of s 6 of the Navigation Act 1912 (Cth), and was a prescribed ship, within the meaning of ss 3 and 19 of the Seafarers Act, and that, on this basis, the tribunal had jurisdiction to consider the application for review of the decision contested by the respondent.

2. The respondent then applied to the Federal Court of Australia under s 39B of the Judiciary Act1903 (Cth) for an order for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). As I understand it, when the matter came before Lee J, His Honour ordered a stay of the matter pending a decision by the tribunal as to whether the Cossack Pioneer was an “off-shore industry mobile unit”, a term defined in the Navigation Act 1912.

further issues and submissions

3. The further issues before the tribunal are:

·Is the tribunal functus officio; and, if not,

·Was the Cossack Pioneer an “off-shore industry mobile unit” within the meaning of s 8(3) of the Navigation Act 1912.

Is the tribunal functus officio?

4. On 11 October 2005 I delivered my decision in this matter on the claim formulated by the respondent and addressed in reply by the applicant as to the jurisdiction of the tribunal to hear the applicant’s application for review. The respondent argued that the incident giving rise to the claim occurred outside the ambit of the Seafarers Act. The incident in question took place on board the Cossack Pioneer, a vessel converted for use in offshore operations of the respondent. The respondent contended that the Cossack Pioneer was no longer a ship and therefore not a prescribed ship for the purposes of the Seafarers Act.

5. Both parties subsequently sought leave to re-open the case before the tribunal about the undetermined issue of whether the Cossack Pioneer was an “off-shore industry mobile unit”. The term ”off-shore industry mobile unit” is defined in s 8(3) of the Navigation Act 1912. Further, an off-shore industry mobile unit comes within the definition of “ship” in s 6 of the Navigation Act 1912. The applicant contends that the Cossack Pioneer comes within the s 8(3) definition of off-shore industry mobile unit and is therefore a “ship” within the meaning of s 6 of the Navigation Act 1912 by virtue of this connection. Both parties asked the tribunal to make an amended decision to include consideration of this further issue and to provide supplementary reasons.

6. Authorities cited above concern the application of a privative clause, s 474 of the Migration Act 1958 (Cth).  Nevertheless, I have taken them into account in considering whether I have jurisdiction to deal with the previously unarticulated claim by the applicant that the Cossack Pioneer is an off-shore industry mobile unit.  On the basis of the above authorities, and in accordance with the procedure adopted by Deputy President Jarvis in the recent tribunal case of Burnet and Repatriation Commission [2005] AATA 290, I find that my omission to deal with this aspect of the case before me on 11 October 2005 constituted a failure on my part to exercise my jurisdiction as to that issue. Refusal to consider the issue now that the parties have raised it before me may amount to a jurisdictional error. I am not functus officio as regards this outstanding issue, which was not previously considered by me. I further note that the issue has bearing on the correct description or status of the Cossack Pioneer and the dependent issue of whether the tribunal has jurisdiction to hear the applicant’s substantive claim. 

7. I have noted of the judgments in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [51], [53], [63], [152] and [155] and Plaintiff S157 of 2002 v The Commonwealth [2003] 211 CLR 476 at [76]. In Bhardwaj, the Federal Court held that the Immigration Review Tribunal completed its hearing of the application for review in the absence of the applicant.  However, as observed by Deputy President Jarvis, other authorities he referred to make it clear that a failure to consider a particular aspect of a claim, which clearly arose on the material before the tribunal, constitutes a jurisdictional error and a failure to exercise jurisdiction. I agree with DP Jarvis’s conclusion that, in such circumstances, the doctrine of functus officio should not apply to the extent of the jurisdiction not exercised.

8. Under s 33 of the Administrative Appeals Tribunal Act, I have a wide discretion as to the conduct of the proceedings before me.  The parties have raised the issue of whether the Cossack Pioneer is an off-shore industry mobile unit at a resumed hearing to enable me to determine this issue only. I have expressed my view that I am not functus officio and the respondent has not opposed this course in the present case. Accordingly, my additional reasons set out below deal with whether the Cossack Pioneer is an “off-shore industry mobile unit” within the meaning of s 8(3) of the Navigation Actt and thus a “ship” within the meaning of s 6 of the Seafarers Act and a prescribed ship within the meaning of s 3 of the Seafarers Act.

9. I have also briefly explained why I have declined to make any findings on other matters the parties raised before me at the re-opened hearing. The respondent has not disputed the applicant’s assertion that the Cossack Pioneer operated in waters approximately 112 km of the coast of Karatha, that is, within the continental shelf of Australia. As well, there was no argument before me disputing that the oil and gas reservoirs described by Mr Fraser in his affidavit of 11 March 2006 were contained within the continental shelf for the purposes of s 8(3). Further submissions concerned s 19 of the Seafarers Act. Section 19(1) of the Seafarers Act provides that the Act applies to the employment of employees on a prescribed ship that is engaged in trade or commerce. Section 19(2) provides that the Act also has effect if:

(a) reference to an employer were limited to reference to a trading corporation formed within the limits of the Commonwealth.

No further finding concerning trade and commerce for the purposes of s 19(1)

10. The applicant requested that the respondent clarify its position about the relevance of whether the Cossack Pioneer and/or the respondent was engaged in trade or commerce for the purposes of s 19(1). The respondent’s counsel indicated before me that the respondent was a trading corporation and added that, therefore, “it doesn’t matter” if the Cossack Pioneer was engaged in interstate trade or commerce. As I already decided on 11 October 2005 that the Cossack Pioneer was engaged in trade or commerce, I have not re-opened my decision in this respect. I believe that the tribunal is functus officio in this regard.

No dispute that respondent a trading corporation for the purposes of s 19(2)

11. The respondent volunteered for the purposes of these proceedings that the Cossack Pioneer came within s 19(2) as a trading corporation and that its activities did not affect the tribunal’s jurisdiction other than on the issue of whether it was a prescribed ship. I note this admission for completeness and have made no finding.

The respondent has not disputed the applicant’s assertion that the Cossack Pioneer operated in waters approximately 112 km of the coast of Karatha, that is, within the continental shelf of Australia. As well, there was no argument before me disputing that the oil and gas reservoirs described by Mr Fraser in his affidavit of 11 March 2006 were contained within the continental shelf for the purposes of s 8(3).

Is the Cossack Pioneer an off-shore industry mobile unit?

12. Section 6 of the Navigation Act 1912 defines what is meant by a ship and that definition is incorporated into the Seafarers Act. For the tribunal to have jurisdiction in a particular case, an applicant employee must be employed on a prescribed ship. Prescribed ship is defined in s 3 of the Seafarers Act as a ship to which Part II of the Navigation Act applies. The argument for the respondent is that the Seafarers Act does not apply because the employees in this case were not employed on a prescribed ship. Part of that argument has already been determined by me. In my reasons for decision on 11 October 2005, I found that the vessel was self-propelled and used in navigation by water and was a ship for the purposes of s 6 of the Navigation Act. The definition of ship in s 6 also includes an off-shore industry mobile unit. I did not make a finding whether the vessel met the definition of off-shore industry mobile unit. The further issue before me is whether the Cossack Pioneer is an off-shore industry mobile unit. This term is defined in s 8(3) of the Navigation Act.

13. According to s 8(3) of the Navigation Act, a reference in this Act to an off‑shore industry mobile unit shall be read as a reference to:

  (a)  a vessel that is used or intended for use wholly or primarily in, or in any operations or activities associated with or incidental to, exploring or exploiting the natural resources of any or all of the following, namely:

(i)  the continental shelf of Australia;

(ii)  the seabed of the Australian coastal sea; and

(iii)  the subsoil of that seabed;

by drilling the seabed or its sub‑soil, or by obtaining substantial quantities of material from the seabed or its sub‑soil, with equipment that is on or forms part of the vessel;

(b)  a structure (not being a vessel) that:

(i)  is able to float or be floated;

(ii)  is able to move or be moved as an entity from one place to another; and

(iii)  is used or intended for use wholly or primarily in, or in any operations or activities associated with or incidental to, exploring or exploiting the natural resources of any or all of the following, namely:

(A)  the continental shelf of Australia;

(B)  the seabed of the Australian coastal sea; and

(C)  the subsoil of that seabed;

by drilling the seabed or its sub‑soil, or by obtaining substantial quantities of material from the seabed or its sub‑soil, with equipment that is on or forms part of the structure; or

(c)  a barge or like vessel fitted with living quarters for more than 12 persons and used or intended for use wholly or primarily in connection with the construction, maintenance or repair of off‑shore industry fixed structures.

14. The respondent, in para 8 of its s 37 statement, lodged in the tribunal on 1 April 2005, states that the Cossack Pioneer “is an off-shore industry mobile unit (OIMU) for the purposes of the Navigation Act”. However, in later written submissions, dated 22 July 2005, the respondent submitted that the Cossack Pioneer was not an OIMU. In this later submission, the respondent claimed that no equipment attached to the Cossack Pioneer was used to drill the seabed. The respondent also set out that the Cossack Pioneer was not a barge fitted with living quarters and other parts of the description in para (c). In para 31 of the submissions dated 22 July 2005, the respondent claimed that the primary function of the Cossack Pioneer was that of a pumping and processing facility. I have no reason, on the material before me, to find that the vessel is an OIMU within the description set out in para (c) of the definition.

15. The definition reproduced above sets out in para (a) that a vessel falls within the definition of an OIMU when, among other things, is used or intended for use:

by drilling the seabed or its sub‑soil, or by obtaining substantial quantities of material from the seabed or its sub‑soil, with equipment that is on or forms part of the vessel.

Similarly, a structure that is not a vessel comes within the definition under para (b)  if it is intended for use:

…exploring or exploiting the natural resources of …the seabed … by drilling the seabed or its sub‑soil, or by obtaining substantial quantities of material from the seabed or its sub‑soil, with equipment that is on or forms part of the structure…

I further note that the respondent’s materials frequently refer to the Cossack Pioneer as a vessel both in submissions and in sworn evidence, for example, in para 4 of the outline of submissions dated 8 August 2006. I shall therefore proceed on the basis that the Cossack Pioneer is a vessel rather than a structure for the purposes of the definition of an OIMU.

16. Mr Donald Fraser, in his affidavit dated 8 April 2005, furnished to the tribunal, and previously filed in the federal court of Australia, sets out that the Cossack Pioneer is “a floating vessel attached to a riser which, in turn, is attached to the seabed”. Mr Fraser is the operations manager of the respondent. Mr Fraser further swears in his affidavit that, through the riser, the vessel “extracts oil and gas from the seabed which is then processed and stored on board”. He goes on to explain that the oil is transferred to other vessels for transportation and the gas is exported from the vessel through a pipeline.

17. In his affidavit dated 3 August 2005, prepared for the tribunal proceedings, Mr Fraser swears that the Cossack Pioneer is a floating production, storage and offloading facility or FPSO. In its submissions on the jurisdictional issue dated 22 July 2005, the respondent again stated in para 14 that the vessel was a “floating production, storage and offloading facility”. Paragraph 15 of these submissions contains the further description that the vessel:

attaches to a disconnect or riser turret mooring (“RTM”), an immobile structure affixed to the seabed which links the “Cossack Pioneer”  with flexible pipes from sub sea wells …

In his later affidavit, dated 22 March 2006, furnished to the tribunal and previously filed in the federal court of Australia, Mr Fraser states that he swore this affidavit to clarify the nature of the Cossack Pioneer and, in particular, whether it drills the seabed or its subsoil or obtains substantial quantities of material from the seabed or its subsoil.  

18. The respondent’s s 37 statement of 1 April 2005 set out that a diagram was attached to the statement. The statement before me carried an attached colour reproduction or image of the Cossack Pioneer. The image showed the Cossack Pioneer attached to certain equipment which rose out of the sea and over the vessel’s side. The image was accompanied, on the same sheet, by a description of the respondent’s “metocean monitoring system”. The statement went on to explain that, while attached to the “riser”, the Cossack Pioneer was immobile and incapable of self-propulsion. This was evident from the image, which showed that the vessel was encumbered by the very substantial piece of equipment to which it was attached. Another large structure loomed up behind the vessel. This object was a tall metal framework tower and the image did not show whether the vessel was attached to the tower in any way.

19. The respondent lodged a further affidavit sworn by Mr Fraser on 22 March 2006 in which he stated that the vessel’s function was “to receive oil and gas”. He continued:

The oil and gas have their origins in sub-sea reservoirs. They flow … through a series of pipes, valves and manifolds to a riser that extends to and above the sea surface. The vessel “obtains the oil and gas from the riser, above the sea surface”. The processing involves separating the oil from the gas. ..

20. In submissions lodged on 11 July 2006, the respondent contends that the Cossack Pioneer:

is not an off-shore industry mobile unit for the reason that “no equipment attached to it drills the seabed.”

Contrary to this statement, an earlier statement lodged on behalf of the respondent on 1 April 2005 says that the Cossack Pioneer does drill the seabed. The respondent, in para 9 of its s 37 statement of 1 April 2005, sets out:

[B]y way of a riser, a pipeline and associated apparatus affixed to and/or forming part of the “Cossack Pioneer” (“the Riser”), the “Cossack Pioneer” drills the seabed or its sub-soil and/or obtains [emphasis added] material from the seabed or its sub-soil [emphasis added].

21. The respondent’s oral submissions made on 8 August 2006, were to the effect that, although earlier statements may have described the Cossack Pioneer as drilling the seabed, this did not affect whether it was an off-shore industry mobile unit. The respondent contended there had to be action of "obtaining" substantial quantities of material for the vessel to meet this term. It no longer admitted that the vessel obtained material from the seabed. At issue was what "obtaining" meant in context. 

Does the Cossack Pioneer obtain material from the seabed or its subsoil?

22. That part of the definition of an OIMU at issue is whether the vessel is engaged in:

obtaining substantial quantities of material from the seabed or its sub‑soil, with equipment that is on or forms part of the vessel.

Mr Fraser and the respondent argue that there are no drills or other devices or equipment on board the “Cossack Pioneer” that are used to extract materials from the seabed. Mr Fraser explains in his most recent affidavit that the sub-sea reservoirs are tapped by several wells. The wells do not contain pumping equipment and consist of a series of valves. The valves open the oil and gas flows to the well heads under the reservoirs own pressure. The flows proceed to the manifolds or collection points. From the manifolds, pipes carry the oil and gas from the seabed to above sea level through the riser. At a point above sea level, the FPSO connects to the riser and the flows reach the FPSO. Mr Fraser adds that there are no pumps involved and the FPSO is not needed to extract the oil and gas.

23. The affidavit of Mr Paul Bengough, marine engineer, sworn on 1 July 2005, is also before the tribunal. Mr Benough says that crude oil and natural gas are pumped on board the vessel through the riser. Mr Paul Lewis, the respondent’s operations supervisor, states in a sworn affidavit that the vessel is a floating production, storage and off-loading facility and that it produces oil and natural gas. He explains that the riser turret mooring or RTM is fixed to the bow of the vessel and that oil and gas from the ocean are drawn through the RTM. Production operators/technicians monitor the plant and equipment in this area of the facility. Recovered oil and gas passes from the RTM through “process skids” installed on the deck, is separated and stored or transported. Mr Fraser concludes from the process he has described that the Cossack Pioneer does not “obtain” oil and gas, but receives it, and the respondent argues that the vessel is therefore not an OIMU.

24. In a written submission, dated 6 September 2006, in reply to the applicant’s letter of 21 August 2006, the respondent explained that gas pumped from the Cossack Pioneer into the column and well feed system was injected into that system but not into the reservoir below the seabed or subsoil. It submitted that, therefore, the pumping equipment was not equipment on board the Cossack Pioneer used to obtain oil from the seabed. It claimed that gas was pumped only from time to time if the well was “depleted” and “it was necessary to reduce the hydrostatic head in the oil column”. It submitted the pumping of gas was not a process of extraction or “obtaining”. There was no equipment on the vessel according to the respondent that directly obtained the oil and gas from the seabed or its subsoil.

25.  Subsequently, the respondent wrote an undated letter to the tribunal received on 13 September 2006 and handed to me on 27 September 2006. In this letter, the respondent’s solicitors wrote that, towards the end of the life of a well, it may be necessary to pump gas into the riser to maintain pressure to ensure the oil and gas continues to flow aboard the Cossack Pioneer. The respondent submitted this did not change the situation that the vessel obtained these substances from the riser and not from the seabed or its subsoil. It maintained the material was always obtained from the riser. The applicant agrees that the Cossack Pioneer does not drill the seabed or its subsoil but argues that, nevertheless, it obtains oil and gas from this source.

26. Section 8(3) requires, in part, that the vessel is:

used or intended for use wholly or primarily in, or in any operations or activities associated with or incidental to … obtaining substantial quantities of material …

The parties have disagreed as to the meaning of “obtaining” in this context.

27. In examining the meaning of “obtaining”, I have sought the ordinary meaning of the word. See s 15AA of the Acts Interpretation Act 1901 and Newcastle City Council v GIO General Ltd (1997) 149 ALR 623. I have endeavoured to give effect to the clear meaning of the words in s 8(3) as recommended in R v L (1994) 122 ALR 464; Mills v Meeking (1990) 91 ALR 16 and Byrnes v R (1999) 164 ALR 520 at 542.

28. The respondent has submitted in para 13 of its outline of submissions dated 8 August 2006 that the meaning should be discerned from the phrase:

obtains substantial quantities of material from the seabed or its subsoil, with equipment that is on or forms part of the vessel

The respondent goes on the say that the “equipment” must form part of the “FPSO”. This claim contains several errors. Subsection 18(3) says nothing about an “FPSO” or floating production storage and offloading facilities. The definition refers to a “vessel”. The respondent also makes submissions about the placement of a comma after the word “seabed” and whether it would be grammatical to place a comma after the word “obtains” whereas there is no comma immediately after “seabed” and the word “obtaining” appears and not the word “obtains”. I shall confine my consideration to the actual words of the definition in s 8(3).

29. The respondent has further argued that, as s 8 was inserted by the Navigation Amendment Act 1980 No 87 of 1980, to make appropriate provision in respect of “vessels and floatable structures in the off-shore industry”, s 8 was intended to broaden the application of the Act; see Second Reading Speech for the introductory bill read by the Minister for Transport. This submission does not to my mind sit well with the submission that s 8 must not be interpreted in such a way as not to include vessels that would not otherwise have been caught. See para 15(b) of the respondent’s submissions. After all, the definition of ship is an inclusive provision which does include off-shore industry mobile unit in its parameters. If the respondent means to suggest that the definition of OIMUs should be read restrictively, I agree that the definition should not be interpreted so as to expand the definition of ship beyond the ordinary meaning of terminology used to describe the concept of an off-shore industry mobile unit.

30. In my view, it is clear that the Cossack Pioneer comes within the opening phrase used in para (a) of s 8(3), that is, it is:

a vessel that is used or intended to be for use wholly or primarily in, or any operations or activities associated with or incidental to, … exploiting the natural resources of [the continental shelf, seabed and subsoil of the seabed].

The subsection goes on to restrict the definition by reference to the vessel carrying out these activities by drilling or:

by obtaining substantial quantities of material from the seabed or its sub-soil, with equipment that is on or forms part of the vessel.

31. As to whether the equipment used by the vessel is on or forms part of it, the submissions before me are not clear. The equipment clearly forms part of the off-shore unit when it is operating as such and is stationary. The applicant has acknowledged that the riser is a permanent fixture, not supported by the vessel, but this is only part of the equipment used in the vessel’s activities when exploiting the resources of the seabed. Other parts of the equipment used to obtain or receive the oil and gas extracted are on the deck of the vessel. This equipment is explained by Mr Fraser as an arrangement whereby the FPSO connects to the riser and the flows reach the FPSO. Mr Paul Bengough says that crude oil and natural gas are pumped on board the vessel through the riser. Mr Paul Lewis explains that the riser turret mooring or RTM is fixed to the bow of the vessel and that oil and gas from the ocean are drawn through the RTM. He adds that production operators or technicians monitor the plant and equipment in this area of the facility and that recovered oil and gas passes from the RTM through “process skids” installed on the deck. These descriptions all suggest that there is equipment on the vessel that plays some part in collecting, processing, and separating the oil and gas drawn out of the wells. However, the riser is the most important equipment involved in collecting or extracting these materials, which is a view I have formed from the opinions before me. The riser is not on and does not form part of the vessel but is independently fixed to the seabed. The riser is simply attached to the Cossack Pioneer. The riser does not become part of the Cossack Pioneer when it is attached to it but remains a separate object. See DFC of T v Polaroid Australia PtyLtd 71 ATC 4249 at 4252 per Gibbs J. By analogy to the judgement of Gibbs J in this case, I consider that the riser does not become part of the Cossack Pioneer simply because the vessel cannot operate as an OIMU without it.

32. As I have noted, there is some equipment on the vessel that is used to receive or obtain the materials from the seabed. This includes the turret mooring and process skids and any other on board equipment that is used carry the material from the riser to the storage or production facilities. There are also pumps on board that are used occasionally to assist the process of extraction towards the end of the life of a well.

33. The limited equipment on board is part of the process of bringing the oil and gas on to the vessel. The material brought up in the riser must be discharged into something on board in order for it to be stored or transported. All of the equipment, including the riser, plays a passive receiving role in the extraction of the material, according to the explanations put before me. It is at this point of my analysis that the meaning of “obtaining” becomes crucial. The meaning of “obtain”, according to the Macquarie dictionary, is:

to come into possession of; get or acquire; procure, as by effort or request.

The Oxford dictionary gives similar meanings:

[to] come into the possession of; to procure; to get, acquire, or secure.

Neither of these definitions suggests that the obtaining need be active and that passive acquisition is outside the ambit of the word, obtain. To come into possession suggests no activity by the recipient whereas to procure or secure suggests some action taken. The Encyclopedic Australian Legal Dictionary does not provide a meaning for “obtain” but provides numerous examples of the use of the word in legislation and makes a link to the word “acquire”. It sets out that “acquire” means:

To come into possession or control of (for example (QLD) Weapons Act 1990 s 35(7)); to obtain, gain, or receive: for example (CTH) Income Tax Assessment Act 1936 s 136AA(1). Various Acts define the circumstances in which goods and services are ‘acquired', usually in inclusive terms. For example, for the purposes of the (CTH) Trade Practices Act 1974, the term ‘acquire' includes: in relation to goods, acquisition by way of purchase, exchange, lease, hire, or hire-purchase, and acquisition of property in, or rights in relation to, goods; and in relation to services, accepting the services: (CTH) Trade Practices Act 1974 ss 4(1), 4C(a); Castlemaine Tooheys Ltd v Williams and Hodgson Transport Pty Ltd (1986) 162 CLR 395 ; 68 ALR 376 . A reference to the acquisition of goods and services also includes a reference to agreeing to supply or acquire goods or services: (CTH) Trade Practices Act 1974 s 4C(b). For the purposes of the (VIC) Firearms Act 1996 , ‘acquire' is defined to include buy, offer to buy, or come into possession of, but not borrow: (VIC) Firearms Act 1996 s 3(1).

From these insights, I consider it is apparent that “obtain” can mean receiving or accepting something. For that reason, I do not agree with the respondent’s contention that the Cossack Pioneer does not obtain material from the seabed. I therefore find that the vessel does obtain substantial quantities of material from the seabed or its sub-soil within the meaning of s 8(3).

34. However, I think the more telling aspect of the definition in s 8(3) is the requirement that the vessel do the obtaining “with equipment that is on or forms part of the vessel”. The applicant submits that the equipment on board is:

·     the riser or RTM, which is an independent structure but attached to the vessel;

·     the process skids, which are installed on the main deck between the bow and the accommodation block, according to the information before me as attested by Mr Lewis;

·     the storage tanks into which the oil and gas are contained after extraction;

35. I have already found that the riser is not part of the equipment on or forming part of the Cossack Pioneer for the reasons set out above. On the other hand, I accept that the process skids and storage tanks are part of the vessel’s equipment and note that the respondent also admitted that pumps on board are occasionally used to bring oil and gas onto the vessel.  The term “equipment” is defined in s 6 and means:

…in relation to a ship, includes every thing or article belonging to or to be used in connexion with, or necessary for the navigation and safety of, the ship and, in particular, includes boats, tackle, pumps, apparel, furniture, life-saving appliances, spars, masts, rigging, sails, fog signals, lights, signals of distress, signalling lamps, pilot ladders, radio equipment, medicines, medical and surgical stores and appliances, fire prevention, detecting and extinguishing appliances, inert gas systems, echo-sounding devices, mechanical pilot hoists, buckets, compasses, charts, axes, lanterns and gear and apparatus for loading or unloading, or otherwise handling, cargo.

36. As can be seen, equipment is a very wide term for the purposes of the Navigation Act. While it is mainly concerned with things and articles to do with navigation and safety and with loading and unloading cargo, the definition is inclusive and does not exclude other things.  The oil and gas obtained by the Cossack Pioneer is only able to be obtained by the vessel using the equipment on board insignificant though it may be in the extraction process. I therefore find that the Cossack Pioneer meets the requirement in the definition of off-shore industry mobile unit that it is a vessel used in activities associated with exploiting natural resources of the seabed “by obtaining” substantial quantities of material from the seabed with “equipment that is on or forms part of the vessel”. This means that the Cossack Pioneer is an “off-shore industry mobile unit” in my view. The definition of “ship” in s 6 of the Act includes an offshore industry mobile unit. It follows that lack of jurisdiction is not established on the ground that the vessel is not such a unit.

decision

37.  I find that the Cossack Pioneer is an off-shore industry mobile unit within the meaning of s 8(3) of the Navigation Act 1912 and hence a ship within the meaning of s 6 of the Act and a prescribed ship within s 3 of the Seafarers Rehabilitation and Compensation Act 1992.  This finding does not alter the original decision reached on 11 October 2005 that the tribunal has jurisdiction to hear the application of John Frame.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Robin Hunt, Senior Member

Signed:   Rhonda Pietrini,  Associate to Senior Member Hunt

Date/s of Hearing  18 August 2006
Date of Decision  October 2005
Counsel for the Applicant         N/A
Solicitor for the Applicant          David Trainor
Counsel for the Respondent     Geoff Hancy
Solicitor for the Respondent    Patricia Saraceni