FEDERAL COURT OF AUSTRALIA
Hingston v Pacific Tug (Australia) Pty Ltd
[2012] FCAFC 119
Citation: Hingston v Pacific Tug (Australia) Pty Ltd [2012] FCAFC 119 Appeal from: Hingston v Pacific Tug (Australia) Pty Ltd [2011] AATA 761
Hingston v Pacific Tug (Australia) Pty Ltd [2012] AATA 277Parties: MURRAY JAMES HINGSTON v PACIFIC TUG (AUSTRALIA) PTY LTD File numbers: NSD 2114 of 2011
NSD 683 of 2012Judges: RARES, BUCHANAN AND KERR JJ Date of judgment: 21 August 2012 Catchwords: ADMIRALTY – seafarers compensation – ship provisioned, bunkered and crewed at one Australian port to undertake charterparty commencing at another Australian port – charterparty providing for ship to sail to overseas destination and return to Australia – seaman injured in second Australian port while preparing to begin chartered voyage – whether seaman injured when ship proceeding on an overseas voyage Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Navigation Act 1912 (Cth) ss 2, 6, 10
Seafarers Rehabilitation and Compensation Act1992 (Cth) ss 3, 4, 9, 19, 26, 78Cases cited: Tiwi Barge Services Pty Limited v Stark (1997) 78 FCR 218 Date of hearing: 21 August 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 14 Counsel for the Applicant: Mr L King SC with Mr H Halligan Solicitor for the Applicant: WG McNally Jones Staff Lawyers Counsel for the Respondent: Mr R Derrington SC with Mr A Harding Solicitor for the Respondent: Norton Rose Australia
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 2114 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: MURRAY JAMES HINGSTON
ApplicantAND: PACIFIC TUG (AUSTRALIA) PTY LTD
Respondent
JUDGES:
RARES, BUCHANAN AND KERR JJ
DATE OF ORDER:
21 AUGUST 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The respondent pay the applicant’s costs of the work necessary or relevant for the purpose of determining the issues in the proceedings NSD 683 of 2012.
3.Save as provided in order 2, there be no order as to costs.
Note:Entry of orders is dealt with in r 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 683 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: MURRAY JAMES HINGSTON
AppellantAND: PACIFIC TUG (AUSTRALIA) PTY LTD
Respondent
JUDGES:
RARES, BUCHANAN AND KERR JJ
DATE OF ORDER:
21 AUGUST 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The decision of the Administrative Appeals Tribunal made on 9 May 2012 be set aside.
2.The matter be remitted to the Administrative Appeals Tribunal to be dealt with according to law.
3.The respondent pay the applicant’s costs.
Note:Entry of orders is dealt with in r 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 2114 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: MURRAY JAMES HINGSTON
ApplicantAND: PACIFIC TUG (AUSTRALIA) PTY LTD
Respondent
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- Case
- [2012] FCAFC 119
- Decision Date
CaseChat Overview and Summary
The court considered whether the journey from Fremantle to Dampier constituted part of the overseas voyage and whether the overseas voyage had commenced at the time of the injury. The court determined that the voyage from Fremantle to Dampier was separate from the overseas voyage and that the overseas voyage had not commenced at the time of the injury. However, the court found that the Navigation Act applied to the entire overseas voyage that had commenced in Fremantle. The overseas voyage began when the vessel departed from Fremantle, fully provisioned, bunkered, and virtually fully crewed for its service under the charterparty. The court concluded that the Navigation Act, including Part II, applied to the entire overseas voyage of the vessel and its crew, and thus the vessel was a prescribed ship within the meaning of the Seafarers Rehabilitation and Compensation Act. Consequently, the court found that the Administrative Appeals Tribunal had erred in holding that it had no jurisdiction. The appeal was dismissed, and the matter was remitted to the Administrative Appeals Tribunal to be dealt with according to law. The respondent was ordered to pay the applicant’s costs.
Orders
Orders of the court
1. The appeal be dismissed.
2. The respondent pay the applicant’s costs of the work necessary or relevant for the purpose of determining the issues in the proceedings NSD 683 of 2012.
3. Save as provided in order 2, there be no order as to costs.
Note: Entry of orders is dealt with in r 39.32 of the Federal Court Rules 2011.
1. The decision of the Administrative Appeals Tribunal made on 9 May 2012 be set aside.
2. The matter be remitted to the Administrative Appeals Tribunal to be dealt with according to law.
3. The respondent pay the applicant’s costs.
Note: Entry of orders is dealt with in r 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
That conclusion had two elements: first, the voyage from Fremantle to Dampier was separate from, and not a part of, an overseas voyage; and, secondly, that at the time of the accident, the overseas voyage had not commenced because Cape Don had not got under way within the meaning of s 2(2) of the Navigation Act. It is not necessary for us to deal with the second of these elements. The Tribunal found that ([41]):The facts of this case are that the contract (the Charter Party) provided for the Cape Don to be delivered to the port of Dampier for use by Van Oord [the time charterer]. The contract provided firstly, for the Cape Don to be employed in towing the dredge Hippopotes from Dampier to Tangguh in West Papua. Thus, in my view it is clear that the planned overseas voyage was to begin in Dampier. I do not consider the fact that Pacific Tug employed most of the crew in Freemantle to be significant – this was a matter for Pacific Tug, and presumably of practicality given the need for Pacific Tug to deliver the tug to the port of Dampier. I also note Mr Peters’ evidence that the Cape Don sailed from Fremantle to Dampier at the expense of Pacific Tug and payment under the contract with Van Oord only commenced once the Cape Don had been delivered in Dampier.CONSIDERATION The Tribunal was not referred to, and did not deal in its reasons with, the concluding clause of the definition of “overseas voyage” in s 6 of the Navigation Act. In our opinion, on the facts found by the Tribunal, there was one “overseas voyage” within the meaning of that expression in s 6 of the Navigation Act. That overseas voyage commenced when Cape Don got under way in the Port of Fremantle and was at that time fully provisioned, fully bunkered and virtually fully crewed for its service under the charterparty. The purpose of the tug leaving Fremantle was to proceed thence with the same crew to Tangguh, after she called at Dampier in order to commence service under the charterparty and tow the dredge. Cape Don, with her crew including Mr Hingston, was proceeding on that overseas voyage and it mattered not that she travelled via Dampier. The only purpose for her proceeding with her crew on the voyage from Fremantle was to undertake the charterparty. It follows that the Navigation Act, including Pt II, applied to the whole of the overseas voyage of Cape Don and her crew that had commenced in Fremantle and was proceeding at the time of the injury. Accordingly, Cape Don was a prescribed ship within the meaning of s 19(1)(a) of the SRC Act. For these reasons, the Tribunal erred in holding that it had no jurisdiction. It follows that the second appeal must be allowed. Because we have concluded that the Navigation Act as a whole applied to Cape Don and its crew on the voyage that commenced in Fremantle, it is unnecessary to consider Pacific Tug’s argument that the reasoning in Tiwi Barge 78 FCR at 222 B-C was not correct. There the Full Court reasoned that it was not necessary to consider Pt I of the Navigation Act for the purposes of the definition of “prescribed ship” in the SRC Act. We express no view on that issue.NOTICE OF CONTENTION