Hirst v Carnival Plc trading as P & O Cruises Australia

[2023] NSWCATCD 94

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Hirst v Carnival PLC trading as P & O Cruises Australia [2023] NSWCATCD 94

Hearing dates:

20 July 2023

Date of orders:

25 August 2023 [amended 22 September 2023]

Decision date:

25 August 2023

Jurisdiction:

Consumer and Commercial Division

Before:

B Koch, General Member

Decision:

The Tribunal declines to deal with application GEN 23/23993 as it has no jurisdiction to determine these proceedings.

Catchwords:

CONSUMER CLAIM – shipping contract – compensation

CONSTITUTIONAL LAW – Federal jurisdiction – no power of the Tribunal to determine a federal matter

Legislation Cited:

Admiralty Act 1988 (Cth)

Australian Consumer Law (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Sale of Goods Act 1923 (NSW)

Cases Cited:

Birdon Pty Ltd v Houben Marine Pty Ltd (2011) 197 FCR 25

Burns v Corbett (2018) 265 CLR 304

Globelink International Pty Ltd v Lemesh [2020] NSWCATAP 193

Heilbrunn v Lightwood plc (2007) 164 FCR 1

Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275

Owners of “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404

Royal Caribbean Cruises Ltd v Reed [2021] FCA 51

Saidden v Norwegian Cruise Line Holdings Pty Ltd [2021] NSWCATACD 10

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Brent Hirst (Applicant)
Carnival PLC trading as P & O Cruises Australia (Respondent)

Representation:

Applicant in person
No appearance for Respondent

File Number(s):

GEN 23/23993

Publication restriction:

Nil

REASONS FOR DECISION

1. In this matter the applicant (Mr Hirst) seeks an order that the respondent (P&O Cruises) pay him the sum of $800. That amount is made up of:

1. a refund of a deposit of $600 paid by Mr Hirst to P&O Cruises pursuant to a contract entered into between those parties in respect of a 14 night cruise aboard the Pacific Encounter from Singapore to Brisbane scheduled between 25 February and 11 March 2023; and

2. a refund of a sum of $200 paid by Mr Hirst to P&O Cruises onboard an earlier cruise conducted by P&O Cruises in 2019.

2. As set out in more detail below, P&O Cruises has not appeared at any stage of these proceedings.

3. When the proceedings were listed for hearing on 20 July 2023, the Tribunal raised with Mr Hirst a preliminary question about whether the Tribunal has jurisdiction to hear and determine his claim or whether his claim was a “general maritime claim” for the purposes of s 4 of the Admiralty Act 1988 (Cth). As the question of jurisdiction was not raised with Mr Hirst prior to the hearing on 20 July 2023, the Tribunal provided Mr Hirst with an opportunity to provide written submissions on the issue. Mr Hirst provided those written submissions on 28 June 2023 and those written submissions have been considered by the Tribunal.

4. For the reasons set out below, the Tribunal has no jurisdiction to hear and determine the claim made by Mr Hirst.

Procedural background

5. On 26 February 2023, Mr Hirst filed an application with the Tribunal seeking an order that P&O Cruises pay Mr Hirst the sum of $800. That application was given file number GEN 23/09332.

6. Mr Hirst’s application was listed for conciliation and group list hearing on 27 March 2023. P&O did not appear at the hearing on 27 March. Notice of the application and of the hearing sent to P&O by the Tribunal was returned to the Tribunal despite those notices having been sent to the address for service of documents and principal place of business for P&O Cruises listed with ASIC (North Sydney Address). In the absence of P&O Cruises, the Tribunal adjourned the hearing to a date to be fixed and made orders for the parties to file and serve documents upon which they relied. The Tribunal also directed the Registry to email a copy of the orders made by the Tribunal and the notice of the future hearing date to P&O. Further, the Tribunal granted Mr Hirst leave to appear at the subsequent hearing by video conference or telephone.

7. On or about 28 March 2023, the Tribunal listed the hearing of Mr Hirst’s application for 10 May 2023 at 1.15pm.

8. Mr Hirst filed the documents upon which he sought to rely on 24 April 2023 (Applicant’s Documents).

9. At the hearing at 1.15pm on 10 May 2023, there was no appearance by any party and the Tribunal dismissed the application in the absence of any appearance or any satisfactory explanation for non-attendance. It is apparent from email correspondence between Mr Hirst and the Tribunal, both before and after the scheduled hearing time on 10 May 2023, that the Tribunal failed to recognise that Mr Hirst had been granted leave to appear virtually and he was not given the opportunity to appear before the Tribunal by that means.

10. On 16 May 2023, Mr Hirst filed an application seeking to reinstate the proceedings dismissed on 10 May 2023 pursuant to s 55(2) of the Civil and Administrative Tribunal Act 2013 (NSW). In the circumstances described above, on 25 May 2023, the Tribunal granted the application to reinstate the proceedings noting that the dismissal on 10 May 2023 had been the result of the Tribunal’s error.

11. The reinstated proceeding (given file number GEN 23/23993) was listed for hearing on 20 July 2023 at 2.45pm. The Tribunal sent notice of the hearing to P&O Cruises at both the North Sydney Address and by email. Notices sent to P&O Cruises at the North Sydney Address were again returned to the Tribunal.

12. Mr Hirst appeared at the hearing on 20 July 2023 by telephone. There was no appearance for P&O Cruises. In the circumstances set out above and, in particular, the numerous attempts by the Tribunal to serve notices of hearing at the North Sydney Address and the subsequent service of notices by email, the Tribunal was satisfied that service of notice on P&O Cruises had been duly attempted and considered that justice required that the matter be dealt with in the absence of P&O Cruises: r 35(2)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW).

13. At the hearing, Mr Hirst relied upon the Applicant’s Documents and gave oral evidence in response to several questions from the Tribunal. As set out above, the Tribunal raised with Mr Hirst a preliminary question about whether the Tribunal has jurisdiction to hear and determine his claim and referred him to the judgment of the Tribunal in Saidden v Norwegian Cruise Line Holdings Pty Ltd [2021] NSWCATACD 10 and the terms of s 4(3) of the Admiralty Act. The Tribunal reserved its decision on 20 July 2023 but gave Mr Hirst leave to file and serve any written submissions on the issue of the Tribunal’s jurisdiction. Mr Hirst filed submissions in that respect on 28 July 2023.

Factual background and Mr Hirst’s claims

14. The Tribunal makes the following findings of fact drawn from the Applicant’s Documents and the oral evidence of Mr Hirst given on 20 July 2023:

1. On or about 8 September 2022, Mr Hirst entered into a contract with P&O Cruises for a 14 night cruise aboard the “Pacific Encounter” departing Singapore on 25 February 2023 with Mr Hirst to disembark at Brisbane on 11 March 2023 (Contract).

2. At the same time as he entered into the contract with P&O Cruises, Mr Hirst paid P&O Cruises a deposit of $600. The Booking Confirmation at p. 16 of the Applicant’s Documents confirms that Mr Hirst had paid the deposit.

3. The contract between Mr Hirst and P&O Cruises comprised the Booking Confirmation and the Booking & Travel Conditions contained at pp. 21-34 of the Applicant’s Documents.

4. Pursuant to the terms of the Contract, Mr Hirst was required to pay the balance of the fare owed to P&O Cruises by 5 December 2022. Clause 7 of the Booking & Travel Conditions provided that “if we have not received your deposit or final payment by the due date, the booking will be cancelled automatically and our Refund Policy will apply in accordance with clause 11”.

5. Mr Hirst did not pay the balance of the fare on 5 December 2022. Mr Hirst did not wish to travel on the “Pacific Encounter” in February and March 2023 because he considered that P&O Cruises had failed to inform him that it could not supply a safe product and service having regard to the numbers of crew and passengers affected by COVID-19 on cruises in late 2022.

6. Clause 11 of the Booking & Travel Conditions provides, relevantly to Mr Hirst’s circumstances having regard to the fare booked and the amount of time between cancellation and cruise departure, that the refund amount is “Total Fare minus deposit”.

7. Mr Hirst sought repayment of the deposit of $600 from P&O Cruises, but that sum has not been repaid.

15. In addition to his claim to be repaid the sum of $600 paid to P&O Cruises as a deposit pursuant to the Contract, Mr Hirst also claims a sum of $200. Mr Hirst’s claim to that further sum arises from an earlier contract with P&O Cruises for a cruise upon which he travelled in or about 2019 (2019 Cruise). Mr Hirst claims that he made an “advanced purchase deposit” to his “ship account” in that sum while onboard that cruise. Mr Hirst claims that P&O Cruises was obliged to refund that amount to Mr Hirst as P&O Cruises had been unable to supply Mr Hirst with a cruise (because of the COVID-19 pandemic) in the two years after the 2019 Cruise.

16. The Applicant’s Documents contained (at pp. 1 – 6) a document titled “Statement of Claim” and a further document titled “Submissions and Statutory Declaration (at pp. 38 – 54). By those documents Mr Hirst raised numerous causes of action which he asserted entitled him to repayment of the $600 paid pursuant to the Contract and the $200 paid during the 2019 Cruise. Those causes of action included:

1. Breach of contract;

2. Misleading or deceptive conduct under s 18 of the Australian Consumer Law (ACL);

3. Unconscionable conduct under ss 20-22 of the ACL;

4. Unfair contract terms, presumably under ss 23-28 of the ACL;

5. Breach of the guarantee as to acceptable quality in s 54 of the ACL;

6. Breach on the prohibition against bait advertising in s 35 of the ACL;

7. Breach of the prohibition against wrongly accepting payment in s 36 of the ACL; and

8. Breach of a variety of provisions of the Sale of Goods Act 1923 (NSW).

Jurisdiction of the Tribunal

17. As stated above, there arises a preliminary question as to the jurisdiction of the Tribunal to hear Mr Hirst’s claims. As the Appeal Panel held in Globelink International Pty Ltd v Lemesh [2020] NSWCATAP 193 at [20]:

The Tribunal, including the Appeal Panel, has the duty to satisfy itself whether a claim made to it is within the limited jurisdictional authority conferred on the Tribunal by the Civil and Administrative Tribunal Act (2013) (CAT Act) or any other enabling legislation conferring jurisdiction on it. This duty carries with it the authority to determine whether or not the Tribunal has the jurisdiction to determine the claim before it. If the question is, as is the case here, whether the matter requires the Tribunal to exercise federal jurisdiction, the determination of the question of whether it has jurisdiction does not mean that the Tribunal is exercising federal jurisdiction, rather it is exercising power given to it, by necessary implication and anterior to the exercise of federal jurisdiction, to determine whether it has the necessary jurisdiction to determine the claim: Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213 at [12]-[15] per Leeming JA with whom Macfarlane JA (sic) agreed and White JA at [73].

18. The Tribunal does not have jurisdiction to hear and determine a claim which is a “maritime claim” within the meaning of s 4 of the Admiralty Act. Relevantly, s 9(1) of the Admiralty Act provides:

Jurisdiction is conferred on the Federal Court, the Federal Circuit Court and on the Courts of the Territories, and the courts of States are invested with federal jurisdiction in respect of proceedings commenced as actions in personam:

(a)   On a maritime claim; or

(b)   On a claim for damage done to a ship.

19. The Tribunal is not a court of the State: Burns v Corbett (2018) 265 CLR 304. A summary of what constitutes a federal matter and the applicable principles is contained in Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275 at [22].

20. The Tribunal is incapable of exercising the federal jurisdiction necessary to hear and determine a “maritime claim”. The critical question is therefore whether Mr Hirst’s claims are “maritime claims”.

21. Section 4 of the Admiralty Act defines the terms “maritime claim” and “general maritime claim”. In the extract from s 4 below, the definition of “proprietary maritime claim” is excluded as it is irrelevant to the matter before the Tribunal:

Maritime claims

(1)   A reference in this Act to a maritime claim is a reference to a proprietary maritime claim or a general maritime claim.

…

(3)   A reference in this Act to a general maritime claim is a reference to:

(a)   a claim for damage done by a ship (whether by collision or otherwise); or

(b) a claim in respect of the liability of the owner of a ship arising under Part II or IV of the Protection of the Sea (Civil Liability) Act 1981 or under a law of a State or Territory that makes provision as mentioned in subsection 7(1) of that Act; or

(ba)   a claim under:

(i) the applied provisions (within the meaning of the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008); or

(ii)   a law of a State or Territory of a kind referred to in subsection 10(1) of that Act; or

(c)   a claim for loss of life, or for personal injury, sustained in consequence of a defect in a ship or in the apparel or equipment of a ship; or

(d)   a claim (including a claim for loss of life or personal injury) arising out of an act or omission of:

(i)   the owner or charterer of a ship;

(ii)   a person in possession or control of a ship; or

(iii)   a person for whose wrongful acts or omissions the owner, charterer or person in possession or control of a ship is liable;

being an act or omission in the navigation or management of the ship, including an act or omission in connection with:

(iv)   the loading of goods on to, or the unloading of goods from, the ship;

(v)   the embarkation of persons on to, or the disembarkation of persons from, the ship; and

(vi)   the carriage of goods or persons on the ship; or

(e)   a claim for loss of, or damage to, goods carried by a ship; or

(f)   a claim arising out of an agreement that relates to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charterparty or otherwise; or

(g)   a claim relating to salvage (including life salvage and salvage of cargo or wreck found on land); or

(h)   a claim in respect of general average; or

(j)   a claim in respect of towage of a ship; or

(k)   a claim in respect of pilotage of a ship; or

(m)   a claim in respect of goods, materials or services (including stevedoring and lighterage services) supplied or to be supplied to a ship for its operation or maintenance; or

(n)   a claim in respect of the construction of a ship (including such a claim relating to a vessel before it was launched); or

(o)   a claim in respect of the alteration, repair or equipping of a ship; or

(p)   a claim in respect of a liability for port, harbour, canal or light tolls, charges or dues, or tolls, charges or dues of a similar kind, in relation to a ship; or

(q) a claim in respect of a levy in relation to a ship, including a shipping levy imposed by the Protection of the Sea (Shipping Levy) Act 1981, being a levy in relation to which a power to detain the ship is conferred by a law in force in Australia or in a part of Australia; or

(r)   a claim by a master, shipper, charterer or agent in respect of disbursements on account of a ship; or

(s)   a claim for an insurance premium, or for a mutual insurance call, in relation to a ship; or

(t)   a claim by a master, or a member of the crew, of a ship for:

(i)   wages; or

(ii)   an amount that a person, as employer, is under an obligation to pay to a person as employee, whether the obligation arose out of the contract of employment or by operation of law, including the operation of the law of a foreign country; or

(u) a claim for the enforcement of, or a claim arising out of, an arbitral award (including a foreign award within the meaning of the International Arbitration Act 1974) made in respect of a proprietary maritime claim or a claim referred to in one of the preceding paragraphs; or

(w)   a claim for interest in respect of a claim referred to in one of the preceding paragraphs.

(bold emphasis added)

22. In his submissions filed on the question of jurisdiction, Mr Hirst submits that the Admiralty Act does not apply to his claim. Mr Hirst’s submissions concentrate on the operation of s 4(3)(d)(vi) of the Admiralty Act and submits that he never “embarked or disembarked” and “if one neither ‘embarks or disembarks on a cruise ship then it falls within the jurisdictional ambit of a commercial contract and contract law and common law apply and the jurisdiction of the Tribunal remains to hear the application”.

23. With respect, Mr Hirst’s submissions do not address the operation of s 4(3)(f) of the Admiralty Act which the Tribunal drew to his attention on 20 July 2023 and which defines “general maritime claim” to include “a claim arising out of an agreement that relates to the carriage of … persons by a ship”.

24. Provisions such as s 4 of the Admiralty Act which confer jurisdiction or grant powers to courts should be interpreted liberally and without imposing limitations not found in the express words: Heilbrunn v Lightwood plc (2007) 164 FCR 1 (Heilbrunn) at [29] per Allsop J (as his Honour then was).

25. The specific operation of s 4 was considered by the High Court in Owners of “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 at 422:

The purpose of the Act is to vest and confer jurisdiction with respect to maritime claims as defined in s.4, subject to certain specified limits…

Given that the Act is primarily concerned with jurisdiction and that it deals with remedies only to extend them in the ways indicated, the word "claim" in the definitions of "proprietary maritime claim" and "general maritime claim" would ordinarily be construed as the assertion of a right or interest recognized by the law and carrying an entitlement to relief. It would not ordinarily be read as confined to claims for particular relief or, even, relief of a particular kind. Similarly, it would not ordinarily be read as excluding claims to particular relief or relief of a particular kind. More particularly, it would not ordinarily be read as excluding a claim for specific performance or for other equitable relief.

26. In Birdon Pty Ltd v Houben Marine Pty Ltd (2011) 197 FCR 25 at [35], Keane CJ stated that “it is well settled that s 4(3)(f) is to be given a broad reading”.

27. Further, the phrase “arising out of” in s 4(3)(f) “is to be given a wide and liberal, not narrow, construction and would include claims in tort and bailment”: Royal Caribbean Cruises Ltd v Reed [2021] FCA 51 at [10], citing Heilbrunn at [38] – [42].

Determination

28. Mr Hirst’s claims are that:

1. He is entitled to a refund of the sum of $600 he paid to P&O Cruises pursuant to the Contract; and

2. He is entitled to a refund of the sum of $200 he paid to P&O Cruises during the course of the 2019 Cruise.

29. Each of those claims arise out of either the Contract or the earlier contract between Mr Hirst and P&O Cruises for the provision of the 2019 Cruise, given the wide and liberal construction to be given to those words. Each of those contracts was an agreement that relates to the carriage of persons by ship.

30. Contrary to Mr Hirst’s submissions, it does not matter that Mr Hirst did not, in the events which occurred, actually embark upon the cruise the subject of the Contract. To interpret s 4 in a way that excluded a claim in those circumstances would be to impose a limitation not found in the express words of the statute. It should also be noted that Mr Hirst’s submission in that regard is not relevant to the 2019 Cruise upon which he did embark.

29. Further, the wide range of causes of action upon which Mr Hirst relies in addition to breach of contract do not exclude his claims from the operation of s 4 of the Admiralty Act: see Heilbrunn at [36].

30. Having regard to the above, it is clear that the claims raised by Mr Hirst are “general maritime claims” as defined by s 4 of the Admiralty Act. The claims require the exercise of federal jurisdiction. Accordingly, the Tribunal has no jurisdiction to hear and determine the claims by Mr Hirst and declines to do so.

31. It is for Mr Hirst to determine if he wishes to seek leave of a court as permitted by Part 3A of the Civil and Administrative Tribunal Act 2013.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 22 September 2023