Mark Bernard Everard McCauley v Hamilton Island Enterprises Pty Limited and Others

[1986] HCA 86

HIGH COURT OF AUSTRALIA

Mason J.

MARK BERNARD EVERARD McCAULEY v. HAMILTON ISLAND ENTERPRISES PTY LIMITED AND OTHERS

23 December 1986

Decision

MASON J.: The plaintiff commenced an action in this Court by writ of summons for damages for personal injuries arising out of a collision between two helicopters on a pontoon situated in the Great Barrier Reef. The action has been brought against three defendants: Hamilton Island Enterprises Pty Limited (the first defendant), Keith Williams (Queensland) Pty Limited (the second defendant), and the Great Barrier Reef Marine Park Authority ("the Authority"). The present proceedings relate to two applications made in connection with the action, by the plaintiff on the one hand and the first and second defendants on the other. The plaintiff's application is for the matter to be remitted to the Federal Court of Australia, or alternatively to the Supreme Court of New South Wales, pursuant to s.44 of the Judiciary Act 1903 (Cth). The application by the first and second defendants is for the writ of summons to be set aside as against them on the ground that this Court has no jurisdiction to entertain the plaintiff's claim, or alternatively that the claim is an abuse of process. It is to be noted, however, that setting aside the writ here under Ord.11 r.5 of the High Court Rules is only appropriate if there is want of jurisdiction. The proper proceeding in the case of abuse of process is for a perpetual stay pursuant to Ord.63 r.2. In order to preserve the first and second defendants' position in relation to the question of jurisdiction, on 23 April 1986 I granted them leave to enter a conditional appearance (Ord.11 r.4).

2. Before examining the merits of each application it is necessary to state briefly the circumstances which have given rise to the action, as alleged by the plaintiff in his statement of claim. On 12 December 1985 the plaintiff took a helicopter flight from Hamilton Island to the pontoon in a helicopter owned by the second defendant. The pontoon is located approximately 80 kilometres north-north-east of Hamilton Island and is within the Great Barrier Reef Marine Park established under Pt V of the Great Barrier Reef Marine Park Act 1975 (Cth) ("the Marine Park Act"). While in the process of landing on the pontoon, the helicopter collided with another helicopter, owned by the first defendant, which was already stationed on the pontoon. In the course of the collision the plaintiff was thrown from the helicopter and sustained severe injuries causing complete quadriplegia. The statement of claim alleges negligence on the part of the first and second defendants, as owners of the two helicopters in question. It also alleges negligence on the part of the Authority on a large number of grounds which will be considered further below.

3. The plaintiff initially claimed to have commenced proceedings in this Court in the original jurisdiction conferred by s.75(iv) of the Constitution, but later abandoned that ground and sought to rely on the alternative basis of jurisdiction that the matter is one in which the Commonwealth or a person being sued on behalf of the Commonwealth is a party (s.75(iii) of the Constitution). Although absence of jurisdiction was one of the grounds in the summons on which the first and second defendants based their application, when the application came on for hearing their counsel conceded that the case fell within s.75(iii). The effect of the concession is to remove from the area of dispute between the parties the question whether this Court lacks jurisdiction to entertain the plaintiff's action in relation to the Authority.

4. I would only add that if this Court has jurisdiction in the plaintiff's claim against the Authority, it also has jurisdiction in relation to the claim against the first and second defendants. This is so because s.75(iii) of the Constitution confers on this Court original jurisdiction in the whole matter in which a person being sued on behalf of the Commonwealth is a party, not merely jurisdiction vis-a-vis that person (R. v. Drake-Brockman; Ex parte National Oil Pty. Ltd. (1943) 68 CLR 51, at pp 57-58; Carter v. Egg and Egg Pulp Marketing Board (Vict.) (1942) 66 CLR 557, at p 579).

5. The questions now arising for consideration are:

(1) Should the proceeding commenced by the writ of summons

be perpetually stayed on the ground that it is an abuse of process; and

(2) If not, to which court should the matter be remitted?
The first question goes to the heart of the first and second defendants' application, while the second question is the substantive issue raised by the plaintiff's application.

6. The first and second defendants submit that even if the Court has jurisdiction in the matter, the amended statement of claim amounts to an abuse of process because (a) it discloses no reasonable or probable cause of action against the Authority; and (b) that the plaintiff has added the Authority as a party to the action solely to attract the jurisdiction of this Court, and by remitter have the action heard in New South Wales (either by the Federal Court or the Supreme Court of New South Wales). The first and second defendants submit that otherwise the matter would naturally be heard by the Supreme Court of Queensland in the event that this Court's jurisdiction was not invoked. The advantage which they claim the plaintiff seeks to attain in having the matter heard in New South Wales is that awards for damages for personal injury are generally higher in New South Wales than Queensland because of the application of a lower rate of discount to damages for future loss than would be applied in Queensland. In New South Wales, which has no relevant statutory provision relating to the rate of discount in actions for damages of the present kind, the applicable rate of discount is 3 per cent (Todorovic v. Waller (1981) 150 CLR 402, at pp 424, 451, 460, 478), but in Queensland s.5 of the Common Law Practice Act 1867 (Qld) prescribes a rate of discount of 5 per cent. Accordingly, it is said that the commencement of proceedings in this Court is a blatant exercise in "forum shopping" and an abuse of process of the Court.

7. The Authority does not seek to have the action against itself stayed. Nor does it support the application made by the first two defendants for a perpetual stay. The Authority maintains that the question whether the plaintiff has a reasonable or probable course of action against it is better left for determination at the trial.

8. The first and second defendants' submission that there is no reasonable or probable cause of action against the Authority is founded on the functions and powers of the Authority under the Marine Park Act and the terms of par.16 of the plaintiff's amended statement of claim.

9. Section 7 of the Marine Park Act provides that the functions of the Authority are:

(i) to make recommendations to the Minister in relation

to the care and development of the Marine Park (s.7(1)(a));

(ii) to carry out research and investigations relevant

to the Marine Park (s.7(1)(b));

(iii) to prepare zoning plans for the Marine Park

(s.7(1)(c));

(iv) to furnish information and advice to the Minister

in respect of matters relating to the Marine Park (s.7(1)(ca));

(v) to receive and disburse moneys paid to the

Authority by the Commonwealth Parliament or Queensland (s.7(1)(cb) and (cc));

(vi) to provide educational, advisory and informational

services relating to the Marine Park (s.7(1)(cd));

(vii) such functions relating to the Marine Park as are

provided for by the regulations (s.7(1)(d));

(viii) to do anything incidental or conducive to the

performance of any of the foregoing functions (s.7(1)(e)); and

(ix) management of the Marine Park (s.7(1B)).

10. Section 8(1) of the Marine Park Act, which is headed "Powers of Authority", provides as follows:

"8. (1) The Authority may do all things that are necessary or convenient to be done for or in connexion with the performance of its functions and, in particular, may -

(a) enter into contracts;

(b) occupy, use and control any land or building owned or held under lease by the Commonwealth and made available for the purposes of the Authority;

(c) acquire, hold and dispose of real or personal property;

(d) accept gifts, devices and bequests made to the Authority, whether on trust or otherwise, and to act as trustee of moneys or other property vested in the Authority upon trust; and

(e) do anything incidental to any of its powers."

11. Paragraph 16 of the amended statement of claim particularizes some twenty-seven grounds of negligence against the Authority. They principally relate to the failure of the Authority to ensure that certain safety measures were adopted and certain Air Navigation Regulations complied with, both in relation to the pontoon and the helicopters. The first and second defendants allege an absence of an arguable cause of action against the Authority because (1) par.10 of the amended statement of claim does not allege that the Authority was the occupier of the pontoon, but only of the mooring site where the pontoon was situated; and (2) the omissions complained of were not within the responsibility of the Authority, bearing in mind its functions and powers under the Marine Park Act.

12. The Authority is not entrusted with the function of administering the Air Navigation Regulations or given power to do so. However, the plaintiff submits that there are two grounds on which the Authority should be held to have been subject to a duty of care to the plaintiff, and that these grounds give rise to a reasonable or probable cause of action against it. The first relates to the regulation-making power in s.66 of the Marine Park Act. Section 66(2)(h) confers on the Governor-General power to make regulations "providing for the safety of persons in the Marine Park". Section 66(2)(o) confers power to make regulations:

"regulating the use of vessels in, and the passage of vessels through, the Marine Park and the landing and use of aircraft in, and the flying of aircraft over, the Marine Park".

"Vessel" is defined in s.3(1) to include a pontoon and "aircraft" is defined in a way that would clearly include a helicopter. Counsel for the plaintiff say that, by virtue of these provisions, a positive power is vested in the Authority over the use of the pontoon and the flying and landing of helicopters in the Marine Park. But counsel have not been able to point to any regulation which has been made pursuant to s.66(2)(h) or (o).

13. Different considerations are presented by the second ground relied on by the plaintiff. It relates to par.(16)(x) of the amended statement of claim, which states, as one particular of the Authority's alleged negligence, that it failed to prevent the first and second defendants from carrying on a "prescribed activity" contrary to reg.13A of the Great Barrier Reef Marine Park Regulations. That regulation relevantly provides, in sub-reg.(1) as follows:

"13A.(1) Subject to sub-regulations (2), (3) and (4), a person shall not carry on a prescribed activity in the unzoned area without the permission in writing of the Authority. Penalty: $5,000."

It is common ground that the pontoon was located in an unzoned area of the Marine Park. Regulation 4(1) defines "prescribed activity" to mean "the building, assembling or fixing in position of structures" (par.(a)), and "the construction of landing areas" (par.(d)). It is argued that there can be inferred from this regulation (1) a duty in the Authority not to allow a prescribed activity to be carried on without permission and (2) a duty in the Authority, in granting such permission, to ensure that all approvals have been granted and all regulations complied with which would ensure the safety of persons in the use of the pontoon.

14. Although it may be difficult to imply from the terms of reg.13A(1) the existence of a statutory duty to prevent persons from carrying out a prescribed activity without permission, it is possible that the existence of the sub-regulation may play a part in the creation of a common law duty of care on the part of the Authority to the plaintiff. The question whether such a duty existed in the circumstances of this case would require an examination of matters of fact and detail ranging beyond the bare particulars furnished in the amended statement of claim. I am by no means satisfied, as the first two defendants contend, that there is no possible foundation in law for the cause of action which the plaintiff seeks to litigate. In determining whether that cause of action exists it will be necessary to pay close attention to the provisions of the Marine Park Act which entrusts the Authority with the management of a marine park, no doubt with the object of conservation of the natural environment firmly in mind. Although this is the principal object of the statutory regime, it may not necessarily be inconsistent with the existence of a common law duty of care such as that alleged by the plaintiff. The Authority's failure to join in the submission made by the first two defendants reinforces my conclusion that the application for a stay should be refused.

15. The question of remitter is complicated by the circumstance that on the materials before me it does not clearly emerge whether the accident took place within or outside the State of Queensland. From what I have been told the accident may well have occurred in waters of the Great Barrier Reef Marine Park outside the territorial boundaries of Queensland. It has not been clearly established "whose law has given rise to the cause of action", in the words of Gibbs C.J., Wilson and Brennan JJ. in Pozniak v. Smith (1982) 151 CLR 38, at p 47. It will be recalled that their Honours stated that where the relevant law in competing jurisdictions is materially different in its effect on the rights of the parties, the only safe course to pursue is to remit the action for hearing in the State whose law has given rise to the cause of action. There the competition was between the Supreme Courts of Queensland and New South Wales, with Queensland prevailing because the accident took place in that State.

16. If the choice to be made in the present case was solely between remitter to the Supreme Court of Queensland and remitter to the Supreme Court of New South Wales I would be inclined to favour remitter to the Supreme Court of Queensland on the footing that the accident had a closer connection with Queensland (Pozniak, at p.54) and that the likely balance of convenience favours a hearing in Queensland, though again the balance of convenience can be more accurately assessed when the issues in the action are more clearly defined and each party is able to identify with more precision the witnesses to be called. The closer connection with Queensland arises from a number of factors, including the location of the accident, the fact that Queensland is the place of incorporation of the first two defendants and the fact that the relevant activities of these defendants are primarily associated with that State. But for the co-joinder of the Authority the Supreme Court of Queensland would be the natural forum for the plaintiff's action against the first two defendants. Indeed, it has not been suggested that the Supreme Court of New South Wales would have had jurisdiction to entertain such an action.

17. However, it seems to me that the critical choice to be made in the present case lies between the Federal Court and the Supreme Court of Queensland. It is not suggested that the Federal Court has jurisdiction to enter an action brought by the plaintiff only against the first two defendants. But by s.44(2A) of the Judiciary Act this Court is given express power to remit to the Federal Court a matter in which a person is being sued on behalf of the Commonwealth and on such a remitter the Federal Court has jurisdiction in the matter (s.44(3)(a)).

18. Once it is accepted that the plaintiff's joinder of the Authority as a defendant in the action is not an abuse of process, the plaintiff's invocation of the jurisdiction of this Court in preference to the Supreme Court of Queensland cannot be criticized. Nor is it possible to say that the matter should be remitted to the Supreme Court of Queensland because for some reason or other it is a more natural forum for the action than the Federal Court which relevantly stands in the jurisdictional shoes of this Court by virtue of a remitter under s.44(2A) of the Judiciary Act. This Court has jurisdiction in the action by virtue of s.75(iii) of the Constitution and s.44(2A) enables that jurisdiction to be remitted to the Federal Court. In this context the Federal Court is a natural and appropriate forum for the litigation of causes of action arising from occurrences in Australian waters outside the territorial boundaries of the States, more particularly when the occurrence takes place within a marine park established by a Commonwealth law. One additional factor to which I have regard is that the interpretation and application of Commonwealth laws is a fundamental element in the cause of action against the Authority. This element favours in some degree a remitter to the Federal Court which will apply the same law as this Court would apply if the action were heard in this Court.

19. In this result I make the following orders:

1. Dismiss the summons taken out by the first and second

defendants with costs.

2. On the plaintiff's summons order (a) that the matter be

remitted to the Federal Court; and (b) that the first and second defendants pay the costs of the plaintiff and of the third defendant of that summons.

Orders

That the summons taken out by the first and second defendants be dismissed with costs.

On the plaintiff's summons that

(a) the matter be remitted to the Federal Court; and

(b) the first and second defendants pay the costs of the plaintiff and the third defendant of that summons.