Pacific Tug (Australia) Pty Ltd v Murray James Hingston

[2013] HCATrans 26

[2013] HCATrans 026

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S259 of 2012

No S260 of 2012

B e t w e e n -

PACIFIC TUG (AUSTRALIA) PTY LTD

Applicant

and

MURRAY JAMES HINGSTON

Respondent

Applications for special leave to appeal

HEYDON J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 FEBRUARY 2013, AT 9.32 AM

Copyright in the High Court of Australia

MR R.M. DERRINGTON, SC:   May it please the Court, I appear on behalf of the applicant, with my learned friend, MR A.C. HARDING.  (instructed by Norton Rose Australia)

MR L. KING, SC:   If it please the Court, I appear for the respondent, with my learned friends, MR H.J. HALLIGAN and MR H.S.Y. CHIU.  (instructed by (W.G. McNally & Co)

HEYDON J:   Yes, Mr Derrington.

MR DERRINGTON:   May it please the Court.  The application warrants the granting of special leave because the decision of the Full Court necessarily leads to confusion in relation to two important matters.  The first area is confusion in admiralty matters generally, and other matters which raise admiralty issues, concerning the identification of the relevant intention to consider when determining whether or not a vessel is engaged upon a voyage and, we might add, what that voyage is.  Our submission is that the Full Court of the Federal Court failed to identify the origin of the putative intention of the vessel.

The second area of confusion which arises is that of the manner in which the Seafarers Rehabilitation and Compensation Act interreacts with what is now the ghost of the Navigation Act 1901 and that leads to the question of whether or not the decision in the Tiwi Barge Case was right or wrongly decided.  In respect of that, your Honours, our position is this, is that the Full Court below said expressly they need not decide whether or not Tiwi Barge was correct or not.  However, the decision, the actual decision of the Court, is entirely inconsistent with the Tiwi Barge Case.  The decision below was decided as if the Tiwi Barge Case were wrong.  I will come back to that.

Your Honours, in relation to what we say is the quintessential element in this matter is that there are a variety of circumstances which will lead to a conclusion as to whether a vessel is engaged upon a voyage and what that voyage is, but the quintessential element of that is the intention or purpose with which the vessel undertakes the relevant activities.  In that respect, our submission is that the putative intention or the purpose is that of the entity under whose ultimate control the vessel is at the relevant time.

We say, and we would advance, that that intention is an admixture of both objective intention and subjective intention.  This is where we would say, respectfully, the Full Court erred because the Full Court determined that the intention or the purpose was that not of the sub‑charterer, in this case, which had ultimate control of the vessel as to if it would sail and to where, but considered the intention of the charterer, that is, Pacific Tug.

Might I just identify briefly the facts which give rise to that?  The applicant, Pacific Tug was the charterer of the vessel, the Cape Don, under a bareboat charter.  It entered into a sub‑charter, which was a time charter, with Van Oord, a dredging company.  The vessel, the Cape Don, is a tug.  The vessel Van Oord contemplated using the tug to tow a barge from Dampier in Western Australia to Tangguh in West Papua for a 10 week round voyage.  As I mentioned, that is a time charter, a 10 week charter.  The applicant, that is Pacific Tug, sailed or steamed the vessel, the Cape Don, from Fremantle to Dampier and at that point, your Honours, it gave ultimate control of the Cape Don to the sub‑charterer; that is, it gave ultimate control to Van Oord under the time charter.

Van Oord at that point was entitled to determine if the vessel sailed and to where.  It was after that transfer of control of the vessel was vested in Van Oord that the incident occurred.  But, nevertheless, the incident occurred prior to the vessel getting underway on its voyage to West Papua.  That was relevant because under the provisions of the Navigation Act section 2(2), an artificial construction of when a voyage starts is imposed and for the sake of clarity, it is imposed when the vessel gets underway on its subsequent voyage.

Your Honour, the Full Court, nevertheless, characterised the activities of the vessel, that is, the voyage as being a voyage from Fremantle to Tangguh and back to Dampier.  In our respectful submission, the Full Court erred in doing so because it identified the wrong intention which to ascribe to the vessel at the time of the relevant incident.  Your Honour, in the Tribunal below, the Administrative Appeals Tribunal, Deputy President Handley effectively identified the correct intention.  Can I take your Honours to tab 1, page 14 of the application book?

Your Honours, at paragraphs 41 and 42, Deputy President Handley identified what he saw was the circumstances and that it was in his view “clear that the planned overseas voyage was to begin in Dampier”.  When one talks of the planned voyage it identifies necessarily an intention or a purpose.  His Honour identified various facts which related to the control of the vessel under the – sorry, by Pacific Tug as the bareboat charterer but Deputy President Handley focused attention on what was the intention, in fact, of the sub‑charterer.  This might be picked up by paragraph 42 where his Honour refers to the decision in Port Kembla Coal v Braverus Maritime, the Fortius case.

GAGELER J:   Is the Full Court correct at page 55, about line 45, where it says that:

The Tribunal was not referred to . . . the concluding clause of the definition of “overseas voyage” ‑

MR DERRINGTON:   No, that was not in agreement between the parties, and my recollection is that, in fact, the contrary was true.  Your Honour, can I mention on that point, it makes no difference if that section is actually referred to at page 54 of the appeal book and it gives an extended definition of “overseas voyage”, but the anterior question, the anterior question, your Honour, is in the first line of the definition, “means a voyage in the course of which” and the question is identifying the voyage.

That definition does not mean that any time a ship stops between various ports and subsequently heads overseas, every stop between the two ports is not part of an overseas voyage, it is simply saying, as in Braverus, that a voyage may include stops along the way, but it does not say that any voyage that includes stops or intermittent voyages and then heads overseas is an overseas voyage.  So, in our respectful submission, it makes no difference because the anterior question is, what is the voyage?

Your Honours, at page 183 of the materials can I briefly direct your attention to the decision of your Honour Justice Hely in Port Kembla v Braverus simply to identify to you at page 183 at paragraph 391 the conclusion of his Honour as to what the relevant voyage was?  In that case, there was a charter from Newcastle to Rotterdam.

BELL J:   I am sorry, is this page 183 of the application ‑ ‑ ‑

MR DERRINGTON:   My apologies, your Honour, of the materials book.  Sorry, I do apologise, your Honour.  At 183 and the paragraph is 391, your Honour.  The question there was a vessel that was chartered from Newcastle to Rotterdam under a voyage charter, which perhaps may change things, stopped at Port Kembla where it came into contact with a wharf.  The question was, was the vessel then on an overseas voyage, and towards the foot of that paragraph your Honours will see that his Honour identified that, “This is the route that the Fortius was intended to take”, the intention being the intention identified by the charterer.

GAGELER J:   Is not the purpose of the definition of overseas voyage to invoke the trade and commerce power in the Constitution so as to give the Act the widest possible operation? Now, against that, I think you are saying, yes – against that background why do we read it narrowly?

MR DERRINGTON:   Well, your Honour, the question in that respect might arise anteriorly because the trade and commerce power is, in fact, brought into the Act earlier because under section 19 of the Seafarers Rehabilitation and Compensation Act, the Act applies when the vessel, prescribed ship, is engaged in trade and commerce.  So, in other words, the power is pegged on the trade and commerce power but it arises in an anterior position.  Your Honour, that also arises under the Navigation Act and it is picked up, but the definition has to be given some workable scope.  In our respectful submission, it cannot be, if it means that any time a vessel stops between one and two ports and heads overseas it is an overseas voyage.  The anterior question remains.

Your Honour, at page 55 of the application book, paragraph 10 of the decision of the Full Court, the purpose is referred to twice in that paragraph.  Their Honours identified:

The purpose of the tug leaving Fremantle was to proceed thence with the same crew to Tangguh, after she called at Dampier –

With respect, the putative purpose of the vessel is wrongly identified because there is a failure to take into account the entity which has the ultimate control.  When the vessel left, or was to leave Dampier, the purpose was the purpose of the sub‑charterer.

Your Honour, in relation to these issues, we would respectfully submit that these raise important questions for many reasons.  That is, particularly, because the expression “voyage” is used – was used in the Navigation Act 1901, is used extensively in the Navigation Act 1912, and the same issue arises, that is, to describe or delimit voyages. Under the old authorities, it is called the terminus a quo, that is the beginning, and the terminus ad quem, the end, but the importance is to identify those because it is necessary for the purposes of ascribing the application of the Act. This arises in relation to the Seafarers Rehabilitation and Compensation Act and remains so even though the 1901 Act has been now repealed.

BELL J:   At paragraph 29 of the respondent’s submissions at application book 293, it is suggested that not only has the Act been repealed but that the Minister for Workplace Relations has announced a review of the scheme; an issue might arise about the suitability of this application.

MR DERRINGTON:   Yes, your Honour, the Act has been repealed.  Can I take your Honour to the materials book at page 413?

BELL J:   I think it is not only the repeal of the Act but the question of the consideration of the scheme too.

MR DERRINGTON:   Yes, true, your Honour, though governments come and go.

BELL J:   Indeed.

MR DERRINGTON:   Reviews come and go, some things do not change.  The Navigation Act remained for 110 years. 

BELL J:   Yes, what page?

MR DERRINGTON:   Sorry, your Honour, 413. At 413, section 79 of the Navigation (Consequential Amendments) Act imposes or brings into use the Navigation Act 1901 because it repeals the expression “prescribed ship” from the old Seafarers Rehabilitation and Compensation Act and imposes a new one which effectively keeps in place exactly the same issue.  Your Honour, can I take you to page 403 as well because the Occupational Health and Safety (Maritime Industry) Act does the same thing? So, at the same time that Act is picking up at section 37 of the Navigation (Consequential Amendments) Act but making the change to the definition of “prescribed ship”, that Act is again picking up the exact issue with which was dealt with below.  So, there is the ghost, if I can say that, of the Navigation Act 1901.

Your Honours, could I also mention very briefly that at page 381 of the materials book you will see that the definition of “regulated Australian vessel” ‑ this is under the new regime of the Navigation Act 1912 and at paragraph (1)(c)(i):

the vessel is proceeding on an overseas voyage or is for use on an overseas voyage –

it still raises the same question, delimiting what is, in fact, the voyage?  That is then also picked up by the definition of “overseas voyage” as it appears in section 16 over the page at page 382, your Honours.

GAGELER J:   Now, none of this matters if Tiwi Barge was correctly decided?

MR DERRINGTON:   With respect, no.  It takes away a lot of the application in relation specifically to some aspects but, your Honour, our proposition is broader; that is, it is necessary to identify the legal test for determining whether a vessel when engaged in particular shipping activities is, in fact, engaged upon a voyage and what that voyage is.  So, it actually, as I mentioned, these two provisions or the issue under consideration is a question about the scope of the meaning of the expression “voyage” when used in a legal sense both in the Navigation Act and otherwise, so whether Tiwi Barge is right or wrong will not foreclose the importance of the issue.  Might I move to the Tiwi Barge Case, your Honour?

GAGELER J:   Let me understand that?  If Tiwi Barge is right you do not need to look at this definition, do you?

MR DERRINGTON:   For the purposes of this case alone, that is correct.  In relation to that, we would respectfully suggest that the problem now is that the decision in the Tiwi Barge Case is now rendered most difficult because the decision of the Full Court below proceeded upon the basis that the Tiwi Barge Case was wrong.  We make that out by identifying that ‑ if I can take your Honours to page 55 of the application book.  The consideration to which your Honour referred me to earlier, paragraph 10, talks about the issue of whether or not the vessel was engaged upon an overseas voyage.  The Court determined that it was.  Therefore, as a result of that, it held the vessel was a prescribed vessel.  An application of the Tiwi Barge Case would render any such question completely otiose. 

The Court then went on to say on the following page at page 56 of the application book, paragraph 12, your Honour, that because of what they have concluded they do not have to decide whether or not Tiwi Barge was right or wrong.  The problem is, they actually decided in a manner which says the Tiwi Barge Case is wrong because were they to have followed the Tiwi Barge Case there would have been no reason whatsoever to consider whether or not the vessel was engaged upon an overseas voyage.  That was completely otiose to the application of the Tiwi Barge Case.

GAGELER J:   Another way of putting it is you lost for one reason; they did not have to decide whether you had lost for two reasons.

MR DERRINGTON:   Well, the reason that we lost, with respect, your Honour, is because of an error in approach of the Full Court in relation to identifying the requisite intention but the problem about losing on that ground – because that is the ratio of the case, that is the actual decision.  It is not an obiter, second basis for disposing of the case, it is the reason for disposing of the case and for that reason – sorry, and the reasoning, we would say with respect, completely contrary to the Tiwi Barge Case.  The Tiwi Barge Case would suggest that is something that should not be considered.  May it please the Court, I apprehend that I have covered all the matters in my submission a little early but they are the submissions for the applicant.  May it please the Court.

HEYDON J:   Yes, thank you, Mr Derrington.  We will not trouble you, Mr King.

We are of opinion that there are insufficient prospects of overturning the conclusion which the Full Court reached.  Accordingly, the application for special leave is dismissed with costs.

AT 9.51 AM THE MATTER WAS CONCLUDED