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 277 Parties: MURRAY JAMES HINGSTON v PACIFIC TUG (AUSTRALIA) PTY LTD File numbers: NSD 2114 of 2011 NSD 683 of 2012 Judges: 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 Act 1992 (Cth) ss 3, 4, 9, 19, 26, 78 Cases 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 Applicant AND: 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 Appellant AND: 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 Applicant AND: PACIFIC TUG (AUSTRALIA) PTY LTD Respondent 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 Applicant AND: PACIFIC TUG (AUSTRALIA) PTY LTD Respondent JUDGES: RARES, BUCHANAN AND KERR JJ DATE: 21 AUGUST 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 10 March 2009, the applicant, Murray Hingston, was injured in the Port of Dampier in Western Australia on the deck of the tug, Cape Don. He was employed by the respondent, Pacific Tug Australia Pty Limited, as a marine engineer. Pacific Tug was the bareboat charterer of the tug. Mr Hingston and all the crew, other than a mate, had joined Cape Don in Fremantle, where she had been provisioned and bunkered to undertake a time charter for 10 weeks that was to commence in Dampier. The time charter provided for the tug to tow the dredge, Hippopotes, to work at Tangguh in West Papua and then to return the dredge to Dampier. The charterparty provided that, while at Tangguh, Cape Don was to remain alongside the dredge, provide accommodation for the dredge's crew and assist in operations on site. 2 Mr Hingston's accident happened as Cape Don was in the course of making fast to the dredge in preparation for the tow. He claimed compensation for his injuries against Pacific Tug under the Seafarers Rehabilitation and Compensation Act 1992 (Cth), (the SRC Act). Initially he brought proceedings in the Administrative Appeals Tribunal based on what he asserted was a deemed refusal of his application for compensation by Pacific Tug. The Tribunal held that it had no jurisdiction to decide that application on two bases: first, Mr Hingston had not made any application under s 78 of the SRC Act for reconsideration of the deemed refusal of his initial claim; and, secondly, because Cape Don was not, at the time of the accident, a "prescribed ship" within the meaning of that expression in the SRC Act. 3 After Mr Hingston appealed to this Court on questions of law arising out of the Tribunal's determination, he made a further application for compensation to Pacific Tug under the SRC Act. Pacific Tug rejected that application and, on a review under s 78, that rejection was confirmed. Mr Hingston brought a second application to the Tribunal. The Tribunal once again found that it had no jurisdiction, but only on the second basis of its first decision. Mr Hingston then filed a second appeal to this Court from that decision. The Chief Justice determined that each appeal should be referred to a Full Court under s 44(3) of the Administrative Appeals Tribunal Act 1975. The Issue 4 The critical live issue is whether the Tribunal had jurisdiction to entertain Mr Hingston's second application to it. That issue falls to be determined on the basis of whether he had made a valid claim for compensation under the SRC Act. In short, the Tribunal determined that Cape Don had not got under way for the purposes of proceeding on an overseas voyage at the time of the accident. The statutory scheme 5 The SRC Act relevantly provided as follows: 3 General definitions In this Act, unless the contrary intention appears: prescribed ship means a ship to which Part II of the Navigation Act [1912 (Cth)] applies … … seafarer means a person employed in any capacity on a prescribed ship on the business of the ship … 4 Employees (1) In this Act, unless the contrary intention appears: "employee" means: (a) a seafarer; … 9 Injury arising out of, or in the course of, employment … (2) An injury is also to be treated as having so arisen, for the purposes of this Act, if it happened: … (b) if the employee is a seafarer: (i) while the employee was on board the prescribed ship on which he or she was employed or engaged; … 19 Application of Act (1) This Act applies to the employment of employees on a prescribed ship that is engaged in trade or commerce: (a) between Australia and places outside Australia; … 26 Compensation for injuries (1) If an employee suffers an injury that results in his or her death, incapacity for work, or impairment, compensation is payable for the injury. 6 Cape Don was a registered ship within the meaning of Part II of the Navigation Act 1912 (Cth) (s 10(a)). On Mr Hingston's case, that was determinative because of the decision of Northrop, Cooper and Mansfield JJ in Tiwi Barge Services Pty Limited v Stark (1997) 78 FCR 218. In the Tribunal, both parties accepted that that decision bound the Tribunal. On Mr Hingston's argument, that concession should have led the Tribunal to find it had jurisdiction. However, Pacific Tug had informed the Tribunal that it proposed to challenge the correctness of Tiwi Barge in this Court. Despite Pacific Tug's argument before us, for the reasons that follow, it is not necessary to decide that question. 7 The gravamen of the Tribunal's reasoning (and Pacific Tug's principal argument before the Tribunal and this Court) was that the exclusion in s 2(1) of the Navigation Act had the effect that Cape Don was not a ship to which that Act applied at the time of the injury, because she had not got under way for the purpose of proceeding on an overseas voyage. The critical provisions of Pt I of the Navigation Act were as follows. 2 Application of Act (1) Except in so far as the application of this section is expressly excluded by a provision of this Act, this Act does not apply in relation to: (a) a trading ship proceeding on a voyage other than an overseas voyage or an inter-State voyage; (b) an Australian fishing vessel proceeding on a voyage other than an overseas voyage; … or in relation to its owner, master or crew. (2) A ship shall, for the purposes of this section, be deemed to be proceeding on a voyage from the time when it is got under way for the purpose of proceeding on the voyage until the time when it is got under way for the purpose of proceeding on another voyage. … 6 Interpretation (1) In this Act, unless the contrary intention appears: overseas voyage, in relation to a ship, means a voyage in the course of which the ship travels between: (a) a port in Australia and a port outside Australia; … whether or not the ship travels between 2 or more ports in Australia in the course of the voyage. … trading ship means a ship that is used, or, being a ship in the course of construction, is intended to be used, for, or in connection with, any business or commercial activity and, without limiting the generality of the foregoing, includes a ship that is used, or, being a ship in the course of construction, is intended to be used, wholly or principally for: … (b) the provision of services to ships or shipping, whether for reward or otherwise; … (Emphasis added.) The Tribunal's Reasons 8 The Tribunal dismissed Mr Hingston's second application by adopting its earlier reasons for concluding that, at the time of the accident, Cape Don was not a prescribed ship. In its first reasons, the Tribunal found that ([44]): …At the time of the accident, it [the tug] was not yet proceeding on an overseas voyage with the consequence that the SRC Act did not apply at the time the accident occurred. 9 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 10 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. 11 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. 12 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 13 Pacific Tug filed a notice of contention which it addressed in written submissions. It argued that Cape Don was not engaged, at the time of the injury, in trade or commerce between Australia and places outside Australia within the meaning of s 19(1)(a) of the SRC Act. However, Pacific Tug accepted that, once the voyage to Tangguh had commenced, then Cape Don was so engaged. Based on our conclusion that the voyage had commenced in Fremantle, the contention fails. Costs 14 Mr Hingston must have his costs of the second appeal and so much of the costs of the first appeal as reflected work necessary for, or relevant to, the second appeal. The remaining issues in the first appeal became moot. Therefore, there should be no order as to costs of the remaining work necessary for, or relevant to, the first appeal. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Rares, Buchanan and Kerr. Associate: Dated: 28 August 2012