FEDERAL COURT OF AUSTRALIA COMPENSATION - seafarers' compensation - appeal from AAT - 'employee' means 'a seafarer' - compensation for injury resulting in death - definition of 'prescribed ship' - definition of 'inter-State voyage' - vessel capsized before reaching destination - whether engaged in inter-State travel. Seafarers Rehabilitation and Compensation Act 1992 (Cth) Navigation Act 1912 (Cth) Administrative Appeal Tribunal Act 1975 (Cth) TIWI BARGE SERVICES PTY LTD v JULIE ANN STARK DG 2 of 1997 NORTHROP, COOPER and MANSFIELD JJ DARWIN 3 SEPTEMBER 1997 GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA DARWIN DISTRICT REGISTRY DG 2 of 1997 On appeal from the Administrative Appeals Tribunal constituted by Deputy President Forgie BETWEEN: TIWI BARGE SERVICES PTY LTD Applicant AND: JULIE ANN STARK Respondent JUDGES: NORTHROP, COOPER and MANSFIELD JJ DATE OF ORDER: 3 SEPTEMBER 1997 WHERE MADE: DARWIN THE COURT ORDERS THAT: 1. The appeal is dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA DARWIN DISTRICT REGISTRY DG 2 of 1997 On appeal from the Administrative Appeals Tribunal constituted by Deputy President Forgie BETWEEN: TIWI BARGE SERVICES PTY LTD Applicant AND: JULIE ANN STARK Respondent JUDGES: NORTHROP, COOPER and MANSFIELD JJ DATE: 3 SEPTEMBER 1997 PLACE: DARWIN REASONS FOR JUDGMENT THE COURT: On 6 August 1995 the vessel KeppelTrader left the Port of Darwin in the Northern Territory on a voyage to the Port of Wyndham in Western Australia. At about 0800 hours on 7 August 1995 at a point approximately ten nautical miles north west of Pearce Point in Northern Territory waters the KeppelTrader capsized. The vessel had not left Northern Territory waters. The vessel never reached its intended destination namely the Port of Wyndham. As a result of the capsize of the KeppelTrader, Robert James Jones ("the employee") was swept overboard and drowned. He was employed by Tiwi Barge Services Pty Ltd ("the employer") as a crewman on the KeppelTrader on the business of that vessel. Julie Ann Stark ("Ms Stark"), who, for present purposes, can be treated as the spouse and a dependant of the employee, made a claim against the employer pursuant to s 26(1) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) ("the Compensation Act"). That subsection provides:- "26.(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." The employer denied liability to pay compensation to Ms Stark. On review, the Administrative Appeals Tribunal ("the Tribunal") set aside the decision for the employer and made a decision that Ms Stark was entitled to compensation pursuant to s 29(3) of the Compensation Act. That subsection prescribes the amount of compensation to be paid, a matter which is not before the Court. Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), the employer has appealed to the Federal Court on questions of law. The questions of law raised by the notice of appeal are:- "(a) Whether the vessel "Keppel Trader" was a "prescribed ship" as that term is defined in the Seafarers Rehabilitation and Compensation Act 1992 at the relevant time; (b) Whether Part II of the Navigation Act 1912 applied to the vessel "Keppel Trader" at the relevant time." A number of other issues were raised in the proceedings before the Tribunal but have not been made the subject of the appeal. A notice of contention was given on behalf of Ms Stark but it is not necessary to consider those matters separately. Pursuant to s 44(3) of the Administrative Appeals Tribunal Act, the Chief Justice directed that the appeal be heard by a Full Court. The questions of law raised by the appeal, as stated in written submissions filed on behalf of the employer, involved:- "(a) the definition of "prescribed ship" in s.3 of the Compensation Act; and (b) incidentally, the definition of "inter-State voyage" in s.6(1) of the Navigation Act 1912." The resolution of the questions of law depend upon the construction of the relevant provisions of the Compensation Act and the Navigation Act (Cth) in the context of the limitations on legislative power imposed on the Australian Parliament by the Constitution and the application of those provisions to the undisputed facts of the appeal. On its face, there is no limitation on the width of the provisions contained in s 26(1) of the Compensation Act. It provides that if an employee suffers injury that results in his or her death, incapacity for work, or impairment, compensation is payable. The width of the provision is limited by the definition of "employee" contained in the Compensation Act. For present purposes, under s 4(1) "employee" means "a seafarer". In s 3 a "seafarer" is defined, for present purposes, as being "a person employed in any capacity on a prescribed ship, on the business of the ship". The words "prescribed ship", for present purposes, are defined in s 3 to mean "(a) a ship to which Pt II of the Navigation Act applies." Section 19 of the Compensation Act identifies a number of heads of power contained in the Constitution under which that Act is enacted. For present purposes reference need be made to one of those powers only namely that referred to in s 19(1) which provides:- "19.(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; or (b) among the States; or (c) within a Territory, between a State and a Territory or between 2 Territories." This provision imposes a further limitation on the application of s 26(1) of the Compensation Act. Applying that limitation to the facts of this case, the issue is did the Compensation Act apply to the employment of Mr Jones as a seafarer on the Keppel Trader while the ship was engaged in trade or commerce between the Northern Territory and Western Australia. The issue between the parties can be narrowed further but before identifying the narrow issue, other facts, which are not in dispute, should be stated. The Keppel Trader was a ship registered in Australia. At the time she capsized, she was engaged in trade and commerce between a Territory and a State. Under s 19(1) of the Compensation Act, that Act applied if the Keppel Trader was a "prescribed ship". For the purposes of the Compensation Act, a prescribed ship includes a ship to which Pt II of the Navigation Act applies. Section 10 is within Pt II of the Navigation Act. That section limits the application of the provisions contained in Pt II which is headed "Masters and Seamen". For present purposes, the relevant provisions of s 10 are:- "10. Except so far as the contrary intention appears, this Part applies only to: (a) a ship registered in Australia; (b) ...... (c) ...... and to the owner, master and crew of such a ship." Under s 7A of the Navigation Act, a reference in that Act to a ship registered in Australia shall be read as a reference to a ship registered under the Shipping Registration Act 1981. The Keppel Trader was such a ship. There is much to be said for the view that once it is established that the Keppel Trader was a ship registered in Australia and engaged in trade or commerce within a Territory or between a State and a Territory she was a ship to which Pt II of the Navigation Act applied and thus was a prescribed ship within the meaning of those words when used in the Compensation Act; see s 3. It follows that the other provisions of the Compensation Act apply and a liability to pay compensation is imposed on the employer. Counsel for the employer contended that this conclusion did not follow. He contended that Pt II of the Navigation Act had a limited application in that Pt II, including s 10, was bound by the provisions contained in Pt 1 of the Navigation Act. Pt 1 is headed "Introductory" and comprises ss 1 to 9. Section 2 imposes limitations on the application of the Navigation Act. For present purposes, the relevant provisions of s 2 are:- "2.(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; (c) an inland waterways vessel; or (d) a pleasure craft; 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." Counsel referred to the phrase "inter-State voyage" appearing in par 2(1)(a) and the definition of that phrase appearing in s 6 as namely:- "in relation to a ship, means a voyage (other than an overseas voyage) in the course of which the ship travels between: (a) a port in a State and a port in another State; (b) a port in a State and a port in a Territory; or (c) a port in a Territory and a port in another Territory;" In this context, the essence of the submissions made on behalf of the employer are summarized:- 1. The Compensation Act applies to employees on a "prescribed ship" that is engaged in trade or commerce "within a Territory (or) between a State and a Territory". 2. A "prescribed ship" is defined to mean "a ship to which Part II of the Navigation Act applies". 3. Pt II applies to a ship registered in Australia. 4. Pt II is governed by the provisions of the Navigation Act including those contained in Pt 1. Section 2 provides that the Navigation Act does not apply in relation to "a trading ship proceeding on a voyage other than an overseas voyage or an inter-State voyage". 5. This means that, for present purposes, the Navigation Act does not apply to a ship unless that ship is proceeding on an inter-State voyage. 6. An inter-State voyage is in relation to a voyage defined to mean "a voyage (other than an overseas voyage)" in the course of which the ship travels between a port in a State and a port in a Territory. 7. In this context the word "travels" has importance and a voyage by a ship from a port in a Territory which does not reach a port in another State cannot, by definition, be engaged on an inter-State voyage. 8. In the present case, since the Keppel Trader did not reach its destination being the Port of Wyndham, she was not engaged in an inter-State voyage when she capsized and the employee died. These submissions are rejected. The provisions of s 19(1) of the Compensation Act are clear. They are designed to limit the application of the Compensation Act to matters within the legislative power of the Commonwealth. The limitation has two branches namely "prescribed ships" and prescribed ships engaged in trade or commerce between Australia and places outside Australia, or among the States, or within a Territory, between a State and a Territory or between two Territories. These concepts are well understood and applied. Here it is not disputed that the Keppel Trader at the time she capsized, was engaged in trade or commerce between a Territory and a State. The definition of the words "prescribed ship" is contained in s 3 of the Compensation Act by reference to a ship to which Pt II of the Navigation Act applies. The relevant provision, for definition purposes, is s 10 of the Navigation Act, the relevant parts of which are clear, namely a ship registered in Australia. The Keppel Trader was registered in Australia. Therefore, Pt II of the Navigation Act applied to her and in particular to her owner, master and crew. In these circumstances there is no requirement to consider Pt I of the Navigation Act. In any event, in the opinion of the Court, the submissions made on behalf of the employer should be rejected. They depend upon an artificial construction of the word "travels" contained in the definition of the words "inter-State voyage". The definition of the words "overseas voyage" uses the same word in a similar context. In s 2 the word "proceed" appears to be used as a synonym for the word "travel". It would make a mockery of the Navigation Act provisions if they applied only where a ship completed its voyage by travelling to the port to which she had commenced to proceed or to travel. In other words, if the ship sunk before reaching that port she could not have been engaged in an inter-State or an overseas voyage. In these circumstances it is interesting to note s 5(1) of the Compensation Act:- "5.(1) In a claim for compensation under section 29, if it is established that a prescribed ship has not been heard of for at least 3 months the ship is taken to have been lost with all on board immediately after the ship was last heard of." The facts relevant to any case will determine whether a ship is engaged on an inter-State voyage. The deeming provisions of s 2(2) of the Navigation Act extend the nature of a voyage but there is no need to rely upon the subsection in this case. The evidence is clear. The Keppel Trader was involved in a voyage from the Port of Darwin to the Port of Wyndham. There is no evidence of any intentional change of plan or of destination. Before reaching the Port of Wyndham, she capsized and the employee, a member of her crew, was killed. She was engaged in an inter-State voyage within the meaning of those words in the Navigation Act. The provisions of the Compensation Act apply. The appeal is dismissed with costs. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment of the Court. Associate: Date: Counsel for the Appellant: Mr M White QC Solicitors for the Appellant: Messrs Mildrens Counsel for the Respondent: Mr J Reeves Solicitors for the Respondent: Messrs Cridlands Date of Hearing: 3 July 1997 Date of Judgment: 3 September 1997