FEDERAL COURT OF AUSTRALIA Visscher v Teekay Shipping (Australia) Pty Limited [2012] FCA 299 Citation: Visscher v Teekay Shipping (Australia) Pty Limited [2012] FCA 299 Parties: TIMOTHY VISSCHER v TEEKAY SHIPPING (AUSTRALIA) PTY LTD File number: NSD 2240 of 2010 Judge: COWDROY J Date of judgment: 27 March 2012 Catchwords: PRACTICE AND PROCEDURE – proceedings instituted by seaman claiming unpaid wages under s 72 Navigation Act 1912 (Cth) – proceedings struck out pursuant to s 31A Federal Court of Australia Act 1976 (Cth) – leave granted to appeal as to part of primary judge's decision – appeal upheld – Full Court invites appeal on other issues addressed by primary judge – no substantive hearing yet held – evidence incomplete on critical issues – futility of appeal – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) ss 24; 31A Navigation Act 1912 (Cth) s 72 Cases cited: Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 Palace Shipping Company Pty Ltd v Caine [1907] AC 386 Singh v Super City Home Loans Pty Ltd [2012] FCA 83 Sun Life Assurance Co of Canada v Jervis [1944] AC 111 Visscher v Teekay Shipping (Australia) Pty Ltd [2011] FCA 1 Visscher v Teekay Shipping (Australia) Pty Ltd [2011] FCAFC 137 Visscher v Teekay Shipping (Australia) Pty Ltd )(No 3) [2012] FCA 212 Date of hearing: 22 March 2012 Date of last submissions: 22 March 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 21 Solicitor for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr BKB Cross Solicitor for the Respondent: Norton Rose IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2240 of 2010 BETWEEN: TIMOTHY VISSCHER Applicant AND: TEEKAY SHIPPING (AUSTRALIA) PTY LTD Respondent JUDGE: COWDROY J DATE OF ORDER: 27 MARCH 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Application for Leave to Appeal be refused. 2. Costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2240 of 2010 BETWEEN: TIMOTHY VISSCHER Applicant AND: TEEKAY SHIPPING (AUSTRALIA) PTY LTD Respondent JUDGE: COWDROY J DATE: 27 MARCH 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 By application filed on 13 December 2011 Mr Timothy Visscher ('the applicant') seeks leave to appeal a decision of Katzmann J: see Visscher v Teekay Shipping (Australia) Pty Ltd [2011] FCA 1. 2 The underlying proceedings involve a dispute over wages that the applicant believes he is owed by a respondent as a result of two 'tours of duty' with a ship owned by the respondent. The two sources of unpaid wages that the applicant refers to are payments due to him for leave not taken ('the unpaid leave claim') and for an additional amount of money resulting from him being employed as a casual on his second voyage ('the casual loading claim'). 3 The proceedings have had a somewhat complex history. The applicant brought a claim under s 72 of the Navigation Act 1912 (Cth) ('Navigation Act'). That section provides: If a seaman's wages are not paid in accordance with section 75 before or at the time the seaman is given his or her discharge from a ship, the seaman's wages shall continue to run until the time of the final settlement of his or her wages (and shall be payable at double rates for any period after the time the seaman is given his or her discharge from the ship) unless the delay is due to the seaman's act or default, to a reasonable dispute as to liability for the wages or to any other cause not attributable to the wrongful act or default of the owner or master of the ship. 4 On 4 January 2011 Katzmann J granted the respondent's motion to summarily dismiss the proceedings under s 31A Federal Court of Australia Act 1976 (Cth) ('Federal Court Act') on the grounds that even if the applicant was correct in stating that s 72 of the Navigation Act applied in his circumstances, the exception within that section regarding 'a reasonable dispute as to liability for the wages' would inevitably operate to preclude the applicant's claim. Katzmann J concluded at [65] that the dispute between the parties concerned whether the applicant's employment had been terminated; that the unpaid leave claim and the casual loading claim were related to this issue; and thus the applicant could not establish that there would be no dispute as to liability for the 'wages' as per s 72 of the Navigation Act. Consequently, her Honour ordered that the applicant's claim be dismissed. 5 The applicant sought leave to appeal the decision of Katzmann J. On 12 April 2011 Perram J granted leave to appeal to the Full Court of the Federal Court. However, the grant of leave was restricted to the issue of whether her Honour erred in concluding that there was a reasonable argument that the employment relationship between the parties had not come to an end on 3 March 2004 (the first tour of duty). 6 The appeal was heard on 5 August 2011 with final submissions filed on 6 September 2011. On 4 November 2011 the Full Court of the Federal Court allowed the appeal: see Visscher v Teekay Shipping (Australia) Pty Ltd [2011] FCAFC 137. The Full Court stated at [34]: Her Honour began hearing the motion [to summarily dismiss] on the day originally fixed for the final hearing of the proceedings. Before the primary judge and on this appeal, Teekay was represented by senior and junior counsel and Mr Visscher represented himself. On the second day of hearing before the primary judge, Teekay applied by consent to amend its motion to seek summary judgment under s 31A of the Federal Court of Australia Act as wall as, or in the alternative to, O 20 r 5 of the old [Federal Court of Australia Rules] Teekay contended that the facts in Mr Visscher's evidence demonstrated that it had an unassailable defence for the purposes of s 78 of the Act. This was that there was no reasonable prospect that Mr Visscher could negate Teekay's position that there was a reasonable dispute as to his entitlement to be paid his wages immediately after his discharges from Broadwater on 3 March 2004 and 26 May 2004. Since the appeal has been confined to the position at the time of the first of those occasions, it is not necessary to consider the second. Suffice to say, that having regard to the conclusion we have reached that neither the primary judge nor this Court was given adequate assistance by Teekay as to the law, we would be disposed to grant Mr Visscher leave, if he is so advised, to make a fresh application for leave to appeal in respect of the balance of his proceedings. [Emphasis added] 7 The Full Court concluded at [66] that contrary to the findings of Katzmann J authorities such as Palace Shipping Company Pty Ltd v Caine [1907] AC 386 indicated that the applicant had more than a reasonable prospect of successfully prosecuting the claim because there was no dispute as to Teekay's liability to pay the applicant his wages and entitlements due on 3 March 2004 (after his first tour of duty), so as to provide a defence under s 72 of the Navigation Act. 8 Based upon its findings the Full Court stated at [68]: We would allow the appeal with costs and order that the orders made by the primary judge on 4 January 2011 be set aside. The consequence is that the proceedings on the claim based on Teekay's failure to pay Mr Visscher his wages in full on 3 March 2004 must go to trial. It will be a matter for the primary judge to determine, consistently with these reasons, what orders should now be made on Teekay's motion for summary judgment or summary dismissal. 9 On 12 December 2011 the applicant filed an application for an extension of time and leave to appeal. Such notice is currently before this Court. A draft notice of appeal was attached to the affidavit filed by the applicant in support of the application. The applicant seeks to appeal from the balance of Katzmann J's decision, that is, those issues that were decided by her Honour on the motion for summary judgment, but which were not the subject of the leave to appeal granted by Perram J. 10 On 15 December 2011 Katzmann J made orders by consent dismissing the respondent's notice of motion for summary judgment. Although the fact that the order was made by consent is not apparent from the face of the order, Katzmann J indicated in her decision of 13 March 2012 that the order was by consent (see Visscher v Teekay Shipping (Australia) Pty Ltd )(No 3) [2012] FCA 212 at [2]). The respondent's written submissions in these proceedings also acknowledge that the order dismissing the notice of motion was made by consent. 11 On 6 March 2012 Edmonds J made an order granting an extension of time until 14 December 2011 for the applicant to file an application for leave to appeal from those parts of Katzmann J's decision that were not determined by the Full Court. As a consequence of such order the applicant's application is within time. 12 In oral submissions the applicant indicated his concern that Katzmann J's decision to grant the respondent's motion for summary judgment on the basis that the respondent would inevitably be able to succeed would mean that her Honour would reach the same conclusion when the matters went before her Honour again for hearing. The applicant also expressed the concern that although Katzmann J's decision may have been set aside by the Full Court, there was the possibility that any findings of fact or intermediate conclusions in her Honour's judgment might remain intact. For this reason the applicant submits that the Full Court should have the opportunity to review those issues. The applicant also relied upon paragraph [34] of the Full Court judgment (set out at [6] above) to support his proposition that the Full Court as constituted by the same judges who heard the matter previously would be better placed to determine the matters. 13 The respondent submitted that given that the Full Court set the decision of Katzmann J aside, there are no findings remaining which could be the subject of the appeal by the respondent. Furthermore, the respondent submitted that it was not the practice of this Court to transfer matters to the Full Court when there were still evidentiary issues to be determined. The respondent indicated that it proposed to call witnesses to give evidence regarding the circumstances of the applicant's dismissal in each of the two periods of service and regarding practices in the maritime industry generally at the hearing. The respondent claimed that the Full Court did not have before it all of the necessary evidence to determine the entirety of the applicant's claim, particularly with respect to the second period of service of the applicant. CONSIDERATION 14 This Court has recently considered the principles regarding leave to appeal interlocutory decisions in Singh v Super City Home Loans Pty Ltd [2012] FCA 83. Katzmann J stated at [74]: In general, leave will not be granted to appeal an interlocutory judgment unless it is attended with sufficient doubt to warrant its reconsideration and substantial injustice would result if leave were refused and the judgment was wrong. These are the principles that guide applications of this kind, absent special considerations, although it may be accepted that the court should not consider that it is constrained by anything other than the legislative policy against bringing appeals of this kind except where, acting judicially, it finds reason to grant leave: Décor Corporation Pty Ltd v Dart Industries Inc (1997) 33 FCR 397. Where the practical effect of the interlocutory judgment, however, is final, as is the case with a decision under s 31A, leave will usually be granted if there is any doubt about the decision at first instance (Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [43] per French J; Beaumont and Finkelstein JJ agreeing) or if a prima facie case exists for granting leave to appeal (Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156 at [31]). 15 It is clear from cases such as Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 at 349 that a court must consider the merits of a prospective appeal in deciding whether to grant leave to appeal. One aspect of the merits of the appeal is whether the appeal would be futile in that a successful appeal would not result in the applicant being in a better, or at least different, position to the one he is in now. 16 In Sun Life Assurance Co of Canada v Jervis [1944] AC 111, Viscount Simon LC stated at 113: My Lords, in my opinion, the House should decline to hear this appeal on the ground that there is no issue before us to be decided between the parties. The difficulty is that the terms put on the appellants by the Court of Appeal are such as to make it a matter of complete indifference to the respondent whether the appellants win or lose. The respondent will be in exactly the same position in either case. He has nothing to fight for, because he has already got everything that he can possibly get, however the appeal turns out, and cannot be deprived of it. I do not think that it would be a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way. 17 The applicant in this case is in the same position as the appellant in Sun Life. The only order that a Court of Appeal could make in favour of the applicant with respect to the other issues is that the judgment of Katzmann J be set aside and the issues remitted to her for determination on hearing. 18 Even if Katzmann J had expressed particular views in the judgment which is the subject of this application, the Full Court has, by its decision, indicated that it would grant leave to appeal with regard to those findings. However, while such a statement provides some support for the present application, the respondent informed the Court that it would seek to call evidence which may have an important bearing on the factual findings to be made by her Honour. In these circumstances it would be premature to grant leave to appeal at this stage, despite the Full Court's indication. 19 The Full Court's decision will be binding on this Court as constituted by Katzmann J at the hearing of this matter. If the applicant is still dissatisfied by the eventual judgment of Katzmann J then he will have the opportunity to appeal to the Full Court as of right: see s 24 of the Federal Court Act. 20 The Court is satisfied that the interests of the proper administration of justice require a hearing on all issues prior to any appeal. Further, the applicant's rights will not be prejudiced if his application for leave is refused at this point. The proceedings are listed for hearing in May 2012. At that hearing, no doubt all the evidence on all issues will be adduced. The early hearing will be beneficial to both parties. 21 It follows that leave to appeal should be refused. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 27 March 2012