Parker v The Commonwealth [1965] HCA 12

High Court of Australia Windeyer J. Parker v The Commonwealth [1965] HCA 12

ORDER Judgment for the plaintiff for £11,900. The said amount to be divided as follows among the persons for whose benefit the action was brought: To the plaintiff, £11,300: to Frances Evelyn Parker, £600, to be paid into Court and invested for the benefit of the said Frances Evelyn Parker until she attains the age of twenty-one years or it is earlier directed by a Justice of this Court to be paid to her or applied for her benefit. The defendant to pay the plaintiff's costs of the action.

Cur. adv. vult.

March 30 Windeyer J. delivered the following written judgment:—

On 10th February 1964, at night time, two ships of the Royal Australian Navy, the aircraft carrier H.M.A.S. Melbourne and a destroyer H.M.A.S. Voyager, came into collision on the high seas some twenty miles off the Australian coast. The ships were exercising together. The Melbourne struck the Voyager and she sank. Some men were drowned. One of those in the Voyager who lost his life was Horace Stanley Parker. His widow who is the executrix of his will, suing on behalf of herself and a child, brings this action against the Commonwealth, claiming damages on the basis that her husband's death was caused by the negligence of the officers and crew of the two ships and of other servants of the Commonwealth.

The action was commenced in the Admiralty jurisdiction of this Court. But in 1939 Parliament repealed s. 30 (b) of the Judiciary Act and since that date the sole source of the Admiralty jurisdiction of this Court has been the Imperial Act, the Colonial Courts of Admiralty Act, 1890. The jurisdiction thus derived is the same as that which in England the High Court of Justice had in its Admiralty jurisdiction in 1890: see Nagrint v. The "Regis" [1] and F. Kanematsu & Co. Ltd. v. The Ship "Shahzada" [2] , and the discussions of this topic by Professor Cowen in his work Federal Jurisdiction in Australia (1959) pp. 57-65 and by Doctor Wynes in his Legislative, Executive and Judicial Powers in Australia, 3rd ed. (1962) pp. 623-627. Until the enactment of the Maritime Convention Act, 1911 Imp., actions for loss of life could not be brought in the Admiralty jurisdiction in England: Seward v. The "Vera Cruz" [3] . The plaintiff's rights are therefore it seems no greater, perhaps rather less, in an action in the Admiralty jurisdiction than they would be in an ordinary action in the original jurisdiction of the Court. I propose therefore to consider the case as if it were an ordinary action at law: see Huddart Parker Ltd. v. The Ship "Mill Hill" [4] .