CSL Australia Pty Limited v Formosa [2009] NSWCA 363

Reported Decision: 235 FLR 273261 ALR 441[2010] ALMD 862[2010] ALMD 863[2010] ALMD 985[2010] ALMD 987[2010] ALMD 1024[2010] ALMD 1025[2010] ALMD 1222[2010] ALMD 1223

New South Wales Court of Appeal

CITATION: CSL Australia Pty Limited v Formosa [2009] NSWCA 363

HEARING DATE(S): 24 June 2009

JUDGMENT DATE: 11 November 2009

JUDGMENT OF: Allsop P at 1; Basten JA at 1; Handley AJA at 1

DECISION: 1. Appeal and cross-appeal dismissed. 2. Appellants pay 75 per cent of the costs of the respondent of the appeal and cross-appeal.

CATCHWORDS: FEDERAL JURISDICTION – Federal jurisdiction exercised by State Courts – Admiralty and maritime jurisdiction – matter arising under a law of the Parliament - TORTS - negligence – duty of care – duty of ship owner and operator to stevedore – duty to exercise care in respect of the safety of stevedores coming on board ship in order to undertake loading and unloading – nature and scope of duty - relationship between obligations under the Occupational Health and Safety (Maritime Industry) Act 1993 (Cth) and the common law duty of care – no statutory cause of action – impact on duty of care of delegated legislation imposing conformable obligations on another person – Marine Orders Part 32 under Navigation Act 1912 (Cth) – Marine Orders do not terminate the duty of care - TORTS - negligence – breach of duty - breach in failing to sweep the iron ore slurry from the deck – breach in failure to direct use of other side of the deck - breach not a failure to warn - evidence before primary judge supported finding of breach Admiralty Act 1988 (Cth) s 4(3)(c) Judiciary Act 1903 (Cth) – s 79 – s 80 Navigation Act 1912 (Cth) – Marine Orders Part 32 Occupational Health and Safety Act (Maritime Industry) 1993 (Cth) – s11 – s13