John James Tart v Stephen Paul Tart and Lisa Tart [1995] ACTSC 1 (19 January 1995)

SUPREME COURT OF THE ACT

JOHN JAMES TART v. STEPHEN PAUL TART and LISA TART
No. SC918 of 1992
Number of pages - 5
Worker's Compensation - Courts and Judicial System

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Worker's Compensation - injury occurring on fishing vessel eight kilometres offshore - worker's compensation insurance.

Courts And Judicial System - cross-vesting - jurisdiction - application for transfer of proceedings from location where writ was issued to location where injury occurred - relevant criteria for consideration - balance of convenience - connection with the forum - whether interests of justice require a transfer of the proceedings.

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)

Workers Compensation Act 1987 (NSW), s21
Coastal Waters (State Powers) Act 1980
Seas and Submerged Lands Act 1973 (Cth)

Dawson v Baker (1994) 120 ACTR 11
Stephens v Head [1993] HCA 19; (1993) 176 CLR 433
New South Wales v The Commonwealth [1975] HCA 58; (1975) 135 CLR 337
Pearce v Florenca [1976] HCA 26; (1976) 135 CLR 507
Port MacDonnell Fishermen's Association Inc v South Australia [1989] HCA 49; (1989) 168 CLR

340

Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1
Hanley v Hanley Pty Ltd (1992) 111 FLR 16
Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41
Canadian National Steamships Co v Watson (1939) 1 DLR 273
McKain v R W Miller and Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1

HEARING

CANBERRA, 24 November 1994
19:1:1995

Counsel for the Plaintiff: Mr R Crowe

Instructing Solicitors: Maliganis Edwards Johnson

Counsel for the Defendants: Mr M Cranitch

Instructing Solicitors: Hickson, Lakeman and Holcombe by their
agents Abbott Tout Russell Kennedy

ORDER

This Court Orders that the application to transfer these proceedings to the Supreme Court of New South Wales be refused.

DECISION

HIGGINS J This is an application on behalf of the defendants to transfer these proceedings to the Supreme Court of New South Wales, pursuant to the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (the Cross-Vesting Act).

2. Proceedings were commenced in this Court by writ issued on 23 December 1992. The defendants were served with the writ on 1 January 1993 at Rivett in the Australian Capital Territory. The cause of action was for damages for personal injury caused to the plaintiff by the negligence of the defendants as the employers of the plaintiff.

3. The statement of claim asserts that the injury happened on 25 September 1990:

... whilst lifting and moving heavy boxes of fish in the course
of his employment on the "Veronica" (a fishing trawler) then
situate approximately 8 kilometres offshore from Bermagui NSW...

4. The plaintiff was, at the time of his injury, temporarily resident in New South Wales. His usual place of residence was at Kambah in the Australian Capital Territory. The defendants then resided at Bermagui, New South Wales.

5. The plaintiff was initially treated for his injury by a doctor at Narooma, New South Wales. Subsequent treatment was rendered by medical practitioners in the Australian Capital Territory.

6. Other witnesses relevant to damages are resident in the Australian Capital Territory.

7. The defendants, who are husband and wife, separated about 12 months ago. The secondnamed defendant now resides in the Australian Capital Territory. The firstnamed defendant still resides at Bermagui but frequently comes to Canberra to visit his family.

8. It is the plaintiff's case that the lifting duties required of him constituted an unsafe system of work. A report from Dr Neil Adams, a consultant, has been produced by the plaintiff. It could be concluded from that report, if admitted into evidence and accepted, that the plaintiff has a reasonably arguable case. It is not necessary for me to express any view of the likelihood of the plaintiff succeeding. At this stage, it cannot be assumed that the defendants will concede liability.

9. It is apparent to me that, having regard to the balance of convenience, connections with the forum and the reasons for and the choice made by the plaintiff of the forum, refusal of the application would be the appropriate course. The mere fact that the event happened off the New South Wales coast, not in the Australian Capital Territory, and may require the application of the laws of New South Wales, is not sufficient, in my view, to disturb a conclusion that the interests of justice do not require a transfer: see Dawson v Baker (1994) 120 ACTR 11. The law of New South Wales applicable to the determination of liability is the same in each jurisdiction. It is not a law peculiar to that State. Damages would be calculated according to the laws of the Territory: see Stephens v Head [1993] HCA 19; (1993) 176 CLR 433.

10. However, the defendants raise one issue which their counsel contends should lead to a contrary conclusion.

11. The contention is that if liability is imposed upon the defendants by an order of a court of New South Wales for damages assessed in accordance with the laws of New South Wales, then the employers' workers compensation insurer will be obliged to indemnify the defendants in respect of those damages, but not otherwise. Thus, it is said, the interests of justice to both the plaintiff and the defendants would require a transfer.

12. Mr Smith, Claims Manager of the defendants' insurer, deposed that, at the time of the alleged injury, the defendants were covered by an Employer's Insurance Policy issued pursuant to the Workers Compensation Act 1987 (NSW) (as amended). He stated that if damages were assessed according to the laws of the Australian Capital Territory then the insurer would not regard itself as required to indemnify the defendants in respect of any sum exceeding that which would have been awarded according to the laws of New South Wales.

13. It may be accepted that the policy issued by the defendants' insurer is prima facie valid. The accident happened in Australian territorial waters, beyond the usual limit for State power: see New South Wales v The Commonwealth [1975] HCA 58; (1975) 135 CLR 337.

14. However, that decision was qualified by Pearce v Florenca [1976] HCA 26; (1976) 135 CLR 507. In that case it was held that a State might, consistently with that decision, regulate fishing activities off its coast line.

15. Subsequently, the Commonwealth enacted the Coastal Waters (State Powers) Act 1980. That Act expressly enabled States to legislate for the regulation of fisheries beyond the coastal waters of the State pursuant to an arrangement with the Commonwealth: see Port MacDonnell Fishermen's Association Inc v South Australia [1989] HCA 49; (1989) 168 CLR 340.

16. The issue was, in my view, put beyond doubt in Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1. That case confirmed that State law may validly provide for workers' compensation for crew employed on vessels registered in the State wherever injury might occur. The present case does not involve an interstate or international voyage. It falls within the purview of s21 of the Workers Compensation Act 1987 (NSW).

17. It does not follow, of course, that simply because the Workers Compensation Act (NSW) applies to the rights of the plaintiff to compensation, New South Wales law will govern the tortious liability of the defendants to the plaintiff: see, for example, Hanley v Hanley Pty Ltd (1992) 111 FLR 16. Further, the applicable law for the purposes of the law of torts is not altered by reference to the proper law applicable to the contract of employment. It is not necessarily the same. It is the law applicable to the place where the tort was committed (see Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41). The proper law of the contract of employment may safely be assumed to be the law of New South Wales. There is authority for the view that the law applicable in the home port will apply generally to a vessel whilst on the high seas: see Canadian National Steamships Co v Watson (1939) 1 DLR 273. Further, it seems to me that the effect of the Coastal Waters (State Powers) Act 1980 is to extend State law to the limit of the Australian territorial sea as defined by the Seas and Submerged Lands Act 1973 (Cth). That would provide a further basis for assuming that the law of New South Wales would govern any tortious liability of the defendants to the plaintiff.

18. I therefore assume that the law to be applied to ascertain the tortious liability of the defendants to the plaintiff is the substantive law of New South Wales: see McKain v R W Miller and Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1.

19. The policy of indemnity issued by the defendants' insurer as required by the Workers Compensation Act (NSW) provides for an indemnity "for an unlimited amount in respect of the employer's liability independently of the Act (being a liability under a law of New South Wales) for any injury to any such worker".

20. It may be noted at the outset that the policy does not purport to limit the quantum attaching to or resulting from a finding of liability "under a law of New South Wales" to an amount which would be awarded if the action was brought in New South Wales rather than this Territory. The policy, if interpreted according to its terms, prima facie requires full indemnity for such liability. In any event, that is not an issue to be determined in these proceedings. It is an issue between the defendants and their insurer should it be regarded as necessary by either to dispute any indemnity which might be sought or given following the award of damages, if any, to the plaintiff. It is enough to conclude that the result contended for or on behalf of the defendants does not appear to be so likely as to outweigh the matters favouring retention of the proceedings in this Court.

21. A more difficult question might arise if, for example, the tortious liability had arisen, say, under the laws of the Australian Capital Territory. It may be that, unless a breach of a contract of employment to which New South Wales law is applicable is established, the indemnity would be inapplicable (and see Hanley v Hanley Pty Ltd (supra)). However, that disadvantage would exist independently of the jurisdiction within which the action has been commenced.

22. In this matter there does not appear to be any obvious prejudice to the defendants in declining their application.

23. It follows from the above that I am not satisfied that it is in the interests of justice to transfer these proceedings to the Supreme Court of New South Wales.

24. The application is refused. I will hear the parties as to costs.