Far Eastern Shipping Company Limited v Abramkin [1999] VSCA 107

Court of Appeal (Vic)|1999-07-23|Before: CALLAWAY and BATT, JJ.A.

APPEAL - Extension of time to institute appeal - Distinguished from application for reinstatement - Jackamarra v. Krakouer [1998] HCA 27; (1978) 72 A.L.J.R. 819 explained and applied. CONFLICT OF LAWS - Shipping - Whether law of flag applies to tort committed on vessel in territorial waters - County Court Act 1958, s.36.

The time for appealing expired on 25 June 1999, but the seven day delay between that date and the date of filing of the summons is short and comprehensively explained in two affidavits filed on behalf of the applicant. So much is properly conceded by senior counsel for the respondent. In Jackamarra v. Krakouer [1998] HCA 27; (1998) 72 A.L.J.R. 819, however, the High Court emphasized the distinction between an application for extension of time within which to begin an appeal and an application for extension of time once an appeal is on foot. In the former case, of which this is an example, some attention must be given to the prospects of success, because the respondent has a vested right to retain the judgment.

Generally speaking, the shorter the delay and the better the explanation for it, the lower the hurdle that the applicant has to overcome. Moreover, the required assessment of the merits can be made only on a provisional basis: see R v. Secretary of State for the Home Department; Ex parte Mehta [1975] 1 W.L.R. 1087 at 1091. The respondent asks us to say, in effect, that, even on such a preliminary assessment, the points desired to be agitated on appeal are not sufficiently arguable, notwithstanding the nature of the delay to which I have referred.

The respondent is a Russian seaman who sustained personal injuries on a Russian vessel as she steamed down Port Phillip Bay. There is little doubt that the applicant was negligent and there is no dispute about the quantum of damages. The applicant would rely on only four grounds if the extension were granted. They raise, in substance, two contentions. The first is that the County Court had no jurisdiction because the whole cause of action arose outside Victoria. The second is that, even if the court did have jurisdiction, the lex loci delicti was Russian law.

The first contention reflects s.36 of the County Court Act 1958, but the vessel was within Victorian territorial waters. I do not think it has sufficient prospects of success to warrant an extension of time within which to appeal.

The second contention is designed to give this Court an opportunity to consider the question that was before the Court of Session in Mackinnon v. Iberia Shipping Company Ltd. 1955 S.C. 20. The learned authors of Dicey and Morris on the Conflict of Laws (12th ed. 1993) have expressed the hope that that case will not be followed in England: see vol. 2 at 1540-1541. But for the consideration to which I am about to refer, I should have thought that that point was sufficiently arguable to justify an extension of time in this case.

The difficulty is that the second contention does not reflect the way in which the case was formulated or argued below. Paragraph 16 of the amended defence was to the effect that the respondent had no cause of action because the alleged breaches of duty or negligence took place aboard a foreign ship. Six particulars were provided, of which five were abandoned at trial. Two of the abandoned particulars relied on the rule in Phillips v. Eyre (1870) L.R. 6 Q.B.1. The surviving particular was to the effect that, as no material part of the cause of action arose within Victoria within the meaning of s.36 of the County Court Act, that court had no jurisdiction.

The learned judge dealt with the relevant part of the argument in terms which show that it corresponded with the first of the two contentions that I have identified earlier in these reasons for judgment. No reference was made to the question considered in Mackinnon's Case and it is clear that his Honour was not asked to consider it. In order to rely on the lex loci delicti, the point would have to be pleaded and evidence led of Russian law: see Cross on Evidence (5th Australian ed. 1996) at [41005]. There was evidence in the court below concerning a "collective contract" under which the respondent had a right to claim compensation. It is apparent that that evidence was not led for the purpose for which it would now be used and it does not go the distance that the applicant would require. It does not, for example, show that the contractual right to compensation excludes a claim in delict. The authorities relating to new points on appeal are well known. Some of them are collected in Fry v. Oddy [1998] VSCA 26 at [75].

In those circumstances, in my opinion, none of the grounds of appeal on which the applicant desires to rely would have a sufficient prospect of success. The overriding duty of the Court is to do justice to the parties, not to pursue its own intellectual interests or to develop the law. Accordingly, I would refuse the applications.

The order of the Court is that the applications made by summons filed on behalf of Far Eastern Shipping Company Limited on 2 July 1999 are refused with costs.

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Judgment (12 paragraphs)

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