Visscher v Teekay Shipping

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.