Case: Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7 ; (1938) 59 CLR 369
Outcome: discussed
This kind of distinction between a limitation relevant to the jurisdiction of a court which goes to the existence of jurisdiction (that is as a condition which must exist before authority to adjudicate arises) and which goes to the exercise of jurisdiction was discussed by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7 ; (1938) 59 CLR 369 at 391 as follows: It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed. See also The Queen v Gray: Ex parte Marsh [1985] HCA 67 ; (1985) 157 CLR 351 at 374-75 per Mason J (as he then was), and in an Admiralty context, see The 'Tian Sheng No 8' [2000] 2 Lloyd's Rep 430 at 443 per Sir Anthony Mason sitting in the Hong Kong Court of Final Appeal. 119 Conformably with the approach described in Parisienne Basket , The Queen v Gray ; Ex parte Marsh and the The 'Tien Sheng No 8' these are questions which should be seen as to be resolved within jurisdiction, if the assertions made are that there is liability under the PS (CL) Act and the Pollution Convention. 120 Section 4(3)(b) of the Act should be read with ss 7 and 8 of the PS (CL) Act and the Pollution Convention. By doing so, I conclude that the claim described in s 4(3)(b) is to be characterised by the assertions made and not by reference to the evidence which would see the claim under the Pollution Convention succeed or fail. 121 Thus, the Court has jurisdiction to hear and adjudicate this claim. It is another question, however, whether it should now be dismissed. Mr Street said that he wanted to cross-examine Mr White on this issue. I will hear the parties as to the proper conduct of the motion insofar as it seeks to dismiss this claim summarily. 131 The second question raises an important issue about the approach to s 15, and it is appropriate to say something about this. As a matter of construction of s 15 a number of considerations are relevant. First, the approach enunciated by Dixon J in Parisienne Basket and discussed in The Queen v Gray; Ex parte Marsh and The 'Tieng Sheng (No 8)' to which I have already referred must be borne in mind. Secondly, the word "includes" in s 15(2) reflects the fact that the Act leaves open the possibility of other maritime liens being recognised beyond those listed. This might occur by reference to the development of Australian maritime law in this respect, or by the recognition of foreign maritime liens by reference to principles of private international law different to those expressed by the majority of the Privy Council in The 'Halcyon Isle' ; and see Price, G The Law of Maritime Liens (Sweet &amp; Maxwell 1940) at Ch 20. The defendant submitted (as is the case) that s 6 of the Act provides that the Act does not have the effect of creating a new maritime lien, and that this assists the conclusion that the court should not extend the categories of maritime liens. That, however, was an approach to the formulation of the whole Act on the basis of the perceived limitation of the legislative power of the Commonwealth found in Owners of SS Kalibia v Wilson [1910] HCA 77 ; (1910) 11 CLR 689 to the effect that the Commonwealth Parliament does not have implied power to legislate for Admiralty and maritime substantive law. It is unnecessary and inappropriate to discuss whether The 'Kalibia' reflects the current Constitutional position given the emergence of Australia as a fully independent nation state: cf The 'Shin Kobe Maru' (FC) at 86-7; The 'Genessee Chief' 53 US 263 (1851); The 'Lottawanna' ; Butler v Boston and Savannah Steamship Co 130 US 527 (1889); In re Garnett 141 US 1 (1891); Southern Pacific Co v Jensen 244 US 205 (1917); Panama Railroad Co v Johnson 264 US 375 (1924); and Harrison Moore The Constitution of Australia at 562. It is sufficient to say that s 76(iii) provides for Parliament to confer or invest Admiralty and maritime jurisdiction. The absence (according to The 'Kalibia' ) of a coterminous legislative power to deal with substantive law matching the reach of judicial authority over Admiralty and maritime controversies does not limit the full import and implication of the grant of judicial power. The conferral of jurisdiction is not a matter of mere procedure. It is the conferral of a species of governmental power to quell controversies. Subject to limited circumstances that may exist by way of exception, courts have a duty to exercise the power if jurisdiction is invoked. Thus, judges have a responsibility to ascertain and declare the general maritime law of Australia, as part of the common law of Australia. If that includes ascertaining and declaring the law of maritime liens, that is part of the task.