Cases: The Australian Year in Review

• Author: G A Thompson SC
• Position: Barrister at Law, Gerard Brennan Chambers, Brisbane. This is an edited version of my address to the 39th Maritime Law Association of Australia and New Zealand Annual Conference held in Brisbane in September 2012
• Pages: 28-35

(2013) 27 A&NZ Mar LJ

28

CASES: THE AUSTRALIAN YEAR IN REVIEW

G A Thompson SC*

Introduction

This paper discusses four judgments selected from a survey of Australian cases which have come before the

Court over the preceding 12 months. There were obviously a number of shipping case s decided over that period,

and the selection therefore involved a subjective element. Essentially, the decisions I will be d iscussing were

selected because, in my view, they each involve the consideration of novel points of law which are both

interesting and potentially important to practitioners in the field.

The judgments to be discussed are:

 Birdon Pty Ltd v Houben Marine P ty Ltd

 Geraldton Port Authority v The Ship ‘Kim Heng 1888’ (No 2)

 Progr ammed Total Marine Services Pty Ltd v The Ship ‘Hako Fortr ess’

 Transfield ER Futures Limited v The Ship ‘Giovanna Iuliano ’ (No 2)

As it happens, each case is a decision of the Federal Court.

1 Birdon Pty Ltd v Houben Marine Pty Ltd [2011] FCAFC 126

Facts

Birdon Pty Ltd commenced proceedings in the Federal Court of Australia seeking to establish it had no

obligations to pay for the hire of a back hoe dredge chartered from Houben.

Houben contended that the charter agreement was a construction contract within the meaning of the Building

and Construction Industry Security of Payment Act 1999 (NSW) (known as the Security of Payment Act).

Houben had served a claim on the plainti ff under s 13 of the Security of Payment Act for payment of the amount

of $2,132,907.86 under the terms of the charter agreement and had made an ad judication application with

respect to its Payment Claim under s 17 of the Security of Payment Act.

Birdon sought to restrain the Houben from pursuing t he application for adjudication. Birdon also alleged that

Houben had engaged in misleading an deceptive conduct in contravention of the Australian Consumer Law.

Before turning to the issues in the case, some of the relevant statutory provisions need to be briefly referred to:

 Section 25 of the Security of Payment Act provides that an adjudication certificate may be filed ‘as a

judgment’ for a debt in any court of co mpetent jurisdiction and is ‘enforceable’ as if it were a judgment for

a debt.

 Section 32 of the Security of Payment Act recognises the essentially provisional nature of the adjudication

process. The Security of Pa yment Act is not concerned to give effect to the rights of the parties under the

construction agreement. As is apparent from the terms of s 32(2), it expressly leaves the determination of

those rights to the courts. The process for which t he Security of P ayment Act provides does not involve a

determination, even of a provisional kind, of the actual rights of the parties under their construction

contract. It does not affect any civil proceedings arising under a construction co ntract.

 As will be well known to this audience, s 4(3)(f) of the Admiralty Act provides:

* Barrister at Law, Gerard Brennan Chambers, Brisbane. This is an edited version of my address to the 39th Maritime Law Association of

Australia and New Zealand Annual Conference held in Brisbane in September 2012.