R v Yeo

[2002] NSWSC 315

CITATION:	Visscher v BHP Petroleum Pty Limited re the ship "Griffin Venture" [2002] NSWSC 315
CURRENT JURISDICTION:	Equity Division Admiralty List
FILE NUMBER(S):	SC 10/00
HEARING DATE(S):	7 March 2002
JUDGMENT DATE:	7 March 2002
PARTIES :	Timothy Troy Visscher (Plt) BHP Petroleum Pty Limited (1st def) BHP Petroleum (Australia) Pty Limited (2nd def) The Broken Hill Proprietary Company Limited (3rd def)
JUDGMENT OF:	McClellan J

COUNSEL :	F Corsaro SC/D Carolan (Plt) D Hammerschlag SC/G Nell (1st & 2nd Def)
SOLICITORS:	Turnbull Hill Lawyers (Plt) Holding Redlich (1st & 2nd Def)
CATCHWORDS:	ADMIRALTY - claim for salvage - whether services were rendered as an employee or as a volunteer - application to amend statement of claim to add a further claim in restitution
LEGISLATION CITED:	Limitation Act 1969 (NSW) s 14
DECISION:	See paras 13 - 14

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADMIRALTY LIST

McCLELLAN J

THURSDAY 7 MARCH 2002

10/00 - VISSCHER v BHP PETROLEUM PTY LIMITED RE THE SHIP “GRIFFIN VENTURE”

JUDGMENT

1 HIS HONOUR: I delivered judgment in relation to separate questions in this matter on 21 February 2002. There were two questions:

1. (a) Whether the plaintiff’s claim in these proceedings (being a
claim for an award of salvage) is not maintainable and both that claim and these proceedings ought be dismissed by reason of the proceedings having been commenced on a date following the expiration of the limitation period provided for in s 396(1) of the Navigation Act 1912 (Cth) alternatively s 22(3) of the Limitation Act 1969 (NSW) alternatively s 37 of the Admiralty Act 1988 (Cth).
(b) If the plaintiff’s claim is not maintainable by reason of the limitation provisions referred to in (a) above, whether the time for commencement of the plaintiff’s claim ought to be extended to provide that the plaintiff’s claim was brought within time.

2. (a) By whom the plaintiff was employed on 29 May 1994; and
(b) Whether as at 29 May 1994 the plaintiff was:
(i) a volunteer and not an employee in respect of the services alleged to have been rendered by him to the Griffin Venture and which are the subject of his claim for salvage in these proceedings; or
(ii) an employee and by reason of his contract of
employment and the obligations that he owed thereunder, the plaintiff is precluded from claiming an award by way of salvage in respect of the services alleged to have been rendered by him to the Griffin Venture and which are the subject of his claim for salvage in these proceedings, with the result that both the plaintiff’s claim for salvage and these proceedings ought therefore be dismissed.

2 At the time those questions were argued, the plaintiff indicated that he wished to seek leave to amend the Second Amended Statement of Claim to add a further claim in restitution. The amendment sought is as follows:

“56A. Alternatively, the Defendants received a benefit, in circumstances where it would be unjust or unconscionable for the defendants to receive and to retain that benefit without paying compensation and paying a reward to the Plaintiff.”

3 It is submitted that this claim may be propounded in circumstances where a claim for maritime salvage is not available. The plaintiff’s submission is that, in the event that the plaintiff was acting as a volunteer and not as an employee, his action in defying the master and, as he alleges, saving the ship entitles him to compensation by reason of the benefit which the plaintiff’s actions afforded the defendant.

4 It was submitted that the critical element of the claim is the assertion that, at the relevant time, the plaintiff was acting as a volunteer and not as an employee. Because I have already found that the plaintiff was relevantly an employee, it is accepted by the plaintiff that the claim which is sought to be pleaded could not succeed.

5 The defendant submits that the amendment should not be allowed as it is futile and bound to fail. Four submissions are made.

6 Firstly, it is submitted that there is no room for a restitutionary or unjust enrichment claim when there is a contractual regime which controls the relationship between the parties.

7 Secondly, the defendant submits that the plaintiff was contractually obliged to render the services which he relies upon in support of his proposed claim. He was paid for those services and, as a consequence, received a benefit. Accordingly, there is no room for the doctrine of unjust enrichment, nor is there anything unconscionable in the defendant’s actions.

8 Thirdly, it is submitted that the defendant did not receive any benefit from the plaintiff. All that the plaintiff’s actions did, if anything, was to prevent a detriment being suffered by the loss of the ship.

9 Finally, it is submitted, to the extent that the law of restitution provides a remedy for unjust enrichment, the measure of restitution is generally the value of the enrichment. In the present case, as the defendant’s assets were not increased as a result of all of the events, there was, accordingly, no enrichment which would entitle the plaintiff to sustain a claim.

10 In any event, it is submitted by the defendant that the claim which the plaintiff seeks to bring in his amendment is statute barred by reason of the operation of s 14 of the Limitation Act (NSW), in respect of which it is submitted there is no relevant provision for an extension of time.

11 Having regard to my findings in relation to question 2, I am satisfied that the plaintiff, at the relevant time, was an employee. In my opinion, for this reason alone, a claim in restitution could not succeed. The plaintiff could hardly claim that the defendant was unjustly enriched when he himself was carrying out his obligations as an employee, for which he was rewarded by the defendant.

12 Because, in my opinion, the claim has no prospect of success, the amendment should be denied. It is unnecessary for me to examine the operation of the Limitation Act in the context of this proposed amendment.

13 For these reasons, the answers to the questions asked are as follows:

Question 1 (a) Yes.
(b) No.
Question 2 has already been answered.

14 The orders of the court are as follows:

1. I refuse the plaintiff’s application to amend the statement of claim.
2. I dismiss the claim.
3. I order the plaintiff to pay the defendant’s costs.
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Last Modified: 09/06/2002