Bistricic (the appellant), a seafarer, sued the owners of the vessel John Dory (the respondents) in the Supreme Court of New South Wales (NSW). The appellant claimed damages for personal injuries sustained as a member of the crew when the vessel was moored in Sydney Harbour, NSW, Australia. The vessel was registered in NSW. The contract of service between the appellant and the respondents was governed by the law of NSW. The injury was suffered in the internal waters of NSW: while working onboard the vessel, the appellant fell and his hands became caught between a moving belt and pulley forming part of a motor on the vessel. The appellant claimed that this allegedly occurred without the actual fault or privity of the respondents.

The respondents sought to limit their liability under s 503 of the Merchant Shipping Act 1894 (UK) (the 1894 Act). Before 1958, s 503(1) of the 1894 Act provided, so far as material:

The owners of a ship, British or foreign, shall not, where all or any of the following occurrences take place without their actual fault or privity, (that is to say,)

(a) Where any loss of life or personal injury is caused to any person being carried in the ship; … be liable to damages beyond the following amounts; (that is to say,)

(i) In respect of loss of life or personal injury, either alone or together with loss of or damage to vessels, goods, merchandise, or other things, an aggregate amount not exceeding fifteen pounds for each ton of their ship's tonnage …

The parties did not dispute that the 1894 Act is in force in NSW (see ss 735 and 736 of the 1894 Act; Union Steamship Co of New Zealand Ltd v Commonwealth (1925) 36 CLR 130 (HCA); Asiatic Steam Navigation Co Ltd v Commonwealth (1956) 96 CLR 397, 403, 414, 422-423 (HCA)).

In 1958, the Merchant Shipping (Liability of Shipowners and Others) Act 1958 (UK) (the 1958 Act), an Act of the Imperial Parliament (ie the UK Parliament), came into force. Section 2(4) of the 1958 Act provided that:

Nothing in the said section five hundred and three shall apply to any liability in respect of loss of life or personal injury caused to … a person who is on board or employed in connection with the ship under a contract of service with all or any of the persons whose liabilities are limited by that section, if that contract is governed by the law of any country outside the United Kingdom and that law either does not set any limit to that liability or sets a limit exceeding that set to it by that section.

Section 10 of the 1958 Act provides that the Act extends to Northern Ireland. Section 11 of the 1958 Act provides:

(1) Her Majesty may by Order in Council direct that the provisions of this Act, and (so far as they do not so extend apart from the Order) the existing limitation enactments, shall extend, with such exceptions, adaptations and modifications as may be specified in the Order, to -

(a) the Isle of Man;

(b) any of the Channel Islands;

(c) any colony, or any country or place outside Her Majesty's dominions in which for the time being Her Majesty has jurisdiction, or any territory consisting partly of one or more colonies and partly of one or more such countries or places.

(2) In this section 'the existing limitation enactments' means Part VIII of the Merchant Shipping Act, 1894, section two of the Merchant Shipping (Liability of Shipowners and Others) Act, 1900, and any incidental or supplementary provisions of any enactment applying the said Part or section.

It was undisputed that the appellant's contract of service was governed by the law of NSW and therefore by the 'law of [a] country outside the United Kingdom' (s 2(4) of the 1958 Act).

The appellant argued that s 2(4) of the 1958 Act applied to the facts of this case and was an answer to the respondents' claim to limit liability. The respondents disagreed.

The issue was whether s 2(4) of the 1958 Act was a law in force in NSW. At first instance, the NSW Supreme Court decided this as a preliminary question of law, ruling that s 2(4) was not such a law. On appeal, the judges sitting in the NSW Court of Appeal unanimously decided likewise.

Section 4 of the Statute of Westminster (UK) (the Statute of Westminster), adopted by the Australian Statute of Westminster Adoption Act 1942, provides that no statute of the Imperial Parliament passed thereafter 'shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion', unless it contains a declaration required by that section. However, this provision must be read with s 9(2) of the Statute of Westminster which provides:

Nothing in this Act shall be deemed to require the concurrence of the Parliament or Government of the Commonwealth of Australia in any law made by the Parliament of the United Kingdom with respect to any matter within the authority of the States of Australia, not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia, in any case where it would have been in accordance with the constitutional practice existing before the commencement of this Act that the Parliament of the United Kingdom should make that law without such concurrence.

Section 11 of the Statute of Westminster provides:

Notwithstanding anything in the Interpretation Act, 1889, the expression 'Colony' shall not, in any Act of the Parliament of the United Kingdom passed after the commencement of this Act, include a Dominion or any Province or State forming part of a Dominion.

The case was argued on the footing that s 4 of the Statute of Westminster has no application to the Australian States and that a statute of the UK Parliament, not containing the declaration required by s 4, may nevertheless apply in the Australian States. There was also argument on whether a crew member is a 'person being carried in the ship' (s 503(1) of the 1894 Act).

Held: Appeal dismissed.

Mason J held that section 2(4) of the 1958 Act was not intended to apply to NSW (ss 10 and 11 of the 1958 Act). First, s 11 of the 1958 Act does not give the 1958 Act an application in NSW. The reference in s 11 of the 1958 Act to 'any colony' has no application to the Australian States, due to s 11 of the Statute of Westminster, and because NSW is not a place outside Her Majesty's Dominions. Second, the legislative policy under s 11 of the Statute of Westminster is that a statute of the UK Parliament, if it is intended to apply to an Australian State, will be expressed to apply to that State. The 1958 Act makes no mention of the Australian States.

The appellant's argument that the 1958 Act has an unexpressed application to the Australian States rests on the proposition that because the 1894 Act enunciated the law for NSW, any amendment to that Act should be approached on the footing that it was intended to amend the law wherever the 1894 Act applied in 1958. This argument is unpersuasive due to the long history of constitutional development which has taken place since 1894 and the provisions of the 1958 Act.

The appellant also referred to s 12 of the 1958 Act which provides that the 1958 Act is to be 'construed as one with the Merchant Shipping Acts, 1894 to 1954' and to s 509 which, like s 503, is contained in Pt VIII of the 1894 Act. Section 509 of the 1894 Act provides that Pt VIII of the 1894 Act is to extend to the whole of Her Majesty's Dominions. However, a provision that two statutes are to be read together does no more than enable one to interpret one statute by reference to the other, in particular to resort to a definition clause contained in the other statute. It is not a provision which enables a court to give a statute a geographical operation which is inconsistent with the intention manifested by its own provisions.

The appellant argued that the 1958 Act should be seen as an attempt to maintain uniformity in merchant shipping legislation throughout the British Commonwealth, or throughout those parts of it that are subject to the legislative power of the UK Parliament. This was rejected as a speculative consideration which must yield to the interpretation of the Act in accordance with accepted canons of construction.

A member of the crew is a person carried in the ship (Innes v Ross [1957] SLT 121 (Innes); Workmen's Compensation Board v Canadian Pacific Railway Co [1920] AC 184 (PC, British Columbia); s 503(1)(a) of the 1894 Act). There is nothing to indicate that in 1894 the words 'any person' were used otherwise than in their natural and ordinary sense or to justify an implication that 'any person' meant 'any person other than a member of the crew' or that 'carried' meant 'carried for reward'. Besides, 'passenger' is defined by s 267 of the 1894 Act so as to include 'any person carried in a ship other than the master and crew, and the owner, his family and servants'. This section supports the view that a member of the crew falls within the expression 'any person carried in a ship'.

Jacobs J stated that jurisdiction in Admiralty is given and defined by s 2 of the Colonial Courts of Admiralty Act 1890 (Imp) which has applied in NSW since an Order in Council in 1911. The jurisdiction is that Admiralty jurisdiction of the High Court of Justice in England as it existed when the 1890 Act was passed. The presently relevant jurisdiction was that given by s 7 of the Admiralty Court Act 1861 (Imp), namely, for damage done by any ship. These words are wide enough to include damage by personal injury but the damage must be done by the ship. The word 'done' limits the 'operation of the section and makes it necessary to distinguish between damage simply sustained on or in connection with a ship and damage inflicted by the ship as a thing, so to speak, capable of causing harm': Nagrint v The Regis (1939) 61 CLR 688, 693 (HCA).

The 1894 Act is, in effect, a code governing merchant shipping and which specifically makes Pt VIII of the 1894 Act applicable to the whole of Her Majesty's dominions (ss 503(2)(c) and 504 of the 1894 Act). Part VIII of the 1894 Act deals with British and foreign ships everywhere in Her Majesty's dominions and prior to the 1958 amendment there was no reference in any substantive provision in Pt VIII of the 1894 Act to the UK.

However, s 2(4) of the 1958 Act destroys the uniformity of application of Pt VIII of the 1894 Act throughout the dominions by discriminating against persons on board a ship under a contract of service governed by UK law. Section 2(4) of the 1958 Act was enacted to comply with the UK's obligations under the LLMC 1957. The UK is a signatory of the LLMC 1957. Australia has not acceded to the LLMC 1957.

Articles 1.1-1.3 of the LLMC 1957 provides for limitation of liability and art 1.4 provides:

(4) Nothing in this Article shall apply: -

(a) To claims for salvage or to claims for contribution in general average;

(b) To claims by the Master, by members of the crew, by any servants of the owner on board the ship or by servants of the owner whose duties are connected with the ship, including the claims of their heirs, personal representatives or dependants, if under the law governing the contract of service between the owner and such servants the owner is not entitled to limit his liability in respect of such claims or if he is by such law only permitted to limit his liability to an amount greater than that provided for in Article 3 of this Convention.

Article 7.1 of the LLMC 1957 states:

This Convention shall apply whenever the owner of a ship, or any other person having by virtue of the provisions of Article 6 hereof the same rights as an owner of a ship, limits or seeks to limit his liability before the Court of a Contracting State or seeks to procure the release of a ship or other property arrested or the bail or other security given within the jurisdiction of any such State.

The purpose of s 2(4) of the 1958 Act thus becomes quite clear. It was intended to apply only to the UK; section 2(4) of the 1958 Act was not intended to apply in NSW (ss 10 and 11 of the 1958 Act). If it had been intended to apply to all the countries to which Pt VIII of 1894 Act applied it would not have referred to 'any country outside the United Kingdom' but to 'any country outside the places to which Part VIII of the Act applies'.

The intention was to exclude a person in the position of the appellant from the benefit of its provisions, at least so long as NSW was bound by Pt VIII of the 1894 Act. NSW could cease so to be bound not only as a result of an Imperial Act, but also if Australia acceded to the LLMC 1957, enacted its own limitation provisions and, contrary to the course taken in the UK, disentitled the owner from limiting its liability in respect of claims by the master, crew, and servants of the owner on board the ship in respect of death or personal injury suffered while being carried in the ship.

Murphy J stated that because Australia is an independent and equal member of the community of nations, its relationship with the UK has long ceased to be imperial-colonial and is now international. As such, laws enacted at Westminster (ie enacted by the UK Parliament) will not apply of their own force in Australia even if expressed to do so. Australia's independence from UK legislative authority should be taken as dating from 1901, and that Union Steamship Co of New Zealand Ltd v Commonwealth (1925) 36 CLR 130 (HCA) was wrongly decided. In any case, Australia was independent before 1958. The 1958 Act is therefore not part of Australian law. As for the 1894 Act, its provisions show that it was made for colonial times. It is quite inconsistent with present constitutional relationships in the Commonwealth of Nations.

Barwick CJ agreed with Mason J's judgment.

Stephen J agreed with the judgments of Mason and Jacob JJ.