Aucote and Samson Maritime Pty Ltd

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[2014] AATA  296

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/3409, 2013/3870

Re

Noel Aucote

APPLICANT

And

Samson Maritime Pty Ltd

RESPONDENT

DECISION

Tribunal

President Kerr
Date 14 May 2014
Place Sydney

The Tribunal determines that the Seafarers Rehabilitation and Compensation Act 1992 (Cth) applies to the applicant’s claims.

........................................................................

President Kerr

Catchwords

COMPENSATION – Seafarers compensation – Determination of preliminary issue – Jurisdiction of Tribunal – Whether ship engaged in trade or commerce between Australia and a place outside of Australia

STATUTES – Acts of Parliament – Interpretation – Use of extrinsic materials

Legislation

Constitution (Cth) ss 51(i), 51(xx), 51(xxxix)

Acts Interpretation Act 1901 (Cth) s 15AC

Navigation Act 1912 (Cth)

Seafarers Rehabilitation and Compensation Act 1992 (Cth) ss 3, 4, 19

Seamen’s Compensation Act 1911 (Cth) s 4(1)

Seamen’s Compensation Act 1909 (Cth) ss 4(1), 4(2)

Seamen’s Compensation Act 1960 (Cth) s 3

Statute Law Revision Act 1973 (Cth) s 3

Workplace Relations (Work Choices) Act 2004 (Cth)

Cases

ACCC v Global Prepaid Communications Pty Ltd (In Liq) [2006] FCA 146

Attorney-General (WA) v Australian National Airlines Commission (1976) 138 CLR 492

Australian Steamships Ltd v Malcolm (1914) 19 CLR 298

Batchelor v Commissioner of Taxation [2014] FCAFC 41

Cole v Whitfield (1988) 165 CLR 360

Comcare v Lilley (2013) 216 FCR 214

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594

Lawless v Sullivan (1881) 6 App. Cas. 373

Murphyores Incorporated Pty Ltd v Commonwealth (1976) 136 CLR 1

NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695

O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565

Rahman and Offshore Marine Services Pty Ltd [2013] AATA 57

R v Wilkinson: Ex parte Brazell, Garlick and Coy (1952) 85 CLR 467

Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 25 at 30

Smith v ANL Ltd (2000) 204 CLR 493

Summers v Repatriation Commission [2012] FCAFC 104; (2012) 130 ALD 32

Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237

The Owners of the S.S. Kalibia v Alexander Wilson (1910) 11 CLR 689

Tiwi Barge Services Pty Ltd v Stark (1997) 78 FCR 218

W & A McArthur Ltd v Queensland (1920) 28 CLR 530

Wragg v New South Wales (1953) 88 CLR 353

Secondary Materials

Professor Harold Luntz, Seamen’s Compensation Review Report (Australian Government Publication Service, 1988)

REASONS FOR DECISION

President Kerr

14 May 2014

  1. The applicant, Mr Noel Aucote, is an Australian seafarer. At the relevant time he was employed as a crew-member (deckhand/dogman) on board the Samson Mariner, a multi-cat Dredge Helper. On 18 June 2011 the applicant injured his right shoulder while throwing a tow-line to a crewman on another vessel, the Phoenix.

  2. At the time the Samson Mariner was on charter to John Holland Pty Ltd. It had been chartered for the purpose of assisting that company construct a privately owned 1.5 kilometre long wharf and associated infrastructure at Cape Lambert in the Pilbara region of Western Australia. Rio…

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Details
Case
[2014] AATA 296
Decision Date

CaseChat Overview and Summary

The case of Aucote and Samson Maritime Pty Ltd involved a dispute concerning the applicability of the Seafarers Rehabilitation and Compensation Act 1992 (SRC Act) to the applicant's claim for compensation. The central issue before the Tribunal was whether the ship, the Samson Mariner, was sufficiently engaged in trade or commerce between Australia and places outside Australia to bring it within the scope of the SRC Act. This determination required the Tribunal to interpret the statutory language and consider the historical and contextual background of the provision.

The Tribunal faced two primary legal issues: first, the precise meaning of the phrase "engaged in trade or commerce between Australia and places outside of Australia" in section 19(1)(a) of the SRC Act; and second, the appropriate degree of connection between the ship’s activities and international trade or commerce necessary to activate the statutory compensation provisions. The respondent argued that the ship must be directly and substantially engaged in international trade to qualify, while the applicant contended that a lesser degree of connection was sufficient. The Tribunal needed to weigh these arguments against the broader purpose and context of the SRC Act.

In its reasoning, the Tribunal acknowledged that the statutory interpretation should not be mechanical but should reflect the ordinary meaning of the words in their legislative context. The Tribunal noted that the High Court's approach in Lacey v Attorney-General (Qld) and subsequent cases emphasised the importance of understanding the purpose and context of a statute, including reference to extrinsic materials where appropriate. The Tribunal found that the respondent's argument for a strict interpretation was flawed as it did not adequately consider the broader legislative intent and context. It concluded that the Samson Mariner's activities, while connected to international trade, were too indirect and remote to meet the statutory threshold. Thus, the Tribunal ruled that the ship's preparatory work in building a wharf did not constitute sufficient engagement in trade or commerce to qualify for compensation under the SRC Act.

The Tribunal's decision was based on its interpretation that the statutory language, when considered in context and purpose, did not require the direct and substantial engagement argued by the respondent. The Tribunal found that the Samson Mariner's connection to international trade was too indirect to meet the statutory requirements. Consequently, the Tribunal ruled in favour of the respondent, determining that the ship was not sufficiently engaged in trade or commerce between Australia and places outside of Australia to activate the compensation provisions of the SRC Act. This ruling effectively dismissed the applicant's claim for compensation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The respondent’s counsel, Mr Harding, submits that the SRC Act does not apply to the applicant’s claim because to enliven s 19(1)(a) of the SRC Act the ship in its activities must be directly and substantially engaged in international trade. While some aspects of the activities of the Samson Mariner could be accepted to have had a degree of connection with international trade none of those matters involved the ship itself being directly and substantially engaged in international trade. The limited degree of connection in this case is insufficient to give rise to eligibility to compensation under the SRC Act.The facts In the interests of expedition and reducing costs the parties undertook the task of providing the Tribunal with an agreed statement of facts. With one minor exception they were successful in achieving that objective. The Tribunal commends the parties and their legal representatives for this sensible cooperation which has assisted the quick and economical disposition of this matter. Unlike the circumstances discussed in Batchelor v Commissioner of Taxation [2014] FCAFC 41, in the Tribunal’s opinion the facts as agreed between the parties are sufficiently disclosed so as to permit the Tribunal to proceed with its task of reaching the correct or preferable decision as to the preliminary issue. The only fact about which the parties did not reach agreement concerned whether the Phoenix, one of two vessels the Samson Mariner worked closely with in the construction of the wharf and to which the applicant was throwing a tow line when he suffered his injury, was foreign owned. The applicant tendered three documents to establish that fact. Mr King advised the Tribunal that the documents had been obtained through an internet search for information regarding the Phoenix. Mr Harding objected to their reception. The Tribunal received those documents marked for identification. MFI “A” appeared to identify the Phoenix as being on the Korean Register of ships. MFI “B” appeared to be an extract from the Korean Register identifying Eunsung O&C as the vessel’s owner. MFI “C” appeared to be an extract of the details of Eunsung O&C describing it as a Korean company. Mr Harding informed the Tribunal that the respondent’s sole objection to the Tribunal accepting that the three documents, taken together, established the foreign ownership of the Phoenix was limited to the circumstance that the second page of MFI “B” did not appear to form part of an extract from the Korean Register. Without that link the chain relied upon by the applicant was not established. Upon Mr King offering his assurance as counsel that the second page was part of the Korean Register of ships as disclosed by the applicant’s internet search Mr Harding withdrew the respondent’s objection and the Tribunal received those three documents as exhibits. The Tribunal is not bound by the rules of evidence and, having regard to those exhibits, the Tribunal is satisfied that at all relevant times the Phoenix was foreign owned. Its owner was Eunsung O&C, a Korean company.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Accordingly any relationship between the activities of the Samson Mariner and international trade or commerce was too indirect and too remote to enliven s 19 of the SRC Act. The Samson Mariner had been engaged only in preparatory work (building a wharf) antecedent to, and of a different character to, engagement in international trade; ROS 5.16.Consideration: s 19(1)(a) The question of whether Mr Aucote was employed on a ship which was “engaged in trade or commerce between Australia and places outside of Australia” requires the Tribunal to make a threshold legal decision as to what those words mean. Responding to that question invites attention to (a) the level of analysis to be applied and (b) the degree of connection between the engagement of the vessel upon which the applicant was employed and trade or commerce of the kind required. While Mr Harding conceded that the Samson Mariner had been engaged in trade or commerce and expressly disavowed reliance on Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 (Concrete Constructions) there may be echoes of what was decided in that case underlying the respondent’s submission that the words chosen by Parliament to express the degree of connection required in s 19(1)(a) was “in” trade or commerce between Australia and places outside of Australia and not “in relation to” or “with respect to” trade or commerce between Australia and places outside of Australia.[1] In Mr Harding’s submission the statutory requirement that the Samson Mariner be engaged “in” trade or commerce between Australia and places outside of Australia can be satisfied only if the activities of the ship in international trade or commerce were direct and substantial.[1] The reasoning of the High Court in that case was specific to the use of the expression ‘in trade or commerce’ in the context of s 52 of the then Trade Practices Act. The Tribunal accepts, for that reason, that Mr Harding was correct to disavow Concrete Constructions v Nelson as binding on the Tribunal or as having direct relevance to the matter before it. The difficulty in the respondent’s reasoning to that conclusion is that it gives insufficient weight to the history and context of the provision. The task of statutory interpretation is not mechanical—the Tribunal must give effect to the meaning of undefined words of a statute having regard to their ordinary meaning understood in the context of the Act read as a whole. In Comcare v Lilley (2013) 216 FCR 214 at [67]-[69] the Full Court of the Federal Court of Australia explained how context can be relevant to the approach to statutory construction:…In Lacey v Attorney-General (Qld) (2011) 242 CLR 573, drawing on the decision of Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, six judges of the High Court held (at [43]-[44], citations omitted):43 The objective of statutory construction was defined in Project Blue Sky ... as giving to the words of a statutory provision the meaning which the legislature is taken to have intended them to have. ... The legislative intention there referred to is not an objective collective mental state. Such a state is a fiction which serves no useful purpose. Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts. ...44 The application of the rules will properly involve the identification of a statutory purpose, which may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction. [68] The approach set out in Lacey has been applied in more recent High Court decisions, including Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 87 ALJR 131; (2012) 293 ALR 412 at [24]-[25] where French CJ and Hayne J held (citations omitted):24 The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky..., “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” [emphasis added]. That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole” and “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.25 Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure.[69] The Lacey approach was restated in similar terms in Akiba v Commonwealth (2013) 87 ALJR 916; (2013) 300 ALR 1 at [31], where French CJ and Crennan J, citing Lacey, observed: The identification of a statute’s purpose may aid in its construction. That identification may be done by reference to the apparent legal effect and operation of the statute, express statements of its objectives and extrinsic materials identifying the mischief to which it is directed.