Hasan and Inco Ships Pty Ltd (Compensation)

[2018] AATA 15

Hasan and Inco Ships Pty Ltd (Compensation) [2018] AATA 15 (12 January 2018)

Division:GENERAL DIVISION

File Number(s):      2017/4300

Re:Adeeb (Eddy) Hasan

APPLICANT

AndInco Ships Pty Ltd

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:12 January 2018

Place:Sydney

The Tribunal has jurisdiction to review the decision of the Respondent to refuse to extend the period in which Mr Hasan may request a reconsideration of the determination made by it on 12 December 2007.

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J W Constance
Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – Seafarers Rehabilitation and Compensation Act 1992 – decision to refuse to extend the period in which the Applicant may request a reconsideration of the decision to deny liability – whether the Tribunal has jurisdiction to review the decision to refuse to extend the period – similar provision in the Safety, Rehabilitation and Compensation Act 1988 – jurisdiction found

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 62(3)

Seafarers Rehabilitation and Compensation Act 1992 (Cth) ss 76, 78(3), 88(1)

CASES

Barron and Inco Ships Pty Ltd [2006] AATA 436

Beecher and Telstra Corporation Limited [1994] AATA 6
Comcare v Willems (1996) 70 FCR 244

Lennon v Gibson and Howes Ltd [1919] AC 709; 26 CLR 285

REASONS FOR INTERLOCUTORY DECISION

Deputy President J W Constance

12 January 2018

INTRODUCTION

1. Mr Hasan claims that he was injured whilst he was employed by the Respondent on board a merchant ship as it was docking in the Port of Melbourne on 7 October 2007.  He reported the incident, which he claims gave rise to the injury, to the First Mate a short time later.

2. On 18 October 2007 Mr Hasan lodged with the Respondent a Claim for Workers’ Compensation in respect of the alleged injury. 

3. On 12 December 2007 the Respondent determined that liability was denied in respect of Mr Hasan’s claim.  A notice of this determination, which included a statement of reasons for it, was sent to Mr Hasan by email and courier on 14 December 2007.  There is a dispute between the parties as to whether Mr Hasan received these communications.

4. Mr Hasan acknowledges that he did receive a copy of the notice of determination in about 2012, when it was given to him by the Solicitor acting for him at the time.  At various times since 2012, Mr Hasan has instructed several Solicitors to act for him in respect of his compensation claim. For reasons which are not relevant to this decision, very little progress was made in respect of the claim until 2017.

5. On 6 April 2016 Mr Hasan’s Solicitors wrote to the Respondent as follows: 

   We act for Eddy Hasan.

   We refer to previous correspondence, a copy of which is enclose should it had gone astray [sic].

   We refer to our letter dated 6 April 2016 and we would be pleased to have a reply. (Original emphasis.)

   The Respondent denies having received this letter.

6. Further correspondence between Mr Hasan’s Solicitors and the Respondent’s Solicitors followed.  As part of this correspondence the Respondent’s Solicitors asserted that their client was not obliged to reconsider the determination of 12 December 2007.

7. On 19 May 2017 Mr Hasan’s Solicitors wrote to the Respondent’s Solicitors.  The letter read in part: 

   Further to your letter dated 20 September 2016 and the Determination of our client’s claim on 12 December 2007 pursuant to Section 78 of the Seafarers Act, we request a reconsideration of that decision.

   To the extent necessary, we also request time to be extended to make this application for reconsideration.

8. On 13 June 2017 the Respondent’s Solicitors sent a letter to Mr Hasan’s Solicitors.  It read in part:

   We refer to your above named client and note the previous correspondence exchanged between ourselves, the most recent of which being your letter dated 19 May 2017.

   By way of summary, by letter dated 14 September 2016 you requested that the time for consideration of the previous determination be extended. We responded to you by letter dated 20 September 2016 in which we confirmed that our client has no obligation to reconsider the determination made in December 2007.

   ……

   We note that in your letter of 14 September 2016 you requested that the time for reconsideration of the previous determination be extended. We confirmed that your client had his opportunity to challenge the determination at the time, now almost 10 years ago, and did not. On that basis we confirmed that our client has no obligation to reconsider the determination.

   We are instructed that our client’s position remains the same. Any further correspondence will not be responded to by our client or by us on its behalf.

9. On 20 July 2017 Mr Hasan made two applications to the Tribunal:

   (a)an Application for Review of Decision in which the decision sought to be reviewed was specified as the Respondent’s decision of 13 June 2017;

   (b)an Application for Extension of Time for Making an Application for Review of Decision in which the decision sought to be reviewed was specified as the decision of the Respondent made 13 December 2007.

   DISCUSSION

10. Subsection 88(1) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) provides that:

    Application may be made to the [Tribunal] by a claimant for review of a reviewable decision.

11. Reviewable decision is defined in section 76 to mean a decision made under section 78.

12. Section 78(3) deals with the time in which an application for reconsideration of a determination is to be made. It reads as follows:

    A request for reconsideration of a determination must:

    (a)set out the reasons for the request; and

    (b)be given to the employer within 30 days after the day on which the determination first came to the notice of the claimant, or within such further period (if any) as the employer, either before or after the end of that 30 day period, allows.

13. At the commencement of the interlocutory hearing Counsel for Mr Hasan agreed that there had been no review by the Respondent of the determination of 12 December 2007 and consequently, at that time, the Tribunal did not have jurisdiction to review that determination.

14. Further Mr Hasan’s Counsel agreed that if a valid request for an internal review of the 2007 decision was to be made, Mr Hasan needed an extension of the time in which to make the request.  I refer to subsection 78(3) set out above.  As the Respondent has refused to allow any time beyond the 30 days referred to in the subsection, the question then arose whether the Tribunal has jurisdiction to review the decision to refuse to allow additional time in which to request a reconsideration by the Respondent.

15. It was argued on behalf of Mr Hasan that the Tribunal does have such jurisdiction as the decision to refuse to allow additional time to seek a reconsideration under section 78 was itself made under s 78, in particular under subsection 78(3)(b).

16. The statutory scheme for review of decisions under the Seafarers Rehabilitation and Compensation Act is very similar to that contained in the Safety, Rehabilitation and Compensation Act 1988 (Cth).

17. Subsection 62(3) of the Safety, Rehabilitation and Compensation Act, which deals with the time in which an application for reconsideration of a determination is to be made, provides:

    A request for reconsideration of a determination shall:

    (c)set out the reasons for the request; and

    (d)be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.

18. There is no relevant difference between section 62(3) of the Safety, Rehabilitation and Compensation Act and section 78(3) of the Seafarers Rehabilitation and Compensation Act.

19. In Comcare v Willems,[1] the Full Court of the Federal Court considered an application to review a refusal by Comcare to extend the time in which an employee could apply to have a determination reconsidered.  The Court said:

    … it is clear the determining authority’s decision in relation to extension of time is a “reviewable decision”; that is a decision susceptible to review by the Administrative Appeals Tribunal.  Section 60 of the SRC Act defines the term “reviewable decision” to include a decision made under s 62 of that Act.

    [1] (1996) 70 FCR 244 at 251.

20. There is no reason why a provision in the Seafarers Rehabilitation and Compensation Act should be interpreted differently to that in the Safety, Rehabilitation and Compensation Act. Unless there is good reason to find otherwise, if Parliament adopts the wording of earlier legislation it is presumed to intend that the words used have the same meaning as the earlier Act.[2]

    [2] Lennon v Gibson and Howes Ltd [1919] AC 709 at 711-12; 26 CLR 285 at 287.

    CONCLUSION

21. Applying the decision of the Full Federal Court to the provisions of section 78 of the Seafarers Rehabilitation and Compensation Act I conclude that the Tribunal has jurisdiction to review the decision of the Respondent to refuse to extend the period in which Mr Hasan may request a reconsideration of the determination made by it on 12 December 2007.

22. I note that the conclusion I have reached is consistent with earlier decisions of the Tribunal.[3]

    [3] Barron and Inco Ships Pty Ltd [2006] AATA 436; Beecher and Telstra Corporation Limited [1994] AATA 6.

I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate

Dated: 12 January 2018

Date(s) of hearing:	3 November 2017
Counsel for the Applicant:	M Daley
Solicitors for the Applicant:	P Ives, Maxwell Berghouse & Ives Solicitors
Solicitors for the Respondent:	S Zeitz, Zeitz Workplace Lawyers