Hingston and Pacific Tug (Australia) Pty Ltd
[2011] AATA 761
•28 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION
[2011] AATA 761
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4944
GENERAL ADMINISTRATIVE DIVISION ) Re Murray Hingston Applicant
And
Pacific Tug (Australia) Pty Ltd
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President Date28 October 2011
PlaceSydney
Decision The Tribunal has no jurisdiction to entertain Mr Hingston’s application.
.....................[sgd]....................
Mr R P Handley
Deputy President
CATCHWORDS
COMPENSATION – seamen's compensation – accepted liability under Workers Compensation and Injury Management Act 1981 (WA) – application under Seafarers Rehabilitation and Compensation Act 1988 (Cth) - deemed refusal – request for determination not sought within time – new claim not made – Tribunal has no jurisdiction to entertain application
RELEVANT ACTS
Workers Compensation and Injury Management Act 1981 (WA)
Seafarers Rehabilitation and Compensation Act 1988 (Cth) ss 3, 4, 19, 63, 73, 76, 78, 79, 88, 139A
Navigation Act 1912 (Cth) ss 2, 8AA
CITATIONS
Articulate Restorations & Developments Pty Ltd v Crawford (1994) 10 NSWCCR 751; (1994) 57 IR 371
Commonwealth v Ford (1986) 9 ALD 433; (1986) 65 ALR 323
Tiwi Barge Services Pty Ltd v Stark (1997) 78 FCR 218; (1997) 25 AAR 361
The Dagmar (1929) 33 Lloyds List Law Reports 108
Schultz v Pettitt (1980) 25 SASR 427
Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (2004) 140 FCR 445; (2004) 212 ALR 158; (2005) ATPR (Digest) 46-261; [2004] FCA 1211
Ian Rutherford Plimer v Allen Roberts & Anor [1997] FCA 1361
OTHER AUTHORITIES
Oxford English Dictionary (2nd edition, 1989); online version September 2011. < accessed 26 October 2011
Macquarie Dictionary (4th edition, 2005)
REASONS FOR DECISION
28 October 2011 Mr R P Handley, Deputy President 1. Murray Hingston (the Applicant) has applied for the review of a deemed decision made by Pacific Tug (Australia) Pty Ltd (the Respondent) refusing his claim for workers compensation. This preliminary decision concerns the Respondent’s contention that the Tribunal has no jurisdiction. For the reasons given below, the Tribunal has determined that it does not have jurisdiction in this matter.
Background
2. Mr Hingston, who is now aged 41, was injured in an accident on 10 March 2009 while on the deck of the tug Cape Don when it was in port at Dampier in Western Australia. At the time, the Cape Don was chartered by Pacific Tug, who had entered into a contract with Van Oord, a dredging company, for a 10 week charter of the Cape Don for the following stated purposes: of towing the dredge Hippopotes from Dampier to Tangguh in West Papua, of remaining on site as accommodation for both Cape Don and PT Kotor Crew, of assisting in operations on site, and finally of towing the dredge Hippopotes back to Dampier.
3. Mr Hingston was employed by Pacific Tug as a marine engineer on the Cape Don. He commenced working on the Cape Don on 16 February 2009 while it was in port in Freemantle undergoing repairs. After a few days, Mr Hingston returned home because there was nothing for him to do until the repairs had been completed. He rejoined the tug in Freemantle on 2 March 2009. At this time, it was taking on fuel, stores and equipment in readiness for the voyage ahead. The Cape Don departed from Freemantle for Dampier on 4 March 2009, arriving late that day.
4. From 6 March 2009, repairs were made to Hippopotes in preparation for the voyage to Tangguh. On 7 March 2009, the Cape Don left its mooring and went alongside the Hippopotes at its mooring to prepare its towing bridle for the Hippopotes. On 9 March 2009, Customs officers boarded the Cape Don for the purpose of issuing customs clearances and Mr Hingston’s passport bears a customs clearance stamp bearing this date.
5. On 10 March 2009, Mr Hingston claims that Bernard Barrie, the Chief Engineer on the Cape Don, told him at breakfast that he was to take the night watch shift for the engine room that evening. From about 1.00pm that day, the crew of the Cape Don began connecting its tow to the Hippopotes. The Cape Don’s engines were started at about 2.00pm. Mr Hingston claims that at about 3.30pm, the crew lost control of the tow cable which struck Mr Hingston, who was on deck, crushing him between the cable and a guidance bar as a result of which he suffered injuries to his spine and liver and was taken ashore to hospital.
6. Mr Hingston made a claim for compensation under the Workers Compensation and Injury Management Act 1981 (WA) (the WA Act) and the workers compensation insurer, QBE Insurance (Australia) Ltd (QBE), accepted liability on 21 April 2009 and commenced payments to Mr Hingston. Mr Hingston claims he was unaware of his potential right to claim compensation under the Seafarers Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) until informed of this by his solicitors in February 2010.
7. Under cover of a letter dated 17 February 2010, Mr Hingston’s solicitors lodged a claim for workers compensation with Pacific Tug under the SRC Act. They also sent a copy of the claim to QBE. Pacific Tug acknowledges having received the claim and says that it forwarded the claim to QBE on 25 February 2010. It appears that neither Pacific Tug nor QBE responded to Mr Hingston’s solicitors. On 23 July 2010, Mr Hingston’s solicitors wrote to QBE enclosing a copy of their letter of 17 February 2010 and Mr Hingston’s claim and requesting that QBE make a determination on the claim within 12 days as prescribed by the SRC Act. On 11 August 2010, QBE replied that it was not Pacific Tug’s insurer for the purpose of such claims.
8. On 17 August 2010, Mr Hingston’s solicitors wrote to Pacific Tug purporting to enclose their letter dated 17 February 2010 and a copy of Mr Hingston’s workers compensation claim. (Pacific Tug has provided a statutory declaration from their office manager dated 14 October 2011 stating that the letter dated 17 February 2010 was not enclosed and the copy claim enclosed was that of another person and not Mr Hingston.) Pacific Tug did not respond to the letter dated 17 August 2010. On 9 September 2010, Mr Hingston’s solicitors wrote to Pacific Tug pointing out that no response had been received to Mr Hingston’s claim and requesting a reconsideration of its deemed decision in accordance with s 78 of the SRC Act. On the same day, they also wrote to Pacific Tug’s insurance broker enclosing a copy of their letters to Pacific Tug and asking who was Pacific Tug’s insurer for such claims. When the brokers did not reply, on 18 October 2010, Mr Hingston’s solicitors wrote again requesting a response to their earlier letter.
9. By letter dated 25 October 2010, QBE notified Mr Hingston’s solicitors that payments to Mr Hingston under the WA Act would cease on about 3 December 2010.
10. On 15 November 2010, Mr Hingston’s solicitors filed an application for review of the deemed decision by Pacific Tug with the Tribunal.
The Respondent’s Contentions
11. The Respondent contends that the Tribunal does not have jurisdiction to hear Mr Hingston’s application. Its first contention is that there is no ‘reviewable decision’ for the Tribunal to review.
12. Pursuant to s 88(1) of the SRC Act, applications may be made to the Tribunal for a review of a reviewable decision. The term ‘reviewable decision’ is defined in s 76(1) to mean a decision made under s 78. Decisions under s 78 are those made following a request for reconsideration of a decision.
13. The Respondent states that pursuant to s 73(2) it had 12 days after the day on which it received the claim dated 17 February 2010 to determine its liability. Since it failed to do so, s 73(6) provides that it is deemed to have made a decision refusing the claim. Pursuant to s 78(2) and (3), a request for reconsideration of, in this case, the deemed decision must be made within 30 days after it came to the notice of the Applicant or within such further period as the Respondent allows. The Respondent contends that because the Applicant has never sought a reconsideration of the deemed refusal of the claim dated 17 February 2010 within time, there is no reviewable decision in relation to that claim for the Tribunal to review.
14. With regard to Mr Hingston’s solicitors’ letter dated 17 August 2010, the Respondent contends that this was not a valid claim because it did not state that it was a fresh claim or that the Applicant wished the documents lodged on 17 February 2010 to be treated as a fresh claim. Alternatively, it did not enclose the letter dated 17 February 2010 and enclosed a claim form for another person.
15. The Respondent’s second contention is that at the time of the accident, the Cape Don was not a ‘prescribed ship’ so that the SRC Act does not apply. Section 19(1) of the SRC Act states:
(1) This Act applies to the employment of employees on a prescribed ship that is engaged in trade or commerce:
(a) between Australia and places outside Australia; or
(aa) between 2 places outside Australia; or
(b) among the States; or
(c) within a Territory, between a State and a Territory or between 2 Territories.
16. The word ‘employee’ is defined in s 4(1) to include a ‘seafarer’ which is in turn defined in s 3 to include “a person employed in any capacity on a prescribed ship”. The term ‘prescribed ship’ is defined in s 3 as meaning “a ship to which Part II of the Navigation Act applies”. The Navigation Act 1912 (Cth) (the 1912 Act) specifies the ships to which it applies by specifically excluding certain categories of ship, including in s 2(1)(a) “a trading ship proceeding on a voyage other than an overseas voyage or an interstate voyage”. However, s 8AA of the 1912 Act permits the owner of a ship to apply to the Australian Maritime Safety Authority for a declaration that the Act “applies in relation to the ship even when the ship is proceeding on a voyage other than an overseas voyage or an inter-state voyage”. As an example, the Tribunal has been provided with a copy of such a declaration dated 17 August 2010.
17. Section 2(2) of the 1912 Act states:
(2)A ship shall, for the purposes of this section, be deemed to be proceeding on a voyage from the time when it is got under way for the purpose of proceeding on the voyage until the time when it is got under way for the purpose of proceeding on another voyage.
18. The Respondent’s third contention is that the Cape Don was not engaged in ‘trade or commerce’ for the purposes of s 19 of the SRC Act at the time of the accident so that the SRC Act does not apply.
19. The Respondent’s final contention is that compensation is not payable under the SRC Act in circumstances where the Applicant has already applied for and received compensation under the WA Act.
The Evidence
20. Mr Hingston provided a statement dated 1 July 2011 and gave evidence at the hearing. He said there had been a delay in the Cape Don’s departure from Dampier as a result of the need for repairs to the batteries on the Hippopotes which appeared to have been shorting out. He and the chief engineer, Bernard Barrie, had inspected the batteries but electrical contractors were called in to repair them. After the batteries had been repaired and at the time of the accident, the crew of the Cape Don were in the process of attaching the tow cable to the Hippopotes and the Cape Don’s engines were running in readiness for leaving.
21. Mr Hingston said the operation of the tow cable was part of his responsibilities and, in particular, ensuring that the tow cable and the chains running from either side of the Hippopotes to the bridle were connected to the ‘D’ shackle correctly. At the time of the accident, modifications to the bridle had been completed and the bridle section had already been dropped into the water. Three of the crew were heaving the tow cable over the stern of the Cape Don in readiness for taking up the mass of the Hippopotes in tow. As was usual in such a situation, he was helping out on the deck of the Cape Don. As the crew pushed the heavy cable over the piping, it slipped and unwound down the side of the Cape Don striking Mr Hingston and crushing him against a guidance bar.
22. Mr Hingston said he was under the impression that the Cape Don was about to leave. On 9 March 2009 and at breakfast on 10 March 2009 Captain Ole Olesen said they would be going as soon as repairs to the Hippopotes’ batteries had been completed. Further, Mr Barrie told him to get some rest during the day because Mr Hingston would be doing the engine room watch from 6.00pm that evening to 6.00am the following morning. Mr Hingston said there would be no reason for Mr Barrie giving him such an instruction unless the ship was getting ready to leave. Later that day, at about 1.00pm, Mr Hingston was present when Captain Olesen said to the First Mate words to the effect of “We’ll hook up and get going”. There were some problems attaching the tow cable but, by about 3.30pm, this had been completed and the crew was heaving the cable over the stern. Mr Hingston said there was no doubt in his mind that they were going to leave shortly after 3.30pm.
23. Both the Chief Engineer, Mr Barrie, and Mr Olesen, the Master of the Cape Don, also provided statements, dated 8 July 2011 and 7 July 2011 respectively, and gave evidence at the hearing. Mr Barrie did not recall what Captain Olesen had said to the crew about departing Dampier. With regard to Mr Hingston doing the night watch, Mr Barrie said watches were kept on the ship even when not underway. In any event, any direction he might have given Mr Hingston about keeping watches would have no bearing on the departure which was a decision for the Captain on instructions from Van Oord, the dredging company.
24. Mr Barrie said at the time of the incident, preparations for the tow were not complete. The retrieval line for the chain had not been connected, nor the breakaway lines to ensure the bridle was set properly in the water. He estimated that there was another one and a half to two hours work to be done before the tow preparations were complete. Gob lines to maintain the position of the tow cable would be attached once the tug was underway or once the tension had been taken up on the tow line. The time required for the Hippopotes’ letting go of its mooring would also depend on the conditions. Mr Barrie said the reason for the Cape Don’s engines running at the time of the incident was to enable it to move into a suitable position to connect the tow and was not because the Cape Don was ready to leave.
25. Mr Olesen had no specific recollection of the battery problems on the Hippopotes nor of remarks he might have made to the crew. He said he might have told the crew he intended to depart on 10 March 2009 to motivate them without his having actually made the decision to depart that day. At the time of the incident, he was on board the Hippopotes assisting in preparations for the tow and did not witness what occurred.
26. Mr Olesen said even with the tow cable connected, the emergency tow was still to be connected and there were other things to be done before the Cape Don could leave. Mr Olesen needed to satisfy himself that everything on the dredge Hippopotes was secure and that the dredge was seaworthy because the dredge crew, who were still present at the time of the incident, would be going ashore and flying to the next destination. Once everything was ready, Mr Olesen needed to obtain a direction to sail from Van Oord and clearance from the Dampier Port Authority to cross channels used by other shipping. All this could take some hours and he would not have been ready to sail until after dark. While he acknowledged that night sailings in Port Dampier are common, he preferred the safer practice of departing early in the morning due to having to navigate confined waters with a large tow and without an escort.
27. Mr Olesen was referred to his log for the Cape Don on 10 March 2009. He said the reason for starting the engines at 2.00pm was to enable the Cape Don to manoeuvre in the process of hooking up the tow to the dredge.
28. The final witness at the hearing was Christopher Peters, Chief Executive Officer of Pacific Tug, who provided a statement dated 4 May 2011. Mr Peters said Van Oord, one of the largest dredging companies in the world, is one of Pacific Tug’s main clients. Pacific Tug did not own the Cape Don but chartered it from Mackenzie Marine and Towage for the purpose of contracting with Van Oord. On Pacific Tug taking possession of the Cape Don in Freemantle, the tug had to undergo repairs to bring it up to standard.
29. Mr Peters said he drafted the contract (the Charter Party) between Pacific Tug and Van Oord using the standard industry form. The contract provided for the delivery of the Cape Don to the port of Dampier and taking the Cape Don to Dampier from Freemantle was therefore at Pacific Tug’s expense. Pacific Tug was first paid at Dampier. Mr Peters acknowledged, however, that all the crew, including Mr Olesen, Mr Barrie and Mr Hingston, but with the exception of the mate, were engaged in Freemantle. The work visas for the crew and the required certificate for the tug to operate in Indonesian waters were handled by Van Oord, some while the Cape Don was still in Freemantle and others after it had arrived in Dampier or while it was in transit to Tangguh.
30. The contract stated that employment of the Cape Don was restricted to:
(1) Towing Dredge Hippopotes Dampier to Tangguh.
(2) Remain on site as accommodation for both Cape Don and PT Kotor Crew.
(3) Assisting in operations on site as consistent with (2).
(4) Tow of Dredge Hippopotes Tangguh to Dampier.
31. However, Mr Peters said the parties understood there was flexibility in terms of what was performed under the contract. For example, even though the date of delivery in Dampier stated in the contract was 16 February 2009, the vessel was not delivered in Dampier until 4 March 2009 and was still accepted by Van Oord. The contract was essentially a framework for operating the vessel. Van Oord gave the directions as to what was to be performed although the vessel was under the direct control of the Master. It was therefore always possible that the voyage from Dampier to Tangguh might not go ahead and that the Cape Don might be employed for other purposes. Indeed, when ultimately the Cape Don arrived in Tangguh with the Hippopotes, it did not serve as on site accommodation for the crews but did perform other work which resulted in fatigue issues with the crew because the Cape Don was working around the clock. Mr Peters noted that the charter of the Cape Don from Mackenzie Marine and Towage was equally flexible to mirror the arrangements with Van Oord.
Discussion
Was there a ‘reviewable decision’?
32. Mr Halligan, for the Applicant, submitted that at all relevant times the Respondent was on clear notice of the nature of the Applicant’s claim and the Applicant therefore relies on a claim having been made on 17 August 2010 that was substantially in compliance with s 63 of the SRC Act. The Respondent having failed to respond to that claim after 12 days, the Respondent is deemed to have disallowed the claim by operation of s 73(6). On 9 September 2010, the Applicant requested a reconsideration of the deemed decision to which the Respondent did not respond within the required 60 day period. The deemed reconsideration decision - pursuant to s 79(6), dated 8 November 2010 – is the reviewable decision giving the Tribunal jurisdiction. Mr Halligan said the SRC Act is beneficial legislation and the Tribunal “should not endorse the meticulous liberalism promulgated by the Respondent”.
33. Mr Harding, for the Respondent, said Mr Hingston had been paid compensation under the WA Act, which was the applicable legislation in his case. Mr Harding contended that although the SRC Act is beneficial legislation, a strict application of its provisions is appropriate in this case given that the Applicant’s letter of 17 August 2010 failed to attach a copy of the letter of 17 February 2010 or Mr Hingston’s compensation claim form and did not state it was a fresh claim. Mr Hingston’s solicitors, who have represented him throughout the present proceedings and who practice in this field of law, could have requested a reconsideration within 30 days of the deemed decision in respect of the 17 February 2010 claim or have sought an extension of time to do so (pursuant to s 78(3)). They did not do so. Thus, Mr Harding contended, there is no ‘reviewable decision’ endowing the Tribunal with jurisdiction.
34. Mr Halligan referred me to the NSW Court of Appeal decision in Articulate Restoration & Developments Pty Ltd v Crawford (1994) 10 NSWCCR 751, at 765, where Mahoney JA commented:
Notwithstanding the technicalities that have affected its construction, the workers compensation legislation should, in my opinion, be regarded as beneficial legislation in the sense at least that it is directed to ensuring that industry bears the burden, or most of the burden, of the accidents which, as experience has shown, it inevitably produces. In such legislation, it is proper that the entitlements of the injured person not depend upon distinctions that are too nice.
A similar approach was taken by Wilcox J in Commonwealth v Ford (1986) 65 ALR 323 (see, especially, at 329).
35. I agree that legislation such as this should be interpreted beneficially. With regard to s 63 of the SRC Act, while strict compliance with the requirement that a person must make a claim for compensation in writing on an approved form is not required, there should, nevertheless, be “substantial compliance”. I am not satisfied that the Applicant’s letter dated 17 August 2010, which failed to attach either a copy of their letter dated 17 February 2010 or the compensation claim made at that time in respect of Mr Hingston should be considered substantial compliance. In my view, it is too defective to be considered a claim. The circumstances of this matter are different from the Articulate Restoration case in so far as here, Mr Hingston had already received compensation in respect of his injuries under the WA Act. Mr Hingston has been represented by solicitors practising in this field throughout these proceedings and I also note, as Mr Harding pointed out, that this matter might have been dealt with more expeditiously by Mr Hingston’s solicitors requesting an extension of time (pursuant to s 78(2)) for requesting a reconsideration of the deemed decision on the 17 February 2010 claim.
36. The effect of my finding that the letter dated 17 August 2010 should not be considered a valid claim for the purposes of the SRC Act is that the Tribunal is without jurisdiction because there is no reviewable decision. However, in case my finding that the claim purported to have been made on 17 August 2010 was defective is considered to be wrong, I will go on to address the other issues raised by the Respondent. The Respondent contends the other issues would mean that, in any event, the SRC Act does not apply in this case.
Was the Cape Don a prescribed ship?
37. As stated above, the Respondent contends that at the time of the accident, the Cape Don was not a ‘prescribed ship’ so that the SRC Act does not apply. A ‘prescribed ship’ is one to which Part II of the 1912 Act applies. Part II applies to a ship registered in Australia, which the Cape Don is. However, s 2(1)(a) of the 1912 Act provides relevantly that the Act does not apply to “a trading ship proceeding on a voyage other than an overseas voyage or an interstate voyage”. As noted above, there is an exception to this where the Australian Maritime Safety Authority has issued a declaration under s 8AA. However, there is no relevant declaration applicable at the time Mr Hingston was injured.
38. Thus, the first question is whether at the time of the accident the Cape Don was proceeding on an overseas or interstate voyage. An ‘overseas voyage’ is defined in s 2(1) to include a voyage between “a port in Australia and a port outside Australia”. The Cape Don was not proceeding on an interstate voyage as was the case in Tiwi Barge Services Pty Ltd v Stark (1997) 78 FCR 218. Thus, the relevant question is: was she proceeding on an overseas voyage? Reference must then be made to s 2(2) of the 1912 Act, quoted above, to determine what is meant by ‘proceeding on a voyage’. A ship is deemed to be proceeding on a voyage “from the time it is got under way for the purpose of proceeding on the voyage”. Thus, if the Cape Don had got underway bound for Tangguh at the time of the accident, then its voyage would be an overseas voyage for the purposes of the 1912 Act.
39. One must then ask what do the words ‘got under way’ mean? I agree with the Respondent that the words should be given their ordinary meaning. The online Oxford English Dictionary defines ‘underway’ or ‘under way’ in its nautical sense as meaning “having begun to move through the water”. The Macquarie Dictionary, 4th edition, 2005, defines ‘underway’ as “1. In progress” and “2. to get underway, to begin”. It seems clear, therefore, that ‘got under way’ involves movement and because the past tense ‘got’ is used, that movement will have commenced.
40. Mr Harding also referred to two decisions where whether a ship was under way had been considered. In The Dagmar (1929) 33 Lloyds List Law Reports 108, at 112, Hill J held in the case of a dumb hopper, where the stern ropes had been cast off to allow the hopper to swing round in the River Thames, but where the hopper was still secured by its forward ropes to a dredger and controlled by that rope, that the hopper could not be regarded as a vessel ‘under way’. In Schultz v Pettitt (1980) 25 SASR 427, at 436, Cox J quoted with approval a Special Magistrate’s discussion of the meaning of ‘under way’ in which the Magistrate relied on the Shorter Oxford Dictionary meaning of “having begun to move through the water”.
41. The facts of this case are that the contract (the Charter Party) provided for the Cape Don to be delivered to the port of Dampier for use by Van Oord. The contract provided firstly, for the Cape Don to be employed in towing the dredge Hippopotes from Dampier to Tangguh in West Papua. Thus, in my view it is clear that the planned overseas voyage was to begin in Dampier. I do not consider the fact that Pacific Tug employed most of the crew in Freemantle to be significant – this was a matter for Pacific Tug, and presumably of practicality given the need for Pacific Tug to deliver the tug to the port of Dampier. I also note Mr Peters’ evidence that the Cape Don sailed from Fremantle to Dampier at the expense of Pacific Tug and payment under the contract with Van Oord only commenced once the Cape Don had been delivered in Dampier.
42. These facts distinguish this case from that of Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (2004) 140 FCR 445, where Hely J found the vessel had already embarked on her voyage involving transporting 130,000 tonnes of coal to Rotterdam when the incident in question occurred. The voyage commenced in Newcastle and involved stopping at Port Kembla to take on more coal, before proceeding to Rotterdam. In the course of berthing in Port Kembla harbour, the vessel collided with the berth and the ship loader causing significant damage.
43. Mr Hingston’s evidence is that the Cape Don was in the process of getting under way at the time of the accident. He thought that heaving the tow cable over the stern of the Cape Don was in readiness for taking up the mass of the Hippopotes in tow and that the Cape Don was about to leave. I am satisfied, however, from the evidence of Mr Barrie, the chief engineer, and Mr Olesen, the captain, that Mr Hingston was mistaken and that there were various other tasks to be completed before the Cape Don could get under way. Mr Barrie estimated that there was one and a half to two hours work to be done before the tow preparations were complete, referring to the need to connect the retrieval and breakaway lines. Mr Olesen said he would also need to inspect the Hippopotes to ensure that it was secure and seaworthy in readiness for departure. Then, when everything was ready, he still needed a direction to sail from Van Oord and clearance from the Dampier Port Authority, with the latter sometimes taking some hours to provide the necessary clearance.
44. Thus, the evidence does not, in my view, establish that the Cape Don was ‘got under way’. At the time of the accident, it was not yet proceeding on an overseas voyage with the consequence that the SRC Act did not apply at the time the accident occurred.
Was the Cape Don engaged in trade or commerce?
45. The Respondent also contends that the Cape Don was not engaged in ‘trade or commerce’. The Respondent contends that Mr Peters’ evidence established that despite the terms of the contract between Pacific Tug and Van Oord, it is recognised in the industry that there needs to be flexibility to allow for changing conditions. Thus, Van Oord, which after delivery of the Cape Don was in overall control of its operation, might have decided not to go ahead with the voyage to Tangguh but instead to employ the Cape Don in local operations.
46. Mr Halligan referred me to the Davies J’s discussion of the meaning of ‘trade or commerce’ in the Full Federal Court decision in Ian Rutherford Plimer v Allen Roberts & Anor [1997] FCA 1361, where His Honour recognised that while trade or commerce is understood to refer to activities or transactions of a trading or commercial character, the precise limits cannot be definitively stated and the circumstances of the particular case will need to be closely considered.
47. In my view, the Cape Don was engaged in commercial activity at the time of the accident. She had been chartered by a dredging company for the principal purpose of towing a dredger to West Papua and back. She was engaged in performing that charter – in preparing to tow the Hippopotes - at the time that the accident occurred. The fact that the voyage had not actually commenced does not indicate that the Cape Don was not undertaking commercial activity. Thus, in my view, the Cape Don was engaged in trade or commerce.
Double Compensation
48. Finally, the Respondent contends that compensation is not payable under the SRC Act in circumstances where the Applicant has already received compensation under the WA Act. I note the evidence that shortly after the accident, the Respondent sent the Applicant a claim form for compensation under the WA Act, asking that he complete and return the form. The claim was accepted by the Respondent’s workers compensation insurer under the WA Act, QBE, who commenced paying workers compensation to Mr Hingston. I note that s 139A of the SRC Act excludes the operation of State workers compensation law where the SRC Act applies. If the SRC Act applied in this case, the Tribunal would be limited to making such determinations as it is empowered to make under the terms of the Act. A determination about the effect of a successful claim for compensation in respect of the same injury under State legislation does not appear to me to be within the Tribunal’s power. However, my opinion on this issue is academic given my determination that, in any event, the Tribunal is without jurisdiction to entertain Mr Hingston’s application.
Decision
49. The Tribunal has no jurisdiction to entertain Mr Hingston’s application.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.
Signed:..........[sgd].....................................................................
AssociateDates of Hearing 17 and 18 October 2011
Date of Decision 28 October 2011
Counsel for the Applicant H Halligan
Solicitor for the Applicant W.G. McNally Joes Staff Lawyers
Counsel for the Respondent A Harding
Solicitor for the Respondent Norton Rose Australia
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