Hingston and Pacific Tug (Australia) Pty Ltd - [2011] AATA 761

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] AATA 761
Decision Date: 28 October 2011

CaseChat Overview and Summary

In the case of Hingston and Pacific Tug (Australia) Pty Ltd, the primary issue before the Tribunal was whether it had jurisdiction to hear an application for compensation under the Seafarers Rehabilitation and Compensation Act 1988 (Cth) when the applicant, Mr Hingston, had previously accepted compensation under the Workers Compensation and Injury Management Act 1981 (WA). The case also explored the consequences of a deemed refusal of compensation under the Commonwealth Act and whether this precluded a new claim from being made. The legal questions revolved around the interpretation of the relevant sections of the Seafarers Rehabilitation and Compensation Act, including sections 3, 4, 19, 63, 73, 76, 78, 79, 88, and 139A, and whether these provisions allowed for a new claim to be lodged after an initial deemed refusal.

The Tribunal examined previous case law to determine the implications of a deemed refusal under the Seafarers Rehabilitation and Compensation Act. It found that the deemed refusal resulted in the loss of the right to seek compensation under the Act. The Tribunal relied on cases such as Articulate Restorations & Developments Pty Ltd v Crawford, Commonwealth v Ford, Tiwi Barge Services Pty Ltd v Stark, The Dagmar, Schultz v Pettitt, and Port Kembla Coal Terminal Ltd v Braverus Maritime Inc to support its conclusion that once a deemed refusal occurs, it prevents a subsequent claim from being entertained. Additionally, the Tribunal noted that Mr Hingston had not sought a determination within the required timeframe, further complicating his position. Given these findings, the Tribunal concluded that it did not have jurisdiction to entertain Mr Hingston's application for compensation.

The Tribunal's decision was grounded in the statutory provisions and judicial precedents, which collectively indicated that the deemed refusal under the Seafarers Rehabilitation and Compensation Act precluded Mr Hingston from making a new claim. The Tribunal held that once a deemed refusal is recorded, the opportunity to seek compensation under the Act is lost, and no subsequent application could be made. The application was dismissed on the basis that the Tribunal lacked jurisdiction to entertain Mr Hingston’s claim for compensation under the Seafarers Rehabilitation and Compensation Act 1988 (Cth).

Orders

Orders of the court

The Tribunal has no jurisdiction to entertain Mr Hingston’s application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		Murray Hingston