Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1135
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/190
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID ANDREW HUME Applicant
And
TOTAL MARINE SERVICES PTY LTD
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President Date29 October 2004
PlacePerth
Decision The Tribunal sets aside the deemed reviewable decision of the respondent and, in substitution therefor, decides that the respondent is liable, pursuant to ss 24 and 26(1) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“the Act”), to pay compensation to the applicant under the Act for a lower back injury sustained by him on 20 April 2001, and the amount of compensation that the respondent is liable to pay to the applicant from March 2002, in accordance with s 31 of the Act, is as follows:
· for the period from March 2002 to 31 December 2003 – pursuant to s 31(5)(d) of the Act, an amount that, when added to the amount that the applicant was able to earn during each week in suitable employment (as determined on the basis of the Tribunal’s finding set out in paragraph 93 of its Reasons for Decision herein) results in an amount equal to 90% of his “normal weekly earnings” (as defined in s 13 of the Act);
· for the period from 1 January 2004 onwards – pursuant to s 31(5)(f) of the Act, an amount that, when added to the amount that the applicant was able to earn during each week in suitable employment (as determined on the basis of the Tribunal’s finding set out in paragraph 93 of its Reasons for Decision herein) results in an amount equal to 100% of his “normal weekly earnings” (as defined in s 13 of the Act).
The Tribunal orders, pursuant to s 92(1) of the Act, that the respondent pay the costs of the applicant of these proceedings, such costs, in the absence of agreement between the parties as to the amount thereof, to be taxed by a District Registrar or a Deputy Registrar of the Tribunal in accordance with clause 6 of the Tribunal’s General Practice Direction dated 18 May 1998.
..............(sgd S D Hotop)...............
Deputy President
1. David Andrew Hume (“the applicant”) has applied to the Tribunal for review of a “reviewable decision” deemed to have been made on or about 21 May 2002, pursuant to s 79(6) of the Seafarers Rehabilitation and Compensation Act 1992(Cth) (“the Act”), by Total Marine Services Pty Ltd (“the respondent”). The effect of that deemed reviewable decision was that a determination of the respondent, dated 18 March 2002, to terminate incapacity payments which had been made to the applicant pursuant to s 31(2) of the Act, was affirmed.
2. At the hearing, the applicant was represented by Mr D Leask, solicitor, and the respondent was represented by Mr G Hancy of counsel. The Tribunal had before it the statement and accompanying documents (“T documents”) lodged on behalf of the respondent pursuant…
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- Case
- [2004] AATA 1135
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the respondent was liable for compensation under sections 24 and 26(1) of the Act and, if so, the amount of compensation payable from March 2002 onwards. The court had to determine whether Hume's employment as a lecturer constituted suitable employment under the Act and assess the weekly earnings he was able to achieve in that role to determine the compensation payable. The court also needed to consider the respondent's liability for compensation under section 31 of the Act, taking into account Hume's capacity to earn in suitable employment.
The court found that the respondent was indeed liable to pay compensation under sections 24 and 26(1) of the Act. It determined that Hume's employment as a TAFE lecturer constituted suitable employment, and it assessed his weekly earnings based on the Tribunal's findings. The compensation payable from March 2002 was set at an amount that, when added to Hume's weekly earnings, would equal 90% of his normal weekly earnings until December 2003 and 100% thereafter. The court set aside the respondent's decision and ordered the respondent to pay the costs of the proceedings.
Orders
Orders of the court
The Tribunal sets aside the deemed reviewable decision of the respondent and, in substitution therefor, decides that the respondent is liable, pursuant to ss 24 and 26(1) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“the Act”), to pay compensation to the applicant under the Act for a lower back injury sustained by him on 20 April 2001, and the amount of compensation that the respondent is liable to pay to the applicant from March 2002, in accordance with s 31 of the Act, is as follows:
· for the period from March 2002 to 31 December 2003 – pursuant to s 31(5)(d) of the Act, an amount that, when added to the amount that the applicant was able to earn during each week in suitable employment (as determined on the basis of the Tribunal’s finding set out in paragraph 93 of its Reasons for Decision herein) results in an amount equal to 90% of his “normal weekly earnings” (as defined in s 13 of the Act);
· for the period from 1 January 2004 onwards – pursuant to s 31(5)(f) of the Act, an amount that, when added to the amount that the applicant was able to earn during each week in suitable employment (as determined on the basis of the Tribunal’s finding set out in paragraph 93 of its Reasons for Decision herein) results in an amount equal to 100% of his “normal weekly earnings” (as defined in s 13 of the Act).
The Tribunal orders, pursuant to s 92(1) of the Act, that the respondent pay the costs of the applicant of these proceedings, such costs, in the absence of agreement between the parties as to the amount thereof, to be taxed by a District Registrar or a Deputy Registrar of the Tribunal in accordance with clause 6 of the Tribunal’s General Practice Direction dated 18 May 1998.
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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