FEDERAL COURT OF AUSTRALIA
Inco Ships Pty Ltd v Finlay Murdoch Hardman [2007] FCA 1138
SEAFARERS COMPENSATION – Appeal from Administrative Appeals Tribunal – whether employee entitled to compensation for injury under Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the Seafarers Act) – whether Certificate of Medical Fitness invalid when procured by misleading information – whether invalid Certificate of Medical Fitness means employee not a “seafarer” under s 3 of the Seafarers Act – whether content of notice given under s 63 of the Seafarers Act limits claim for compensation – whether aggravation of pre-existing degenerative condition – whether aggravation caused incapacity for work – whether incapacity materially contributed to by employment – whether employee made wilful and false representation about pre-existing disease – whether injury cause by serious and wilful misconduct
WORKERS COMPENSATION – see above
ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – whether issues can be raised for the first time on appeal – whether Tribunal erred in not addressing certain questions not raised at hearing
Seafarers Rehabilitation and Compensation Act 1992 (Cth) ss 3, 10(7), 26(1), 26(3), 63
Administrative Appeals Tribunal Act 1975 (Cth) s 44(7)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Navigation Act 1912 (Cth)
Migration Act 1958 (Cth)
Workmen’s Compensation Act 1897 (UK)
Workers Compensation Act 1971 (SA)
WorkCover Queensland Act 1996 (Qld)Comcare v Fiedler (2001) 115 FCR 328 considered
Coulton v Holcombe (1986) 162 CLR 1 cited
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 cited
Australian Meat Holdings Pty Ltd v Kazi [2004] 2 Qd R 458 considered
WorkCover Corporation (San Remo Macaroni Co Pty Ltd) v Da Ping (1994) 175 LSJS 469 cited
Yango Pastoral Co Pty Limited v First Chicago Australia Limited (1978) 139 CLR 410 applied
Visscher v Munro (2005) 147 FCR 538 cited
Nonferral (NSW) Pty Ltd v Taufia (1998) 43 NSWLR 312 cited
Lees v Comcare (1999) 56 ALD 84 cited
Zickar v MGH Plastic Industries Pty Limited (1995-1996) 187 CLR 310 cited
Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286 cited
Commonwealth v Beattie (1981) 53 FLR 191 cited
Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626 cited
ReSchofield and Comcare (1995) 38 ALD 124 cited
Johnson v Marshall Sons & Co Ltd [1906] AC 409 cited
Ismakovich v Broken Hill Pty Company Limited (1982) 49(2) SAIR 209 applied
Comcare v Calipari [2001] FCA 1534 cited
Richards v Faulls Pty Ltd [1971] WAR 129 cited
Hills v Brambles Holdings Ltd (1987) 4 ANZ Ins Cas 60-785 discussedINCO SHIPS PTY LTD v FINLAY MURDOCH HARDMAN
NSD 1242 OF 2006
MANSFIELD J
3 AUGUST 2007
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
NSD 1242 OF 2006
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT D G JARVIS
BETWEEN:
INCO SHIPS PTY LTD
ApplicantAND:
FINLAY MURDOCH HARDMAN
Respondent
JUDGE:
MANSFIELD J
DATE OF ORDER:
3 AUGUST 2007
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The application be…
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- Case
- [2007] FCA 1138
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the Tribunal correctly found that the respondent's left knee injury was aggravated during his employment with the applicant and whether the Tribunal's findings regarding the compensability of the injury and the absence of serious and wilful misconduct were supported by the evidence. The court had to determine whether the Tribunal's findings were open to it, given the evidence presented, and whether there were any errors in law that warranted interference with the Tribunal's decision.
The court found that the Tribunal's findings were supported by the evidence and that there were no errors in law that required the court to interfere with the decision. The Tribunal's findings that the respondent did not have any symptoms in his left knee until his employment with the applicant, that the torn meniscus identified during the arthroscopy probably pre-existed his employment, and that his employment with the applicant materially contributed to his incapacity for work were upheld. The court also found that there was no basis for the respondent to have been aware that his duties would cause the injury, and there was no causative link between the alleged misconduct and the compensable injury. The court concluded that the Tribunal's decision was correct and dismissed the application.
In light of the dismissal of the application, the court ordered that the applicant pay the respondent’s costs of the application.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay to the respondent his costs of the application.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: MANSFIELD J
Full text does not contain this section.