Lawson v Stateships

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 389

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2002/337

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BARRY LIONEL LAWSON

Applicant

And STATESHIPS

Respondent

DECISION

Tribunal Associate Professor S D Hotop, Deputy President
Mr M Allen, Member

Date28 April 2003

PlacePerth

Decision

The Tribunal:

·     sets aside the decision under review; and

· in substitution therefor, decides that the amount of compensation by way of incapacity payments payable to the applicant, pursuant to s 31 of the Seafarers Rehabilitation and Compensation Act 1992 (“the Act”), in respect of his right knee injury sustained on 27 July 1991, is to be calculated on the basis that, with effect from 16 October 2000, his “normal weekly earnings”, within the meaning of s 13 of the Act, are increased by the same percentage as the amount per week payable to an employee classified as a cook/seaman under the “Norwest Shipping/Maritime Union of Australia Enterprise Agreement 2000” was increased by that Agreement.

The Tribunal orders, pursuant to s 92(1) of the Act, that the respondent pay the costs of the applicant of these proceedings (not including any costs incurred by the applicant in relation to the “Application for Extension of Time for Lodging Application for Review” lodged on 4 September 2002 – see s 92(3) of the Act), such costs, in the absence of agreement, to be taxed by a District Registrar or a Deputy Registrar of the Tribunal.

.........(sgd S D Hotop)......................

Deputy President

Oral evidence was given by the applicant and by Cleve Woollams, Peter Groessler and David Mitchell (who were called as witnesses by the applicant), and by Charles Viola (who was called as a witness by the respondent).

The Factual Background

3.      The relevant background facts, about which there is no dispute between the parties, and as found by the Tribunal on the basis of the T documents and the exhibits, are as follows.

4.      In July 1991 the applicant injured his right knee in the course of his employment by the respondent as a cook/seaman on board the MV Roberta Jull.. At that time the applicant was being paid wages in accordance with the Maritime Industry Modern Ships Award 1989 (“MIMSA”). He was subsequently certified as medically unfit for sea duties for certain periods and, on 9 June 1994, he was certified as permanently unfit for sea duties.

5. On 10 June 1994 the applicant lodged with the respondent a claim for compensation under the Act in respect of his right knee injury. The matter ultimately came before the Tribunal for determination and, on 26 June 1998, the Tribunal decided that the respondent continued to be liable to pay compensation, by way of incapacity payments, to the applicant in accordance with s 31 of the Act since 10 June 1994 (with the exception of the period from May to September 1996): see AAT Decision No 11887A.

6.      Following the Tribunal’s decision of 26 June 1998 the parties were unable to…