Murray Hingston and Pacific Tug (Australia) Pty Ltd
[2012] AATA 277
•9 May 2012
[2012] AATA 277
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1134
Re
Murray Hingston
APPLICANT
And
Pacific Tug (Australia) Pty Ltd
RESPONDENT
DECISION
Tribunal Deputy President R P Handley
Date 9 May 2012 Place Sydney Decision Summary:
The Tribunal has no jurisdiction to entertain Mr Hingston’s application for review filed on 26 March 2012.
.........[sgd]...........................................................
Deputy President R P Handley
CATCHWORDS
JURISIDICTION QUESTION – applicant injured while working on board a ship – application for compensation – question of whether or not the ship was a ‘prescribed ship’ for the purposes of the Seafarers Rehabilitation and Compensation Act
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Navigation Act 1912 (Cth)
Seafarers Rehabilitation and Compensation Act 1992 (Cth)
CASES
Murray Hingston & Pacific Tug (Australia) Pty Ltd [2011] AATA 761
REASONS FOR DECISION
Deputy President R P Handley
9 May 2012
On 26 March 2012, Mr Hingston (the Applicant) filed an application with the Tribunal for review of a decision made by Pacific Tug (Australia) Pty Ltd (the Respondent) on 9 March 2012 to affirm a decision made on 23 December 2011 to reject Mr Hingston’s claim for compensation under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the SRC Act). Mr Hingston’s claim for compensation, dated 6 December 2011, was in respect of injuries to his spine and liver sustained in an accident on 10 March 2009 on the tug Cape Don when it was in port at Dampier in Western Australia.
Mr Hingston made a similar claim for compensation under the SRC Act in 2010 in respect of the same injuries which was the subject of an application filed in the Tribunal on 15 November 2010. The outcome of those proceedings was a decision by the Tribunal on 28 October 2011 that it had no jurisdiction to entertain Mr Hingston’s application: Murray Hingston & Pacific Tug (Australia) Pty Ltd [2011] AATA 761. That decision is the subject of an appeal to the Federal Court.
In the statement of reasons for my decision in that matter, I stated that the Tribunal was without jurisdiction because there was no reviewable decision for the purposes of the SRC Act. However, I also addressed the Respondent’s second contention, which was that the Cape Don was not a ‘prescribed ship’ for the purposes of the SRC Act, and therefore the SRC Act did not apply in respect of the injuries suffered by Mr Hingston (the ‘prescribed ship’ issue).
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.
The word ‘employee’ is defined in s 4(1) to include a ‘seafarer’, a word 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 inter-State voyage”.
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.
I concluded that the evidence did not establish that at the time of the accident the Cape Don was “got under way” and it was not, therefore, yet proceeding on an overseas voyage. As a result, the Cape Don was not a ‘prescribed ship’ and SRC Act did not apply in respect of the injuries sustained by Mr Hingston in the accident.
In the Respondent’s decision dated 9 March 2012 in relation to Mr Hingston’s most recent claim, the Respondent affirmed its determination dated 23 December 2011 on the basis that:
(1) it is prejudiced by the fresh claim;
(2) there is no new claim for compensation;
(3) the provisions of the SRC Act do not apply to the claim for the reasons specified in paragraphs 37-38 in the Decision and Reasons for Decision of Deputy President Handley of the Administrative Appeals Tribunal dated 28 October 2011.
In response to the filing of Mr Hingston’s application for review on 26 March 2012, the Deputy Registrar of the Tribunal wrote to Mr Hingston on 28 March 2012, asking him to advise the Tribunal why, in the light of the Tribunal’s decision dated 28 October 2011, he considered the Tribunal had jurisdiction to review the decision dated 9 March 2012. Mr Hingston’s solicitors responded by letter dated 10 April 2012 stating that their client is relying on a new claim for compensation and submitting that the Tribunal’s review of this claim does not comprise a repeat of its earlier determination. The Tribunal therefore listed the issue of whether it had jurisdiction in relation to Mr Hingston’s application for review filed on 26 March 2012 for a preliminary hearing.
SUBMISSIONS
Mr Harding, for the Respondent, said that, in contrast to the previous proceedings, the Respondent now accepted in this matter that there was a valid claim for compensation and a reviewable decision for the purposes of the SRC Act. Mr King, for the Applicant, therefore requested that the Tribunal make a decision in this matter as to whether the Cape Don was a ‘prescribed ship’ for the purposes of determining the Tribunal’s jurisdiction to entertain Mr Hingston’s application for review. The parties agreed that I should make my decision on the ‘prescribed ship’ issue on the basis of the same evidence and submissions as those in the previous proceedings.
The parties anticipate that I will make the same decision on the ‘prescribed ship’ issue as that made in the previous proceedings. Mr King indicated the Applicant would then appeal my decision to the Federal Court where the parties would then apply to link this appeal with that arising from the previous proceedings, and the Court would then be asked to address the ‘prescribed ship’ issue in its decision.
DECISION
The parties in the present proceedings have asked me to rely on the same evidence and submissions as those in the previous proceedings. In the statement of reasons for my decision in those proceedings, I referred to the evidence before me, the submissions made by the parties and, at paragraphs 37 to 44, explained my reasons for deciding that at the time of the accident the Cape Don was not “got under way”. I adopt those reasons for the purpose of determining the ‘prescribed ship’ issue in the present proceedings.
The effect of my deciding that the Cape Don was not “got under way” at the time of the accident on 10 March 2009 is that it was not at the time a ‘prescribed ship’ and so, pursuant to s 19(1) of the SRC Act, the SRC Act does not apply in respect of the injuries sustained by Mr Hingston in the accident. Thus, the Tribunal has no jurisdiction to entertain Mr Hingston’s application for review filed on 26 March 2012.
I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President R P Handley.
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Associate
Dated 9 May 2012
Date of hearing 7 May 2012 Date final submissions received 7 May 2012 Counsel for the Applicant Mr L King SC Solicitors for the Applicant WG McNally Jones Staff Counsel for the Respondent Mr S Harding Solicitors for the Respondent Norton Rose Group
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