Murray Hingston and Pacific Tug (Australia) Pty Ltd - [2012] AATA 277

[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…

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: [2012] AATA 277
Decision Date: 9 May 2012

CaseChat Overview and Summary

Murray Hingston and Pacific Tug (Australia) Pty Ltd were involved in a dispute regarding the compensation for an injury sustained by Mr Hingston while working on board a ship. The matter was brought before the Administrative Appeals Tribunal, where the primary issue was whether the ship in question was classified as a ‘prescribed ship’ under the Seafarers Rehabilitation and Compensation Act. The outcome of this classification would determine the jurisdiction of the Tribunal to entertain Mr Hingston’s application for compensation.

The legal issue before the Tribunal was whether the ship, the Cape Don, was a ‘prescribed ship’ at the time of the accident on 10 March 2009. This classification was crucial as it would determine the applicability of the Seafarers Rehabilitation and Compensation Act to the injuries sustained by Mr Hingston. The Tribunal needed to decide if the Cape Don was in a state of being ‘got under way’ as defined by the Act, which would make it a ‘prescribed ship’ and thus subject to the Act’s provisions.

The Tribunal relied on the evidence and submissions from the previous proceedings and adopted the reasons stated in the statement of reasons for that decision. The Tribunal found that the Cape Don was not ‘got under way’ at the time of the accident, thereby not qualifying as a ‘prescribed ship’. Consequently, the Seafarers Rehabilitation and Compensation Act did not apply, and the Tribunal lacked jurisdiction to entertain Mr Hingston’s application for review. This decision was based on the interpretation of the Act and the specific circumstances of the case as outlined in the previous proceedings.

The final orders of the Tribunal were that the application for review filed by Mr Hingston on 26 March 2012 was dismissed due to the lack of jurisdiction under the Seafarers Rehabilitation and Compensation Act. This decision followed from the determination that the Cape Don was not a ‘prescribed ship’ at the time of the accident.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/1134
Re	Murray Hingston
APPLICANT
And	Pacific Tug (Australia) Pty Ltd
RESPONDENT

Tribunal	Deputy President R P Handley
Date	9 May 2012
Place	Sydney