O'Sullivan v P & O Maritime Services Pty Ltd

[2017] FCA 508

FEDERAL COURT OF AUSTRALIA

O’Sullivan v P&O Maritime Service Pty Ltd [2017] FCA 508

Appeal from:	O’Sullivan v P&O Maritime Pty Ltd [2017] FCA 47
File number:	WAD 122 of 2017
Judge:	BARKER J
Date of judgment:	9 May 2017
Catchwords:	ADMINISTRATIVE LAW – application for extension of time to appeal and leave to appeal – where primary judge refused “appeal” from decision of Administrative Appeals Tribunal – construction of s 4(4) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) – question remains before Tribunal – application dismissed
Legislation:	Seafarers Rehabilitation and Compensation Act 1992 (Cth)
Cases cited:	O’Sullivan v P&O Maritime Pty Ltd [2017] FCA 47
Date of hearing:	9 May 2017
Registry:	Western Australia
Division:	General Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	9
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr J Lenczer
Solicitor for the Respondent:	Holman Fenwick Willan

ORDERS

WAD 122 of 2017

BETWEEN:

MICHAEL O'SULLIVAN

Applicant

AND:

P&O MARITIME SERVICE PTY LTD

Respondent

JUDGE:	BARKER J
DATE OF ORDER:	9 MAY 2017

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BARKER J:

1. The applicant, Mr Michael O’Sullivan, applies to extend the time to make an application for leave to appeal from a decision of the primary judge refusing an “appeal” from a decision of the Administrative Appeals Tribunal that concerned the claim made by Mr O’Sullivan against P&O Maritime Service Pty Ltd, the respondent, under the Seafarers Rehabilitation and Compensation Act 1992 (Cth).

2. The claim that Mr O’Sullivan wishes to pursue in the Tribunal concerns an injury arising from an incident in August 2014.  As I apprehend it, he considers that the injury is a recurrence of an injury he initially suffered in 1993, at a time when the respondent was his employer.

3. Even though the respondent has long since ceased to be his employer, and was not his employer in a strict sense in August 2014, at the time of the second incident referred to, he considered, in the proceeding in the Tribunal, that the respondent continued to be a relevant employer.

4. When the Tribunal ruled against his construction of s 4(4) of the Seafarers Act, he pursued an “appeal” against that construction in this Court.

5. In these circumstances, the primary judge, with respect, correctly ruled that no decision had actually been made by the Tribunal that finally affected the rights and interests of Mr O’Sullivan and, in effect, the Tribunal proceeding remained on foot concerning the question of the recurrence of injury.

6. There seem to me to be some misapprehension by Mr O’Sullivan as to what the consequence of the Tribunal’s preliminary, construction ruling was, and also as to what the consequence of the primary judge’s decision was.

7. Counsel for the respondent concedes that the Tribunal proceeding commenced by Mr O’Sullivan remains on foot in the Tribunal, as unquestionably is the case.  Thus, the question that Mr O’Sullivan told me he wishes to pursue, namely, whether his August 2014 injury is a recurrence of the 1993 injury, may still be pursued by him in the Tribunal.

8. In these circumstances, having read closely the decision of the primary judge in O’Sullivan v P&O Maritime Pty Ltd [2017] FCA 47, I consider that there is no reason to doubt the correctness of the primary judge’s decision, and so the application of Mr O’Sullivan to extend the time to appeal should be dismissed with costs.

9. The appropriate orders are that:

   (1)The application be dismissed.

   (2)The applicant pay the respondent’s costs, to be assessed if not agreed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Associate:

Dated:        12 May 2017