Perry and ASP Ship Management Pty Ltd (Practice and procedure) [2025] ARTA 642 (23 April 2025)
Applicant/s: David Perry
Respondent: ASP Ship Management Pty Ltd
Tribunal Number: 2024/2518
Tribunal:General Member M. Carey
Place:Melbourne
Date:23 April 2025
Decision:The motion to dismiss the proceedings in matter number 2024/2518 pursuant to section 97 of the Administrative Review Tribunal 2024 (Cth) (ART Act) is denied.
The Tribunal directs that the respondent shall, within 28 days of the receipt of this decision, give to the Tribunal and a copy to the applicant, all documents in the possession or under the control of the decision-maker relevant to the review of the decision pursuant to section 23 of the ART Act.
....................[SGD]....................................................
General Member M. Carey
Catchwords
JURISDICTION – whether decision reviewable – power to dismiss on grounds decision not reviewable – time limit for determining claim relating to incapacity for work, cost of medical treatment – absence of relevant notices of employer seeking information or other documents – absence of relevant notices to Authority to extend period – deemed disallowance of claim – written request for reconsideration following deemed disallowance – implicit rejection of claim following request for reconsideration – whether implicit rejection was reviewable decision
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Seafarers Rehabilitation and Compensation Act 1992 (Cth)
Cases
Irwin v Military Rehabilitation and Compensation Commission (2009) 174 FCR 574
Telstra Corporation Ltd v Kotevski (2013) 209 FCR 558
Perry and Go Marine Group Pty Ltd [2021] AATA 830
Perry and Go Marine Group Pty Ltd [2023] AATA 4214Statement of Reasons
Mr David Perry made a claim for compensation on 30 January 2024 pursuant to the Seafarers Rehabilitation and Compensation Act 1992 (Seafarers Act).
In his claim form he stated he was employed by ASP Ship Management as an Integrated Rating.
The claim was in respect of an injury to the applicant as employee that resulted in incapacitation for work and the cost of medical treatment for that injury. In the claim form, Mr Perry stated that he suffered injury in 1995, with no more specific date. He stated that he reported it to the ‘Captain/Mate’. The injury is described as ‘Post-traumatic osteo arthritis’ affecting the right knee, He stated that he ‘slipped on water’ in the alleyway while ‘walking in accommodation’. He stated that he was signed off the ship as a result of the injury. He said: ‘I had a knee reconstruction and cartilage repaired it has now turned to arthritis’.
Mr Perry also advised that he did notice the injury now claimed in 2010 when working for Go Marine Group because he could not straighten the right knee and it hurt when walking up and down stairs. He did make a claim for compensation and saw a Dr Greg Gillett for the condition.
A medical certificate completed on 17 January 2024 by Dr Tarsem Madhar of the Cornwall Street Medical Centre in Woolloongabba that was apparently attached to the claim form stated:
THIS IS TO CERTIFY…
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- Case
- [2025] ARTA 642
- Decision Date
CaseChat Overview and Summary
The court found that the Tribunal had correctly interpreted the statutory provisions. A "reviewable decision" under section 78 of the Seafarers Act includes decisions made by an employer regarding liability for a claim, but not internal processes or decisions related to the reconsideration request itself. The deemed disallowance of the claim and the implicit rejection of the reconsideration request were not final decisions regarding liability but rather procedural steps in the reconsideration process. Therefore, they did not constitute "reviewable decisions" that could be appealed to the ART. The court upheld the Tribunal's conclusion that these decisions were not reviewable and dismissed the appeal.
In summary, the court affirmed that certain internal employer actions in the reconsideration process, such as a deemed disallowance of a claim and an implicit rejection of a reconsideration request, do not amount to reviewable decisions under the Seafarers Act. These findings clarify the scope of what can be appealed to the ART and reinforce the distinction between procedural steps and final decisions regarding liability.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
A decision, or deemed decision, to refuse to accept a liability must be reviewed internally by an employer. A reconsideration of an adverse determination must, by section 78 of the Seafarers Act be made in writing, setting out the reasons for the request and given to the employer within 30 days on which the decision came to the notice of the claimant or such other period as the employer allows. Section 79 of the Seafarers Act provides a time limit within which the employer must conduct its reconsideration:79 Time limit for reconsideration of determinations (1) If a claimant requests an employer to reconsider a determination made by the employer, the employer must reconsider the determination before the later of the following times: (a) the end of the period of 60 days after the employer receives the request; (b) if, at the written request of the employer, the Authority, by written notice served on the employer, allows a further period or further periods for the determination of the liability—the end of that period or those periods, as the case may be.(2) If the employer, by notice under section 83 given to the claimant within the period referred to in paragraph (1)(a) (or, if that period has been increased under subsection (3), within that period as so increased), requests the claimant to give information or a document or a copy of a document, or an authority to obtain information or a document or a copy of a document, that period is increased or further increased, as the case may be, by the number of days occurring after the day on which the request was made and before the day on which the employer receives the information, the document or copy of the document or the authority, as the case may be.(3) If the employer, by notice under section 83A given to the claimant within the period referred to in paragraph (1)(a) (or, if that period has been previously increased under subsection (2), within that period as so previously increased), requires the employee to undergo an examination by a medical practitioner and requires the claimant to give the employer the report by the medical practitioner of the results of the examination, that period is increased, or that period as so previously increased is further increased, as the case may be, by the number of days occurring after the day on which the request was made and before the day on which the employer receives the report.(4) A request under paragraph (1)(b) must state fully and in detail the circumstances concerning, and the reasons for, the employer’s request for the Authority to allow a longer period.(5) A notice under paragraph (1)(b) does not have any effect unless it is served on the employer before the end of the period by which, apart from the notice, the employer would be required to reconsider the determination (including any period previously allowed under that paragraph).(6) If the employer has not determined the claim by the end of the period allowed by this section, the employer is taken to have made a decision, at the end of that period, disallowing the claim.