Perry and ASP Ship Management Pty Ltd (Practice and procedure) - [2025] ARTA 642

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 4214
Statement 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…

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: [2025] ARTA 642
Decision Date: 23 April 2025

CaseChat Overview and Summary

This case concerns an appeal by Mr Perry against a decision of the Administrative Review Tribunal (ART) regarding the reviewability of certain employer actions in relation to a workers compensation claim. The Tribunal found that certain decisions made by ASP Ship Management, including a deemed disallowance of a claim and an implicit rejection of a request for reconsideration, were not reviewable under the Seafarers Act. The primary legal issue before the court was whether the Tribunal correctly determined that these decisions were not reviewable under the Act. The court considered the definitions and provisions of the Seafarers Act and the Administrative Review Tribunal Act regarding what constitutes a "reviewable decision" and the process for reconsideration of employer determinations.

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

The provisions of sections 83 and 83A of the Seafarers Act are references to written notices to the claimant (1) to provide information or a document or copy of a document relevant to the claim where it is relevant to the claim (providing the employer is satisfied that the claimant has such information or document) and (2) to undergo one, and only one, medical examination at the employer’s expense and the report provided to the employer of the results of the examination.Background Mr Perry is a 59 year old resident of Carina in the State of Queensland. No Tribunal documents have been provided to the Tribunal in respect of the application. The information contained in the medical certificate referred to above of Dr Tarsem Madhar dated 17 January 2024 concerning a ‘recent Administrative Appeals Tribunal’ would likely be a reference to the decision of Senior Member Bellamy on 20 December 2023 reported as Perry and Go Marine Group Pty Ltd [2023] AATA 4214. I note that there was a prior Tribunal decision made on 9 April 2021 by Deputy President Sosso in relation to left knee injuries sustained in 2010 and reported as Perry and Go Marine Group Pty Ltd [2021] AATA 830. That decision also made references to the history of a right knee injury on 8 March 1995 while employed by ASP Ship Management as an Integrated Rating on the ‘CSL Innovator’ which transported sugar from Australia to Indonesia.[1][1] [2021] AATA 830 [4] From the decision of Senior Member Bellamy dated 20 December 2023, the following background history may be accepted:(a)Mr Perry was employed by ASP Ship Management when ‘on 8 March 1995 … he slipped on a wet surface and his right knee twisted and gave way’. The Tribunal accepted that there was no evidence that he had any problem with his right knee before that incident. (b)The Tribunal then recounted the following medical treatment immediately after the injury:23.Mr Perry was examined by Dr Greg Gillett, Orthopaedic Surgeon. Dr Gillet performed a medial meniscectomy for a displaced bucket handle tear. He wrote a report on the day of the operation, 11 April 1995, to Mr Perry’s treating General Practitioner. In that report, he said: “I have arthroscoped David’s knee today. The findings were that he had a displaced bucket handled tear of his medial meniscus. The medial collateral ligament is stable. The anterior cruciate ligament clinically reveals one plus drawer and a negative pivot shift but it is ruptured on the arthroscopic examination. The lateral side is normal and the patello-femoral joint is normal.The displaced bucket handle has been arthroscopically excised.He will now undertake a rehabilitation programme and in the longer term may require a cruciate ligament reconstruction but I would be optimistic that he won’t and he will do well with an exercise programme.”24.A few months after the medial meniscectomy, Mr Perry had an anterior cruciate ligament reconstruction. According to Mr Perry, he had nine months off work before returning as a full-time Integrated Rating. There is some evidence of ongoing symptoms in his right knee.(c)In 2010 Mr Perry suffered a further injury to his right knee while employed by Go Marine Group Pty Ltd on the ship ‘Miclyn Endurance’.(d)He lodged a further workers compensation claim on Go Marine and liability was accepted for a “temporary aggravation” of his “right knee degenerative condition”.(e)Mr Perry was examined at his employer’s request by Dr Peter Steadman, an orthopaedic surgeon on 11 December 2012 and a report of 18 December 2012 was produced and that report and a supplementary report of April 2023 formed a significant position in the ultimate decision of the Tribunal on 20 December 2023. The Tribunal made extensive reference to findings and conclusions expressed in those reports:39.Dr Steadman opined that Mr Perry was suffering from right knee osteoarthritis and that his history of right knee problems was related to his 1995 injury. Specifically, he said:“Mr Perry has ongoing pain and discomfort but the work related condition has not substantially altered the course of his right knee problem. He has been on a gentle slide of constitutional degeneration following the injury of 1995.”40.Dr Steadman concluded that Mr Perry had experienced a progressive problem in his knee following the injury in 1995 and that the injury on 14 November 2010 was “in essence a short term aggravation of the longer term problem”. He thought the aggravation had passed but that “his main claim for the knee problem lies in the injury of 1995.” Professor Steadman thought Mr Perry was, at that time, only capable of undertaking sedentary work, taking into account his obesity and the knee problems. He did not think any additional treatment was likely to be of value, although repeated Synvlsc injections could be of some benefit. He recommended weight loss would as the main strategy, saying that if Mr Perry could lose 50 kilograms his knee pain would go away.…48.Professor Steadman did not think it likely that the 2010 injury was not substantial enough to alter the course of the underlying osteoarthritis when all factors were considered. He opined that the effect of the 2010 injury as a contributing factor would have ceased shortly after the incident – around four to six weeks. Professor Steadman pointed to the evidence in Dr Cooke’s 2011 report and the MRI which indicated that there was no material change in Mr Perry’s right knee following the 2010 injury. 49.Relevant to that, when asked to identify the physiological impact of the 2010 injury, i.e. how it had aggravated the underlying condition, Professor Steadman gave a somewhat speculative answer. He said it could have been a soft tissue injury or something to that effect that caused some inflammation that led to pain and swelling in the knee. He clarified that the arthritis itself was not an injury but a process, and that if it were to be represented graphically, there was a gentle slope of downward deterioration from 1995 through to the present day, but in 2010 there might be a little (downward) spike when the knee became sore after the injury. He said an aggravation involving soft tissue will pass after about four to six weeks, and then the gradual decline will resume. 50.Professor Steadman considered that Mr Perry was only fit for sedentary work and that his incapacity for other work was due to morbid obesity, right knee osteoarthritis and left knee osteoarthritis. He attributed 25% of Mr Perry’s current condition to the 1995 injury and 75% to constitutional morbid obesity comorbidity factors. 51.In his oral evidence, Professor Steadman explained that although people have an ACL reconstruction to prevent arthritis, depending on the severity of the injury that caused the ACL disruption, a significant proportion of people go on to get arthritis. He said the X-rays showed quite an acceleration of Mr Perry’s arthritis in the last five years, and that it is now quite severe and looking very worn out. Professor Steadman pointed out that the arthritis in Mr Perry’s right knee is not localised – it affects the whole knee – and that is consistent with the 1995 injury and its consequences.(f)Senior Member Bellamy affirmed the Go Marine decision to cease liability on the conclusion that the effects of the 2010 injury probably ceased after a few months and had not continued by June 2012, the date from which Mr Perry was then seeking benefits. The conclusion was expressed after accepting medical evidence going to the relative weight to be placed in the 2010 injury compared to the 1995 injury:59.I find it significant that according to Professor Steadman, the arthritis in Mr Perry’s right knee is not localised and that is consistent with the condition arising from the 1995 injury. I also find it significant that Mr Perry was already experiencing some pain and limitation of movement prior to the injury. According to Professor Steadman, a major contributing factor to Mr Perry’s right knee condition is excess weight, and that was the case when he saw him in 2012. I accept his expert opinion about that. 60.In 2018, Dr Crichton thought Mr Perry was unfit for work due to “prior work related meniscus and ACL injuries requiring surgery” which is a reference to the 1995 injury and subsequent condition. The 2022 medical certificate also refers to “prior work related meniscal and ACL injuries requiring surgery”. Mr Perry himself gave evidence that his current condition was due to the 1995 injury although he also said the 2010 injury aggravated it and pointed out that it was this injury that stopped him working.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The word ‘decision’ is defined in section 4 of the ART Act:decision includes the following:(a) making, suspending, revoking or refusing to make an order or determination;(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;(d) imposing a condition or restriction;(e) making a declaration, demand or requirement;(f) retaining, or refusing to deliver up, an article;(g) doing or refusing to do any other act or thing. By section 88 of the Seafarers Act, a claimant may apply to the ART ‘for review of a reviewable decision’. The terms claimant, determination, reconsideration and reviewable decision are defined in section 76 of the Seafarers Act (Part 6 – Reconsideration of determinations and review of decisions by the Administrative Review Tribunal):(1) In this Part:ART Act means the Administrative Review Tribunal Act 2024.ART extension application means an application under section 19 of the ART Act that relates to a review of a reviewable decision or an extension of time decision.claimant means a person in respect of whom a determination is made.decision has the same meaning as in the ART Act.determination means a determination, decision or requirement made by the employer under section 13, 26, 27, 28, 29, 30, 31, 33, 34, 35, 36, 37, 39, 40, 41, 43, 43A, 44, 45, 49, 50, 51, 66 or 126.extension of time decision means a decision of the Authority under paragraph 72(1)(b), 73(2)(c) or 73A(1)(b).guidance and appeals panel has the same meaning as in the ART Act.guidance and appeals panel application has the same meaning as in the ART Act.reviewable decision means a decision made under section 78. By section 73 of the Seafarers Act, there is a time limit imposed on the employer within which to make a decision on liability in respect of claims relating to incapacity for work or medical treatment:73 Time limit for determining claims relating to incapacity for work, loss of or damage to property or cost of medical treatment(1) This section applies to a claim for compensation relating to:(a) an injury resulting in an employee being incapacitated for work; or(b) the loss of, or damage to, property used by an employee; or(c) the cost of medical treatment for an injury suffered by an employee.(2) The employee’s employer must determine its liability in relation to the claim by the latest of the following times:(a) the end of the period of 12 days after the day on which the employer receives the claim;(b) if the employer, by notice under section 67 given to the claimant within the period referred to in paragraph (a), 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—the end of the period of 12 days after the employer receives the information, the document or copy of the document or the authority, as the case may be;(c) 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.(3) A request under paragraph (2)(c) 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.(4) A notice under paragraph (2)(c) 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 determine the liability (including any period previously allowed under that paragraph).(5) If the claim is for compensation relating to an injury resulting in the employee being incapacitated for work, compensation is payable in respect of the claim for the incapacity from and including the day on which liability arose under section 31.(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.

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.