Sims and Hayes (Compensation) - [2018] AATA 2577

Sims and Hayes (Compensation) [2018] AATA 2577 (27 July 2018)
Division:GENERAL DIVISION
File Number(s): 2016/2910
Re:Ryan Sims
APPLICANT

AndDimity Hayes
RESPONDENT

DECISION
Tribunal:Deputy President P Britten-Jones
Date:27 July 2018
Place:Adelaide

The Tribunal directs that Andrew Hayes be removed as a respondent to this action.
..................[Sgd]..........................................
Deputy President P Britten-Jones
CATCHWORDS
WORKERS' COMPENSATION – Seafarers – Where applicant injured while working as a deckhand – Identifying the proper respondent – Definition of employer – Inclusive definition of employer is not a deeming provision.
LEGISLATION
Seafarers Rehabilitation and Compensation Act 1992, s 53
Administrative Appeals Tribunal Act 1975, s 30
CASES
Sims and Hayes (Compensation) [2018] AATA 869
Sims and Hayes (Compensation) [2018] AATA 1634
Robinson v Local Board of Barton-Eccles (1883) 8 App Cas 798
Favelle Mort Ltd v Murray (1976) 133 CLR 580
REASONS FOR DECISION
Deputy President P Britten-Jones
27 July 2018

This matter concerns a claim for compensation by the applicant, Mr Sims, under the Seafarers Rehabilitation and Compensation Act 1992 (the Seafarers Act) in relation to an injury he claims to have sustained in June 2014, while working as a deckhand on the vessel Gabo Bay, which was fishing off the coast of South Australia near Robe.
BACKGROUND
On 11 April 2018, Deputy President Bean made a decision that, subject to one issue, the Tribunal had jurisdiction in this matter.[1] On 25 May 2018, Deputy President Bean confirmed that the Tribunal has jurisdiction based upon a finding that the Gabo Bay was engaged in trade or commerce “among the States”.[2] In those reasons, Deputy President Bean referred to the issue between the parties as to the proper respondent. Since that hearing, a further Directions Hearing has been convened and the parties agreed that the Tribunal should determine this issue on the papers by reference to the further submissions of the applicant dated 10 May 2018 and the further submissions of the respondent dated 15 June 2018, together with the brief oral submissions made by the parties at the Directions Hearing held on 19 July 2018.
[1] Sims and Hayes (Compensation) [2018] AATA 869.
[2] Sims and Hayes (Compensation) [2018] AATA 1634.
In his application for review of decision filed on 31 May 2015, the applicant named Andrew and Dimity Hayes as the employer who made the decision to disallow his compensation claim under the Seafarers Act. However, the application for review proceeded against only Dimity Hayes as the respondent. At the Directions Hearing on 19 July 2018, the solicitor for the named respondents, Andrew and Dimity Hayes, submitted that Dimity Hayes was the proper respondent and that Andrew Hayes should be removed. Section 30(1) of the Administrative Appeals Tribunal Act 1975 provides relevantly that the parties to a proceeding before the Tribunal for a review of a decision are:
(a)Any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision;
(b) A person who made the decision; …
In…

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.

Continue reading Sims and Hayes (Compensation)

Details

AGLC: Sims and Hayes (Compensation) [2018] AATA 2577
Case: [2018] AATA 2577
Decision Date: 27 July 2018

CaseChat Overview and Summary

This matter concerned a claim for compensation under the Seafarers Rehabilitation and Compensation Act 1992 by Mr Sims, a deckhand injured in June 2014 while working on the vessel Gabo Bay. The Administrative Appeals Tribunal was required to determine the proper respondent to the claim, specifically identifying the applicant's employer.

The central legal issue before the Tribunal was to ascertain who constituted the employer for the purposes of the Seafarers Act, given that the applicant had initially named both Andrew and Dimity Hayes as respondents, but the application for review proceeded against only Dimity Hayes. The Tribunal had previously confirmed its jurisdiction, finding the Gabo Bay was engaged in trade or commerce "among the States".

The Tribunal reasoned that the definition of "employer" within the Seafarers Act was inclusive and not a deeming provision. Applying this principle, the Tribunal considered evidence including the applicant's interactions, documentation such as a "staff details" form referring to "DJ Hayes Fishing", salary calculation documents bearing Dimity Hayes's Australian Business Number, and financial statements identifying Dimity Hayes as the operator of the fishing business. The Tribunal also noted that a chartered accountant's advice confirmed Dimity Hayes had ceased fishing operations in June 2015.

Based on this evidence, the Tribunal found that Dimity Hayes, operating as an individual, was the employer. Consequently, Andrew Hayes was to be removed as a respondent from the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

This matter concerns a claim for compensation by the applicant, Mr Sims, under the Seafarers Rehabilitation and Compensation Act 1992 (the Seafarers Act) in relation to an injury he claims to have sustained in June 2014, while working as a deckhand on the vessel Gabo Bay, which was fishing off the coast of South Australia near Robe.BACKGROUND On 11 April 2018, Deputy President Bean made a decision that, subject to one issue, the Tribunal had jurisdiction in this matter.[1] On 25 May 2018, Deputy President Bean confirmed that the Tribunal has jurisdiction based upon a finding that the Gabo Bay was engaged in trade or commerce “among the States”.[2] In those reasons, Deputy President Bean referred to the issue between the parties as to the proper respondent. Since that hearing, a further Directions Hearing has been convened and the parties agreed that the Tribunal should determine this issue on the papers by reference to the further submissions of the applicant dated 10 May 2018 and the further submissions of the respondent dated 15 June 2018, together with the brief oral submissions made by the parties at the Directions Hearing held on 19 July 2018.[1] Sims and Hayes (Compensation) [2018] AATA 869.[2] Sims and Hayes (Compensation) [2018] AATA 1634. In his application for review of decision filed on 31 May 2015, the applicant named Andrew and Dimity Hayes as the employer who made the decision to disallow his compensation claim under the Seafarers Act. However, the application for review proceeded against only Dimity Hayes as the respondent. At the Directions Hearing on 19 July 2018, the solicitor for the named respondents, Andrew and Dimity Hayes, submitted that Dimity Hayes was the proper respondent and that Andrew Hayes should be removed. Section 30(1) of the Administrative Appeals Tribunal Act 1975 provides relevantly that the parties to a proceeding before the Tribunal for a review of a decision are:(a)Any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision;(b) A person who made the decision; … In this case, the person who made the decision is the employer. The issue for the Tribunal is to determine who is the employer. I find that the evidence as follows supports the finding that Dimity Hayes on her own is the employer:(i)The applicant never met Andrew Hayes and only met Dimity Hayes. These meetings took place primarily when the applicant met Dimity Hayes after fishing trips when the catch was being weighed;(ii)When the applicant completed a “staff details” form, the business was referred to as “DJ Hayes Fishing”, which is a reference to Dimity Hayes and not Andrew Hayes;(iii)The salary calculation documents addressed to the applicant included an ABN number, which was an ABN number solely registered in the name of Dimity Hayes;(iv)The payments received by the applicant as remuneration were recorded as being made by Dimity Hayes;(v)The relevant financial statements for Dimity Hayes refer to her as being the entity running the fishing business and include a reference to the lease payments which were paid to Andrew Hayes and John Hayes as trustees of the Hayes Children’s Family Trust, which was the owner of the vessel Gabo Bay; and(vi)Rick Mencel, the chartered accountant for Dimity Hayes, wrote on 15 February 2017 that “Dimity Hayes finished fishing in June 2015 and the boat leased by her was sold in September 2015”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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