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

1. 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

2. 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.

3. 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; …

4. In this case, the person who made the decision is the employer. The issue for the Tribunal is to determine who is the employer.

5. 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”.

6. There is a reference to “A and D Hayes” in purchase orders from Pescatore Di Mare Pty Ltd. These purchase orders related to purchases from the business solely operated by Dimity Hayes and I do not consider that the reference in them to “A and D Hayes” is material when considering who the employer of the applicant was.

7. It is noted that the vessel Gabo Bay was owned by Andrew and John Hayes as trustees of the Hayes Children’s Family Trust. Section 53(1)(d)(i) of the Seafarers Act provides that a reference to an employer includes a reference to a person who owns the prescribed ship. This provision does not operate as a deeming provision so as to extend the meaning of the word “employer” to the owners of the vessel Gabo Bay. I quote from Lord Selborne LC in Robinson v Local Board of Barton-Eccles:

   An interpretation clause of this kind [one which uses the word ‘includes’] is not meant to prevent the word receiving its ordinary, popular and natural sense whenever that would be properly applicable; but to enable the word as used in the Act, when there is nothing in the context or the subject matter to the contrary, to be applied to some things to which it would not ordinarily be applicable.[3]

   [3]     Robinson v Local Board of Barton-Eccles (1883) 8 App Cas 798, 801; see also Barwick CJ in Favelle Mort Ltd v Murray (1976) 133 CLR 580, 589.

8. For the above reasons, I conclude that Dimity Hayes on her own was the employer of the applicant and is accordingly the proper respondent to be named in this action. Accordingly, I direct that Andrew Hayes be removed as a respondent to this action.

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten‑Jones

............... [Sgd] .........................................

Associate

Dated: 27 July 2018

Date of hearing:	19 July 2018
Applicant:	Mr C Moran Griffins Lawyers
Solicitors for the Respondent:	Mr P Westley Westley DiGorgio Norcock