Sims and Hayes (Compensation) - [2018] AATA 1634

Sims and Hayes (Compensation) [2018] AATA 1634 (25 May 2018)
Division:GENERAL DIVISION
File Number: 2016/2910
Re:Ryan Sims
APPLICANT

AndDimity Hayes
RESPONDENT

DECISION
Tribunal:Deputy President K Bean
Date:25 May 2018
Place:Adelaide

The Tribunal has jurisdiction in this matter.
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Deputy President K Bean
CATCHWORDS
WORKERS’ COMPENSATION – Seafarers – Jurisdiction – Where applicant injured while working as a deckhand – Where on the relevant voyage the vessel departed from Robe and returned there – Where the catch from the relevant voyage was sold to purchasers that included interstate purchasers – Where the vessel was fishing pursuant to licences and quotas held by an interstate company – Whether the vessel was engaged in trade or commerce among the States – Identifying the proper respondent – The Tribunal has jurisdiction.
LEGISLATION
Seafarers Rehabilitation and Compensation Act 1992
CASES
Sims and Hayes [2018] AATA 869
REASONS FOR DECISION
Deputy President K Bean
25 May 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, I made a decision that, subject to one issue, the Tribunal had jurisdiction in this matter.[1] The outstanding issue was whether, at the relevant time, the Gabo Bay was engaged in “trade or commerce among the States” such as to bring Mr Sims’ injury within the terms of the Seafarers Act and enliven the Tribunal’s jurisdiction.
[1] Sims and Hayes [2018] AATA 869 (Sims and Hayes).
In my reasons, I indicated that I was inclined to the view that, at the relevant time, the Gabo Bay was engaged in trade or commerce among the States. However, as the material before me was limited, I decided I should give the parties a further opportunity to be heard and submit any additional material directed to this question before I made a final decision. I made directions which established a timetable for both parties to submit any further evidence and/or submissions.
In my reasons, I also explained the basis upon which I had formed a preliminary view that it appeared the Gabo Bay was engaged in interstate trade or commerce. The reasons for my opinion included the fact that the material before me suggested that in the relevant period, the Gabo Bay was fishing at the behest of and pursuant to licences and quotas held by a Victorian company, Pescatore Di Mare Pty Ltd (Pescatore). I observed in my reasons:
If indeed some or all of the relevant catch of the Gabo Bay was transported to Victoria by or on behalf of Pescatore, I consider that would provide a firm basis for a conclusion that the Gabo Bay was engaged in interstate trade or commerce at the relevant time. In any event,…

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 1634
Case: [2018] AATA 1634
Decision Date: 25 May 2018

CaseChat Overview and Summary

This matter concerned a claim for compensation by Mr Sims, a deckhand, under the Seafarers Rehabilitation and Compensation Act 1992, following an injury sustained in June 2014 while working on the vessel Gabo Bay. The primary issue before Deputy President K Bean of the Administrative Appeals Tribunal was whether the Gabo Bay was engaged in "trade or commerce among the States" at the time of Mr Sims' injury, which would establish the Tribunal's jurisdiction. The respondent argued that the vessel did not engage in interstate trade, asserting that the catch was sold locally and that the vessel remained within South Australian waters.

The Tribunal was required to determine if the activities of the Gabo Bay constituted interstate trade or commerce for the purposes of the Seafarers Act. This involved assessing whether the commercial arrangements and the movement of the vessel's catch established a connection to trade between Australian states. Additionally, the Tribunal needed to identify the proper respondent to the compensation claim, as there was a dispute regarding whether Mrs Dimity Hayes was the sole employer or if other individuals or entities were also involved.

Deputy President Bean reasoned that the Gabo Bay was engaged in interstate trade or commerce because it was fishing at the behest of and pursuant to licences and quotas held by a Victorian company, Pescatore Di Mare Pty Ltd, to whom the bulk of the catch was sold. The Tribunal found that this commercial arrangement, involving entities in different states and carried out across state borders, constituted trade or commerce "among the States," making the vessel an integral part of this interstate activity. The Tribunal also noted that the applicant provided evidence suggesting the vessel travelled east from Robe towards the Victorian border due to a gillnet ban, further supporting the conclusion of interstate movement.

Having considered the additional submissions and material, the Tribunal concluded that it was satisfied on the balance of probabilities that the Gabo Bay was engaged in trade or commerce among the States at the relevant time, thereby confirming its jurisdiction. The Tribunal also acknowledged that the issue of the proper respondent remained to be fully clarified, noting that further information was required to determine the applicant's employer.

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, I made a decision that, subject to one issue, the Tribunal had jurisdiction in this matter.[1] The outstanding issue was whether, at the relevant time, the Gabo Bay was engaged in “trade or commerce among the States” such as to bring Mr Sims’ injury within the terms of the Seafarers Act and enliven the Tribunal’s jurisdiction.[1] Sims and Hayes [2018] AATA 869 (Sims and Hayes). In my reasons, I indicated that I was inclined to the view that, at the relevant time, the Gabo Bay was engaged in trade or commerce among the States. However, as the material before me was limited, I decided I should give the parties a further opportunity to be heard and submit any additional material directed to this question before I made a final decision. I made directions which established a timetable for both parties to submit any further evidence and/or submissions. In my reasons, I also explained the basis upon which I had formed a preliminary view that it appeared the Gabo Bay was engaged in interstate trade or commerce. The reasons for my opinion included the fact that the material before me suggested that in the relevant period, the Gabo Bay was fishing at the behest of and pursuant to licences and quotas held by a Victorian company, Pescatore Di Mare Pty Ltd (Pescatore). I observed in my reasons:If indeed some or all of the relevant catch of the Gabo Bay was transported to Victoria by or on behalf of Pescatore, I consider that would provide a firm basis for a conclusion that the Gabo Bay was engaged in interstate trade or commerce at the relevant time. In any event, however, regardless of whether or in what circumstances her catch was taken across state borders, it appears the Gabo Bay was fishing in accordance with a commercial arrangement with a Victorian company, pursuant to which the Gabo Bay used the quotas and licence of that company, and sold most if not all of the resulting catch to that company. In my view the fact that this arrangement was made between entities in different States and carried out across State borders, has the result that it constituted trade or commerce “among the States”. Although the question is not free from doubt, given the Gabo Bay was an essential and integral part of the arrangement, in my view this probably also has the consequence that, at the time Mr Sims was injured, the Gabo Bay was engaged in trade or commerce “among the States”.[2][2] Ibid [38].FURTHER SUBMISSIONS AND EVIDENCE In response to my Direction that the respondent provide any further submissions or evidence, Mr Westley for the respondent provided a short email of 24 April 2018 in which he stated the following:The Respondent is unable to provide catch log and VMS tracking details as the fishing boat “Gabo Bay” has been sold and all of those records went with the Purchaser of that boat.AFMA would have a full catch log and VMS tracking record for the boat which would confirm the Gabo Bay did not leave South Australian waters whilst fishing on State and Commonwealth Licenses.At no time, whilst the Applicant was fishing on the Gabo Bay was that boat or the business involved in “trade or commerce” amongst the States. The catch was all sold locally.[3][3] Respondent’s submission dated 24 April 2018.

Evidence

Evidence Before The Court

In my reasons, I also explained the basis upon which I had formed a preliminary view that it appeared the Gabo Bay was engaged in interstate trade or commerce. The reasons for my opinion included the fact that the material before me suggested that in the relevant period, the Gabo Bay was fishing at the behest of and pursuant to licences and quotas held by a Victorian company, Pescatore Di Mare Pty Ltd (Pescatore). I observed in my reasons:If indeed some or all of the relevant catch of the Gabo Bay was transported to Victoria by or on behalf of Pescatore, I consider that would provide a firm basis for a conclusion that the Gabo Bay was engaged in interstate trade or commerce at the relevant time. In any event, however, regardless of whether or in what circumstances her catch was taken across state borders, it appears the Gabo Bay was fishing in accordance with a commercial arrangement with a Victorian company, pursuant to which the Gabo Bay used the quotas and licence of that company, and sold most if not all of the resulting catch to that company. In my view the fact that this arrangement was made between entities in different States and carried out across State borders, has the result that it constituted trade or commerce “among the States”. Although the question is not free from doubt, given the Gabo Bay was an essential and integral part of the arrangement, in my view this probably also has the consequence that, at the time Mr Sims was injured, the Gabo Bay was engaged in trade or commerce “among the States”.[2][2] Ibid [38].FURTHER SUBMISSIONS AND EVIDENCE In response to my Direction that the respondent provide any further submissions or evidence, Mr Westley for the respondent provided a short email of 24 April 2018 in which he stated the following:The Respondent is unable to provide catch log and VMS tracking details as the fishing boat “Gabo Bay” has been sold and all of those records went with the Purchaser of that boat.AFMA would have a full catch log and VMS tracking record for the boat which would confirm the Gabo Bay did not leave South Australian waters whilst fishing on State and Commonwealth Licenses.At no time, whilst the Applicant was fishing on the Gabo Bay was that boat or the business involved in “trade or commerce” amongst the States. The catch was all sold locally.[3][3] Respondent’s submission dated 24 April 2018. In accordance with the timetable, the applicant provided more detailed submissions, in which it was noted that:4.Mr Westley did not deny or reject the following matters referred to in the Interlocutory Decision:4.1It appears that Gabo Bay was fishing at the behest and on behalf of Pescatore (paragraph 37 of the Interlocutory Decision);4.2The Gabo Bay was fishing in accordance with a commercial arrangement with a Victorian company, being Pescatore, pursuant to which Gabo Bay used the quotas and licence of Pescatore (paragraph 38 of the Interlocutory Decision);4.3Gabo Bay sold most if not all of the resulting catch to Pescatore (paragraph 38 of the Interlocutory Decision).[4][4] Applicant’s further submissions received 10 May 2018.

Decision

Reasons for decision

The applicant has also responded to Mr Westley’s assertion in an email of 26 June 2017 that the applicant travelled between Robe and the Coorong during his trips on the Gabo Bay. In response, the applicant has submitted that:at the relevant times in 2014, there was a ban on using gillnets in the waters between Robe and the Coorong. The Gabo Bay, during the trips the applicant was on, used a gillnet. Therefore the Gabo Bay, in relation to the trips the applicant was on, travelled east from Robe towards the Victorian border.[7]In support of this contention, the applicant has provided a copy of AFMA’s “Dolphin Strategy” document dated September 2014, which refers to the gillnet ban, and also confirms that the gillnet ban was in place between September 2011 and September 2014.[7] Ibid [8.1].CONCLUSION Having regard to the additional submissions and material provided by the parties, in particular the applicant, I have concluded I am satisfied on balance that at the relevant time the Gabo Bay was engaged in trade or commerce “among the States” and that the Tribunal therefore has jurisdiction in this matter. I base that conclusion in particular on the material before me which suggests that, at the relevant time, the Gabo Bay was fishing at the behest of and pursuant to licences and quotas held by a Victorian company, Pescatore, to whom the bulk or all of the relevant catch was sold. I note that this decision cannot itself confer jurisdiction on the Tribunal. Accordingly, if, subsequent to my decision, further information comes to hand or further submissions are made which call the Tribunal’s jurisdiction into question, the Tribunal will be entitled and indeed obliged to revisit the issue of jurisdiction.THE PROPER RESPONDENT As alluded to in my previous reasons, there is also an issue between the parties as to the proper respondent.[8][8] Sims and Hayes [11]. Mr Westley has briefly addressed this issue in a separate email of 24 April 2018, asserting that, “[a]t all times during, prior to and subsequent to the employment of the Applicant, Mrs Dimity Hayes conducted the fishing business, as is supported by her ABN and Tax Returns”. Mr Westley acknowledged that at the relevant time, the Gabo Bay was owned by the Hayes Children Family Trust, but contended that “the business of fishing was conducted by Mrs Hayes”. On the other hand, the applicant’s submissions have addressed this issue in some detail, conceding that there is information available which would support a conclusion that Mrs Dimity Hayes, the current respondent, was the sole employer of the applicant. However the applicant further contends there is also information available which would support a conclusion that both Dimity and Andrew Hayes were jointly the employers of the applicant, or alternatively that Andrew Hayes’ brother, John Hayes, may also have been an employer of the applicant. The applicant has provided additional information in this regard which the respondent has not yet addressed or been heard in relation to. The applicant has also pointed out that it would be desirable for this issue to be clarified as soon as possible, given that the question of the proper employer may in turn have implications for the question of whether or not a “default event” has occurred, with the result that the “Seafarers Safety Net Fund” is taken to have been the applicant’s employer.[9][9] Applicant’s further submissions [13]; s 4(3) of the Seafarers Act.

Ratio Decidendi

Legal Principle Established

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