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

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, 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).

3. 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.

4. 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

5. 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.

6. 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.

7. The applicant has also pointed to the fact the alleged injury in this matter occurred on or about 6 June 2014, and one of the relevant purchase orders issued by Pescatore recording fish purchased from the owner(s) of the Gabo Bay is dated 10 June 2014 “and therefore that record must relate to the trip during which the injury occurred”.[5] That document records the sale of a number of fish to Pescatore, together with payments to Pescatore for leases of various quotas.

   [5]     Ibid [5.2].

8. The applicant has also supplied additional documentation which suggests that the amount paid to the applicant by way of remuneration was a percentage of the amount paid by Pescatore for each catch. For instance, the material provided suggests that Pescatore paid a total of $8,564.98 for the relevant catch on 13 August 2014 and on 1 September 2014, Mr Sims was paid 9% of that amount, equating to $770.00. Likewise he appears to have been paid percentages of approximately 10%, or 8% of catches paid for by Pescatore on 10 June 2014, 14 May 2014 and 13 April 2014. If this is in fact what occurred, it strongly suggests that the whole of the catch of the Gabo Bay resulting from those voyages was sold to Pescatore.

9. The applicant has also provided a “current and historical company extract” from the Australian Securities and Investments Commission data base indicating that Pescatore Di Mare Pty Ltd was registered in Victoria on 16 March 2009 and remains registered. Its current registered address is in Melbourne and all of its historical addresses are in Victoria. The Director of the company has always been Anthony Michael Ciconte, who lives in Melbourne.

10. The applicant has accordingly submitted that:

    6.Based on this information, the applicant submits that the most likely (if not, the only reasonable) conclusion for the Tribunal to draw is that:

    6.1At the relevant times, the Gabo Bay was fishing at the behest and on behalf of Pescatore;

    6.2At the relevant times, the 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;

    6.3At the relevant times, the Gabo Bay sold most if not all of the resulting catch to Pescatore;

    6.4Therefore, at the relevant time, the Gabo Bay was engaged in trade or commerce “among the States”.[6]

    [6] Ibid [6].

11. In addition, the applicant has pointed out that documents held by the Australian Fisheries Management Authority (AFMA) are not public documents, and contended that it would be easier for the respondent to obtain these than the applicant.

12. 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

13. 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.

14. 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

15. 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].

16. 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”.

17. 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.

18. 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.

19. Given the relative complexity of this issue and the fact that the applicant has now put forward additional information which the respondent has not had an opportunity to answer, I have determined that, before the Tribunal reaches a conclusion on this issue, a further telephone directions hearing should be convened. This will provide an opportunity to canvass what the respondent’s current position is with respect to this issue, whether the respondent seeks a further opportunity to be heard in relation to it, and whether a further preliminary hearing is required for this purpose.

    DECISION

20. The Tribunal has jurisdiction in this matter.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

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Associate

Dated: 25 May 2018

Dates of hearing:	5 and 14 June 2017
Date final submissions received:	10 May 2018
Solicitors for the Applicant:	Ms A Kellett Griffins Lawyers
Solicitors for the Respondent:	Mr P Westley Westley DiGiorgio