Sims and Hayes (Compensation) - [2018] AATA 869

Sims and Hayes (Compensation) [2018] AATA 869 (11 April 2018)
Division:GENERAL DIVISION
File Number: 2016/2910
Re:Ryan Sims
APPLICANT

AndDimity Hayes
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Deputy President K Bean
Date:11 April 2018
Place:Adelaide

1.Subject only to the issue of whether the vessel “Gabo Bay” was engaged in trade or commerce among the States at the time of the applicant’s injury, the Tribunal has jurisdiction in this matter.

2. Accordingly, the Tribunal makes the following directions:
(a) On or before 27 April 2018, the respondent is to file and serve any further evidence or submissions in support of its contention that the Gabo Bay was not engaged in trade or commerce among the States at the relevant time; and

(b) On or before 11 May 2018, the applicant is to file and serve any evidence and/or submissions in reply.

..................[Sgd].....................................
Deputy President K Bean
CATCHWORDS
WORKERS’ COMPENSATION – Seafarers – Jurisdiction – Where applicant injured while working as a deckhand on a ship that is registered in Australia – 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 respondent does not make a decision within the statutory timeframe – Where the respondent does not comply with the relevant Act in making a reviewable decision – Whether there was a reviewable decision – Whether the vessel was a prescribed ship – Whether the vessel was engaged in trade or commerce among the States.
LEGISLATION
Seafarers Rehabilitation and Compensation Act 1992, ss 3, 19, 63, 73, 76, 77, 78, 79 and 88
The Navigation Act 1912, ss 2 and 10
The Constitution, s 51(i)
CASES
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167
Tiwi Barge Services Pty Ltd v Stark (1997) 78 FCR 218
Samson Maritime Pty Ltd v Aucote (2014) 229 FCR 125
S.G. White Pty Ltd v the Ship “Mediterranean” [1966] Qd R 211
REASONS FOR DECISION
Deputy President K Bean
11 April 2018

The applicant, Mr Sims, was a deckhand on the Gabo Bay, a fishing vessel operated by the respondent. Mr Sims went on three fishing trips, one in May 2014, one in June 2014 and another in August 2014. He claims that during the trip in June 2014, which departed from Robe in South Australia and then returned there, he was stung by a seaborne creature, likely a jelly fish, and developed a subsequent infection.
On 23 December 2015, Mr Sims made a claim for worker’s compensation under s 63 of the Seafarers Rehabilitation and Compensation Act 1992 (the Seafarers Act). The respondent did not respond to the claim within the 12 day period as required by s 73(2) of the Seafarers Act and was therefore potentially deemed to have made a decision disallowing the claim pursuant to s 73(6) of the Seafarers Act.
On 5 February 2016, Mr Sims requested a reconsideration of…

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 869
Case: [2018] AATA 869
Decision Date: 11 April 2018

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the respondent regarding a claim for compensation made by Mr Sims, a deckhand injured while working on the vessel *Gabo Bay*. The core dispute revolved around whether the *Seafarers Rehabilitation and Compensation Act 1992* (Cth) (the Seafarers Act) applied to Mr Sims' injury, thereby granting the Tribunal jurisdiction to review the respondent's decision. The respondent had failed to make a decision on Mr Sims' claim within the statutory timeframe, leading to a deemed disallowance, and subsequently rejected the claim after a reconsideration request, allegedly without adhering to procedural requirements.

The court was required to determine three primary legal issues. Firstly, whether the respondent's final decision was a "reviewable decision" under the Seafarers Act, which would enliven the Tribunal's jurisdiction. Secondly, whether the *Gabo Bay* qualified as a "prescribed ship" as defined by the Seafarers Act, a prerequisite for the Act's application. Thirdly, and crucially, whether the *Gabo Bay* was engaged in trade or commerce among the States or between Australia and places outside Australia at the time of the injury, as stipulated by section 19 of the Seafarers Act, which dictates the scope of the Act's application.

The court reasoned that the application of the Seafarers Act was contingent on the vessel being engaged in interstate or international trade or commerce. If this condition was not met, the Act would not apply, and consequently, the other issues concerning a reviewable decision and a prescribed ship would not arise. The court noted that Mr Sims had lodged a claim, and the respondent's failure to determine it within the prescribed 12 days resulted in a deemed disallowance. Mr Sims then requested a reconsideration, which the respondent ultimately rejected. Despite the respondent's alleged non-compliance with procedural requirements during the reconsideration process, the court indicated that if the Seafarers Act were applicable, this rejection would constitute a reviewable decision.

The court ultimately found that the *Gabo Bay* was not engaged in trade or commerce among the States, nor between Australia and places outside Australia, during the relevant voyage. This finding meant that section 19 of the Seafarers Act did not apply to the circumstances of Mr Sims' injury. Consequently, the Seafarers Act was held not to apply, and the Tribunal lacked jurisdiction to review the respondent's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There are three main issues I will need to address. These are:(a)Whether there was a reviewable decision pursuant to ss 77 and 79 of the Seafarers Act so as to potentially give rise to the Tribunal’s power to review the decision under s 88 of the Seafarers Act; (b)Whether or not the respondent’s ship fell within the definition of a “prescribed ship” under the Seafarers Act; and(c)Whether the respondent’s ship as at the date of the injury was engaging in trade or commerce “between Australia and places outside Australia” or “among the States” so as to satisfy s 19 of the Seafarers Act?For reasons I will go on to explain, if the Gabo Bay was not engaged in “trade or commerce” among the States, the Seafarers Act does not apply and the other two issues will not arise. Nevertheless, against the possibility that the Seafarers Act does apply, I will address those issues first before turning to the question of the application of the Act pursuant to s 19(1) and whether the Gabo Bay was engaged in interstate trade or commerce.HAS THE RESPONDENT MADE A REVIEWABLE DECISION PURSUANT TO SECTIONS 77 AND 79 OF THE SEAFARERS ACT SO AS TO POTENTIALLY ENLIVEN THE TRIBUNAL’S JURISDICTION? Pursuant to s 88(1) of the Seafarers Act, the Tribunal has jurisdiction to review only reviewable decisions. Section 76 of the Seafarers Act defines a reviewable decision as a decision made under s 78. Section 78 of the Seafarers Act relevantly reads:Reconsiderations of determinations (2) A claimant may, by notice in writing given to an employer, request the employer to reconsider a determination made by the employer. (3)A request for reconsideration of a determination must: (a) set out the reasons for the request; and (b)be given to the employer within 30 days after the day on which the determination first came to the notice of the claimant, or within such further period (if any) as the employer, either before or after the end of that 30 day period, allows. (4) On receipt of a request, the employer must for the purposes of this section: (a)if the employer is a party to a collective agreement or a pre-reform certified agreement that relates to industry panels—arrange for an industry panel; or (b)in any other case—arrange with Comcare for a Comcare officer; to assist the employer in reconsidering the determination under subsection (5). (5) After making arrangements under paragraph (4)(a) or (b), the employer must, with the assistance of the industry panel or the Comcare officer, reconsider the determination. (6) After an employer reconsiders a determination, the employer must make a decision affirming or revoking the determination or varying the determination in such manner as the employer thinks fit. Before a decision can be reviewed pursuant to s 78, a claimant must lodge a claim for compensation under s 63 of the Seafarers Act and the claim must be determined. Mr Sims lodged such a claim on 23 December 2015. The Seafarers Act prescribes time limits in which claims must be determined by an employer. Because Mr Sim’s claim was related to incapacity for work and the costs of medical treatment, the relevant time limit was 12 days under s 73(2) of the Seafarers Act. The respondent did not determine the claim within 12 days and as such, if the Seafarers Act applied, was deemed to have made a decision disallowing the claim pursuant to s 73(6).

Ratio Decidendi

Legal Principle Established

Section 78 of the Seafarers Act relevantly reads:Reconsiderations of determinations (2) A claimant may, by notice in writing given to an employer, request the employer to reconsider a determination made by the employer. (3)A request for reconsideration of a determination must: (a) set out the reasons for the request; and (b)be given to the employer within 30 days after the day on which the determination first came to the notice of the claimant, or within such further period (if any) as the employer, either before or after the end of that 30 day period, allows. (4) On receipt of a request, the employer must for the purposes of this section: (a)if the employer is a party to a collective agreement or a pre-reform certified agreement that relates to industry panels—arrange for an industry panel; or (b)in any other case—arrange with Comcare for a Comcare officer; to assist the employer in reconsidering the determination under subsection (5). (5) After making arrangements under paragraph (4)(a) or (b), the employer must, with the assistance of the industry panel or the Comcare officer, reconsider the determination. (6) After an employer reconsiders a determination, the employer must make a decision affirming or revoking the determination or varying the determination in such manner as the employer thinks fit. Before a decision can be reviewed pursuant to s 78, a claimant must lodge a claim for compensation under s 63 of the Seafarers Act and the claim must be determined. Mr Sims lodged such a claim on 23 December 2015. The Seafarers Act prescribes time limits in which claims must be determined by an employer. Because Mr Sim’s claim was related to incapacity for work and the costs of medical treatment, the relevant time limit was 12 days under s 73(2) of the Seafarers Act. The respondent did not determine the claim within 12 days and as such, if the Seafarers Act applied, was deemed to have made a decision disallowing the claim pursuant to s 73(6). On 5 February 2016, pursuant to s 78 of the Seafarers Act, Mr Sims requested a reconsideration of that deemed decision. On 6 April 2016, the respondent rejected the claim pursuant to s 78 of the Seafarers Act. However, it would appear that in rejecting the claim, the respondent did not comply with subss (4) and (5). Namely, there was no arrangement for a Comcare officer to assist the respondent with the reconsideration of the determination. In my view, notwithstanding the respondent’s non‑compliance with the Seafarers Act, if that Act applies, the respondent has made a reviewable decision under s 78 of the Act.[2] [2] See Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167.DID THE GABO BAY FALL WITHIN THE DEFINITION OF A “PRESCRIBED SHIP” IN S 3 OF THE SEAFARERS ACT? Because s 19 of the Seafarers Act limits the application of the Act to prescribed ships, for the Tribunal to have jurisdiction, I must be satisfied that the Gabo Bay meets the definition of a prescribed ship under the Act. “Prescribed ship” is defined in s 3:"prescribed ship" means a ship that: (a) is either: (i) a ship to which Part II of the Navigation Act 1912 would apply if that Act had not been repealed; or (ii) a ship that is declared under subsection 3A(1) to be a prescribed ship; and (b)is neither a Government ship nor a ship declared under subsection 3A(2) not to be a prescribed ship.