Smith and Captain Cook Cruises Pty Ltd

[2006] AATA 499

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 499

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/194

GENERAL ADMINISTRATIVE DIVISION		)
Re		RONALD SMITH

Applicant

And CAPTAIN COOK CRUISES PTY LTD

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date7 June 2006

PlaceBrisbane

Decision The Tribunal has jurisdiction to hear the application.

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

SENIOR MEMBER

CATCHWORDS

COMPENSATION – Seafarers – Jurisdiction – meaning of a prescribed ship – ship was registered in Australia during incident – ship was a prescribed ship – Tribunal has jurisdiction to hear the appeal

REASONS FOR DECISION

7 June 2006 Senior Member B J McCabe

introduction

1.      Mr Ronald Smith is the applicant in these proceedings. He claims he was injured in the course of his work as a crewmember of the MV Reef Escape. The vessel was operated by the respondent, Captain Cook Cruises Pty Ltd. Mr Smith lodged a claim for compensation with the respondent under the Seafarers Rehabilitation and Compensation Act 1992 (the Act). The respondent denies it is liable and has refused to compensate Mr Smith. Mr Smith now asks the Tribunal to review the decision (or deemed decision) to refuse his claim.

2.      The Tribunal must be satisfied it has jurisdiction to hear the claim before it can proceed. To that end, the Tribunal held a telephone hearing of jurisdiction on 3 May 2006 to ascertain whether there was a reviewable decision under the Act. The applicant represented himself at that hearing. Mr Haworth represented the respondent. As it happens, Mr Haworth has first hand knowledge of the applicant’s case: Mr Haworth was the master of the MV Reef Escape when the applicant says he was injured.

3.      For the reasons I will explain, I accept the MV Reef Escape is (or was at the relevant time) a vessel to which the Act applies. I am therefore satisfied the Tribunal has jurisdiction to hear the application.

the legislation

4.      The Act provides coverage to employees of a prescribed ship: s 19. Section 3 defines a prescribed ship to mean a ship to which Part II of the Navigation Act 1912 applies. That Act (under s 10(c)) says a prescribed ship is:

(a) a ship registered in Australia;

(b) a ship (other than a ship registered in Australia) engaged in coasting trade;

(c) a ship (other than a ship registered in Australia or engaged in coasting trade) of which the majority of the crew are residents of Australia…

5.      Did the MV Reef Escape satisfy that definition at the relevant time?

the facts

6.      Mr Smith seeks compensation for an injury which he says occurred on 27 April 1996. On his claim form dated 19 August 2005 he describes the nature of the injury as being “PTSD, insomnia, emotional blackmail, defamation, slander”. He says this occurred as a result of being thrown off the ship at 3am on the morning of 27 April 2006.

7.      The respondent provided the Tribunal with details of the registration of MV Reef Escape and the composition of the crew. The ship was operated in Australia and was subsequently transferred to Fiji for the purpose of running a commercial enterprise. Its crew was predominantly Fijian. However the registration of the ship was not transferred to Fiji until 12 June 1996. The Australian registration was closed on 16 May 1996.

8.      It follows that at the time of the incident the MV Reef Escape was still registered in Australia. As such it clearly comes within sub-paragraph (a) of the definition of a prescribed ship under the Navigation Act 1912. The Tribunal therefore has jurisdiction to hear the application.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

Signed:         .....................................................................................
  Associate      Adam Ryan

Date of Hearing  3 May 2006
Date of Decision  7 June 2006
The applicant appeared in person by telephone.
The respondent was represented by Captain Trevor Haworth by telephone.