Stanley Jones and Svitzer Offshore Pty Ltd
[2014] AATA 902
•5 December 2014
[2014] AATA 902
Division General Administrative Division File Number
2013/6259
Re
Stanley Jones
APPLICANT
And
Svitzer Offshore Pty Ltd
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 5 December 2014 Place Perth The decision under review is set aside and the matter is remitted to the respondent for reconsideration in accordance with the direction that the respondent treat the applicant’s request, given on 23 September 2013, for a reconsideration of the respondent’s determination of 26 November 2008 as a request made in accordance with s 78(3) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“SRC Act”).
Pursuant to s 92(2) of the SRC Act, the Tribunal orders that the costs of these proceedings incurred by the applicant be paid by the respondent in accordance with Section 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction (September 2013).
..............................[sgd]..........................................
S D Hotop
Deputy President
CATCHWORDS
COMPENSATION – seafarers – extension of time for requesting reconsideration of determination – respondent accepted applicant's claim for compensation for injury suffered in 2003 – respondent made determination in 2008 ceasing incapacity payments - applicant requested reconsideration of determination in 2013 – respondent taken to have refused request for reconsideration – applicant gave acceptable explanation for delay – applicant did not rest on rights – applicant's request for reconsideration meritorious – Tribunal not satisfied that significant prejudice would be caused to respondent by grant of extension of time – fair and equitable to grant required extension of time for requesting reconsideration – decision under review set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 3(3)
Seafarers Rehabilitation and Compensation Act 1992 (Cth), s 3, s 31, s 32, s 76, s 77, s 78, s 79 and s 88
CASES
A’Hearn v Comcare (1993) 18 AAR 22
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Comcarev A’Hearn (1993) 45 FCR 441
Comcare v Willems (1996) 70 FCR 244Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
REASONS FOR DECISION
Deputy President S D Hotop
5 December 2014
Introduction
Stanley Jones (“the applicant”) has applied to the Tribunal for review of a deemed reviewable decision made on behalf of the respondent under s 78 of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“SRC Act”) whereby a request by the applicant, dated 4 September 2013, for a reconsideration of a determination made on behalf of the respondent under the SRC Act on 26 November 2008, was taken to be refused.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T69, pp 1-193) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·witness statement of the applicant, dated 10 February 2014 (including Attachments SWJ1–SWJ20) (Exhibit A1);
·affidavit of John Gaetano Mario Fiocco sworn on 24 October 2014 (including Attachments JF1–JF9) (Exhibit A2);
·Labour Market Assessment Report of Michelle Woolerson, Advance Personnel Management, dated 11 July 2014 (Exhibit R1);
·supplementary report of Candice Sparre, Advanced Personnel Management, dated 25 August 2014, together with letter from respondent’s solicitors, dated 14 August 2014, requesting supplementary report (Exhibit R2); and
·the oral evidence of the applicant.
The Relevant Factual Background
The following background facts are found by the Tribunal on the basis of the T Documents and Exhibit A2.
The applicant, who was born in June 1948, was at all material times employed by Adsteam Offshore Services Pty Ltd/Svitzer Offshore Pty Ltd (“the respondent”).
On 5 September 2003 the applicant, who was then employed as an Able Seaman acting as Bosun on board the vessel MV BBC Portugal, suffered a severe crush injury to three fingers of his left hand in the performance of his normal employment duties. (T4)
On 11 September 2003 the applicant lodged a claim for compensation in respect of an injury described by him as “mangled left hand, fractured fingers, amputation little finger” (T7). Liability to pay compensation to the applicant in respect of that injury was subsequently accepted on behalf of the respondent.
On 13 September 2003 the applicant underwent surgery to his left hand by Mr Jeff Ecker and Mr Tim Cooper which included amputation of the little finger through the proximal shaft metaphysis of the fifth metacarpal, and amputation of the ring finger proximal to the proximal interphalangeal joint. (T8)
By letter dated 7 March 2008 the respondent’s insurer, Allianz Australia Insurance Limited (“Allianz”), wrote to the applicant’s (then) solicitors as follows:
“ Further to our letter dated 14 September 2007, we kindly write to you in relation to the workers compensation claim for Mr Staley [sic] Jones and the Notice of Determination issued to Mr Jones, c/- your office, on the 3rd April 2007. Please find attached a copy of this Determination for your reference.
To date, nothing has been received from Mr Jones with regards to whether this determination of permanent impairment has been accepted, although it is noted a request for reconsideration has not been received.
Could you please advise as to whether Mr Jones has accepted this Determination with regards to his claim for permanent impairment. Once confirmation of this acceptance has been received, Allianz is able to pay this lump sum to Mr Jones.
Please do not hesitate to contact the undersigned should you have any questions.” (T51)
By letter dated 22 September 2008 Allianz wrote to the applicant’s (then) solicitors as follows:
“ Further to our letters dated 14th September 2007, 7th March 2008, and 16th June 2008, we write in relation to the workers compensation claim for Mr Staley [sic] Jones and the Notice of Determination issued to Mr Jones, c/- your office, on the 3rd April 2007.
As we have not received a response to any of this correspondence, could you please advise if you continue to represent Mr Stanley Jones in this matter? Allianz Australia Insurance will contact Mr Stanley Jones direct with relation to the resolution of his permanent impairment entitlements should this not be the case.
Please do not hesitate to contact the undersigned should you have any questions.” (T52)
By facsimile dated 1 October 2008 the applicant’s (then) solicitors wrote to the respondent as follows:
“ We understand from our client that he has had only ten days’ work this financial year.
At the meeting at your office on 16 July 2008, you indicated that the decision to deploy Spike on the tugs at Coolun Island was appropriate, firstly, because it fitted better into the sort of work that Spike had undertaken in the past and, secondly, because it was a job that would provide him with more long-term security.
As you will appreciate, ten days’ work in the first three months of the financial year is inconsistent with the representations as to long-term security. Will you please therefore advise us as to why Spike has not received more work than the ten days referred to, and what Svitzer’s proposals are for future deployment.” (part of Exhibit A2)
By email sent on 21 October 2008 the applicant’s (then) solicitors wrote to Allianz as follows:
“ I refer to our previous communications in respect of Spike Jones.
My client informs me that he has been working for Svitzer Offshore Pty Ltd which has taken over your insured’s business, working as Training Master of the tug, ‘Kembla II’.
Since 1 July 2008, our client has worked only ten (10) days, during which he has earned $11,484.84 gross, $7,282.72 nett.
Mr Jones has received no indication from Svitzer as to whether, and, if so, when, he can next expect to be employed and it is therefore necessary for his weekly payments of seafarer’s compensation to be reinstated.
I am currently calculating the amounts due to my client by way of weekly payments of compensation from 1 July 2008 and I would be grateful if you would, in the meantime, confirm the position with your insured so that weekly payments can commence without delay. As you would appreciate, my client, having had a greatly reduced income since the start of this financial year, is now experiencing severe financial hardship.
I look forward to hearing from you.” (T53)
By letter dated 26 November 2008 Allianz sent the following notice to the applicant, c/- his (then) solicitors:
“ SEAFARERS REHABILITATION AND COMPENSATION ACT 1992 (CTH)
NOTICE OF DETERMINATION
I refer to your claim for compensation under the Seafarers Rehabilitation and Compensation Act 1992 (‘the SRC Act’) in respect of injuries to your left hand sustained on 5 September 2003.
Your claim for compensation for incapacity has been considered in accordance with the provisions of the SRC Act. I have determined that Svitzer Offshore Pty Ltd is not liable to pay you compensation for incapacity.
Terms of Determination:
In accordance with the provisions of the SRC Act I determine that:
1 Stanley Jones is not entitled to receive compensation for incapacity under Part 2 Division 3 of the SRC Act from 1 July 2008 to date during periods he has not been employed by Svitzer Offshore Pty Ltd.
Statement of Reasons:
1 Mr Stanley Jones (‘the Seafarer’) has an accepted claim for compensation for injuries to his left hand sustained on 5 September 2003.
2 At the time the Seafarer was employed by Adsteam Offshore Pty Ltd (‘Adsteam’) as a seaman, on a casual employment basis.
3 Following his injury the Seafarer studied for and received a Master Class IV Certificate. It is also noted that the Seafarer has many years of seafaring experience.
4 The Seafarer returned initially to part-time work for Adsteam on a casual employment basis in around May 2005, and by November 2005 had returned to full hours on a casual employment basis.
5 Since obtaining his Master Class IV Certificate, the Seafarer’s work has included working as a master on such vessels as tug boats or landing barges.
6 The Seafarer, through his lawyers, advised on 21 October 2008 that he had been working for Svitzer Offshore Pty Ltd (‘Svitzer’), which had taken over Adsteam’s business, and that since 1 July 2008 he had only worked 10 days.
7 The Seafarer submitted that as he had received no indication from Svitzer as to whether, and if so when, he could next expect to be employed, it was therefore necessary for his weekly payments to be reinstated.
8 The Seafarer has continued to be employed on a casual employment basis by Svitzer, and currently there is no casual work available with Svitzer. Taking into account the Seafarer’s qualifications and experience, it is considered that there is suitable employment available for the Seafarer external to Svitzer.
9 I am therefore of the view that the Seafarer is not entitled to receive incapacity payments during periods when he is not employed with Svitzer.
Notice of Rights:
If you are dissatisfied with the determination in respect of your claim for compensation, you may, subject to certain conditions, request Allianz Australia Insurance Limited to have the determination reconsidered by another claims officer.
Conditions:
1.A request for reconsideration shall be in writing and shall include your reasons for the request.
2.The request for reconsideration of a determination shall be given to Allianz Australia Insurance Limited within 30 days of the determination first coming to your notice.
In addition to the conditions set out above, you are advised that failure to provide a request for reconsideration within the 30 days allowed may result in you losing your right to request a reconsideration.
An application to the Administrative Appeals Tribunal is dependent upon you requesting a reconsideration.
You do not have a right of application to the Administrative Appeals Tribunal until a reconsideration of the determination has been completed or a period of 60 days after Allianz Australia Insurance Limited receives notice of your request, has expired.
If you intend to obtain legal advice in respect to a request for reconsideration, the cost of obtaining that advice is NOT recoverable against Allianz Australia Insurance Limited or Svitzer Offshore Pty Ltd.
If you wish to request a reconsideration by another claims officer, please forward your request and your reasons for same to:
Reconsideration Officer
Seafarers Workers Compensation
Allianz Australia Insurance Limited
GPO Box 4049
SYDNEY NSW 2001If you have any further queries regarding the determination please contact me on the above telephone number.” (T55)
By letter dated 4 December 2008 the applicant’s (then) solicitors wrote to him as follows:
“ We enclose a copy of Allianz’s Notice of Determination dated 26 November 2008.
You will note that Allianz has determined that you are not entitled to receive compensation for incapacity during any period from 1 July 2008, during which you have not been employed by Svitzer Offshore, on the basis that you were a casual. You will note, at paragraph 8 of the Determination, that Allianz considers there is suitable employment available for you outside Svitzer and it has therefore determined that incapacity payments are not payable.
We are requesting a reconsideration but advise that it is likely to be many months before this dispute is resolved.” (part of Exhibit A2)
By facsimile, dated 2 July 2009, addressed to Allianz, the applicant’s (then) solicitors requested a reconsideration of the abovementioned determination dated 26 November 2008.
By letter dated 18 August 2011 the applicant’s (new) solicitors wrote to Allianz as follows:
“ We have been instructed by Stanley Jones to provide advice in relation to matters arising out of the above claim.
We would be most obliged if you could present our office with documents and information pertinent to our client’s claim as follows:
1.The current status of our client’s claim;
2.Weekly compensation payments made to our client to date;
3.Rehabilitation expenses incurred to our client to date;
4.Statutory benefits paid to our client to date;
5.All medical reports Progress Medical Certificates and claim documents as they relate to our client’s claims;
6.Gross and net weekly payments being made to our client immediately before 5 September 2003.
We look forward to receiving this information.
…” (T57)
By letter dated 18 November 2011 the applicant’s (new) solicitors wrote to Allianz as follows:
“ We refer to our letter of 18 August 2011, a copy of which is enclosed for ease of reference.
We require the requested documents by 28 November 2011. If you are unable to provide these documents by this date, please contact the writer as a matter of urgency, and advise when we may expect to receive the documents.
…” (T58)
By letter dated 1 December 2011 the applicant’s (new) solicitors wrote to Allianz as follows:
“ We refer to our letters of 18 August 2011 and 18 November 2011.
We have not received an answer from you regarding either of these correspondences. We request that you either provide the required documents to our office, or if you are unable to do so, contact the writer as a matter of urgency.” (T59)
By letter dated 19 December 2011 the applicant’s (new) solicitors wrote to Allianz as follows:
“ We refer to our previous written correspondence, as well as several attempts to contact you by telephone, with the most recent telephone contact with our office being on 8 December 2011.
During the course of the above conversation, you advised us that you had responded to our first letter of 18 August 2011 (correspondence which we did not receive), and that you would be forwarding a copy of this correspondence … immediately by email.
We note that we are yet to receive any such correspondence.
As a result, we are left with no choice but to obtain instructions from our client to make the necessary applications for the urgent discovery of the insurer file, in the event that we do not receive the requested documents by close of business, Tuesday, 20 December 2011. We trust that this will not be necessary.
…” (part of Exhibit A2)
By letter dated 4 September 2013 the applicant’s (new) solicitors wrote to Allianz as follows:
“ …
We are instructed to act on behalf of Mr Stanley Jones in relation to a claim for seafarers’ compensation arising out of injuries suffered on 5 September 2003 during the course of his employment with your insured.
We enclose a copy of your decision dated 26 November 2008. We are instructed by our client to request reconsideration of the decision.
Our client has instructed us to pursue this matter at the Administrative Appeals Tribunal in the event that the decision is upheld or disallowed.
…” (T64, p 165)
By letter dated 17 September 2013 Allianz wrote to the applicant’s solicitors as follows:
“ Thank you for your letter dated 04 September 2013 requesting reconsideration of a Notice of Determination dated 26 November 2008.
Pursuant to Section 78(3) of the SRCA please provide
(a) The reasons for the requested reconsideration
(b)Why the reconsideration is now taking place, some 5 years after the determination, and not within the specified 30 day period post determination provided for under the SRCA.
…”(T65)
By letter dated 23 September 2013 the applicant’s (new) solicitors wrote to Allianz as follows:
“ We refer to your letter dated 17 September 2013.
Our client made a claim for seafarers’ compensation on 11 September 2003 pursuant to the Seafarers Rehabilitation and Compensation Act 1992 (‘Act’) for injuries sustained during the course of his employment on 5 September 2003. Our client sustained serious crush injury to the left hand.
On 26 November 2008, a notice of a determination was sent to our client care of his previous solicitors, Leask & Co. The determination stated that our client’s entitlements to weekly compensation payments for incapacity would cease from 1 July 2008 for the periods in which he was not employed with your insured.
Your offices submitted that our client’s weekly payments should cease as:
a.he had obtained his Masters Certificate;
b.he was employed with your insured on a casual basis;
c.your insured had no casual work for our client; and
d.Based on our client’s qualifications your offices determined on behalf of your insured, that there was suitable employment available to our client external to your insured.
On 4 December 2008, Leask & Co provided our client with a copy of the determination. An indication was made in that correspondence that reconsideration of the determination would be sought. However it was not sought due to the failure of Leask & Co to apply for reconsideration.
Due to no contact from Leask & Co, our client collected his file and in August 2011. Our [sic] instructed these offices to act on his behalf with respect to a claim for professional negligence against Leask & Co. As per our client’s initial instructions to this office, investigations were made in relation to a claim of professional negligence in relation to Leask & Co’s management of our client’s file. We were advised by the professional negligence insurer in the matter that all avenues and opportunities should be explored before commencing proceedings against our client’s previous solicitors for a loss of opportunity claim. Steps were then taken to protect our client’s rights in Federal Court Proceedings, which were already on foot but the writ in rem had already expired.
Once our client’s rights with respect to that claim were protected, advice was provided to our client on the issues surrounding his seafarers claim (the subject of this correspondence and request for reconsideration) and potential claim for post-traumatic stress disorder (which has also been submitted to your offices for a determination with respect to liability).
Instructions were then received to request reconsideration of the 2008 determination, and assist our client in lodging a claim for post-traumatic stress disorder injuries as arising out of the 2003 workplace incident.
It is our understanding that once this matter proceeds to an application for an extension of time within which to seek reconsideration of the determination, submissions will need to be made at that hearing with respect to the delay. The time line above serves as an explanation for that delay.
Our offices submitted an application for an extension of time within which to seek reconsideration of the determination at the Administrative Appeal [sic] Tribunal (‘AAT’). However, we were advised that reconsideration out of time would need to be sought in order to process the application and progress the matter further. If the matter is not reconsidered within 60 days of your offices receiving our request for reconsideration, then an application will be filed with the AAT to progress this matter further.
With respect to your request for the reasons for the requested reconsideration, despite the delays occasioned in relation to our client’s request for an extension of time within which to seek reconsideration of the determination dated 26 November 2008, request for reconsideration has merit;
a. The determination was issued on the basis that our client had obtained a Masters Certificate, and whilst your insured was unable to provide our client with casual work, our client had the skills to seek employment external to your insured’s workplace.
a.[sic] In this regard, we note that at the time that the determination was issued, despite attempting to obtain employment elsewhere, our client had been unsuccessful. The reason why our client was unable to locate employment with another employer was because of his injury and disability.
i.[sic] Under the Seafarers Rehabilitation and Compensation Act 1992, your insured had an obligation to provide our client with rehabilitation and assistance with returning to work. The determination should not have been issued without your insured having demonstrated that our client had a capacity to work with an alternative employer.
b. We are of the opinion that a proven capacity for work with your insured in a very casual capacity is an insufficient basis upon which to issue a determination stating that our client has a capacity for duties with all other employers, particularly in light of the nature of his injury.
We look forward to hearing from you by 4 November 2013, failing which an application for an extension of time within which to request reconsideration of the decision to disallow our client’s request for reconsideration will be filed with the AAT.
…” (T66, pp 172–174)
On 2 December 2013 the applicant lodged with the Tribunal an application for review of a deemed reviewable decision of the respondent to refuse the applicant’s request for a reconsideration of the determination dated 26 November 2008. (T2, pp 6–8)
The Applicant’s Evidence
The applicant tendered in evidence his signed witness statement, dated 10 February 2014, and he confirmed that its contents are true. The relevant contents of that statement for present purposes are as follows:
“ 1. My name is Stanley Warren Jones, more commonly known as ‘Spike’ Jones, …
2.I am writing this statement in support of my application for the reconsideration of Allianz’s Determination on the 26th of November 2008, under the Seafarers Rehabilitation and Compensation Act 1992.
…
Background of Incident/Accident
3.I was involved in a serious accident whilst working on the Antigua and Barbados registered general cargo vessel MV ‘BBC Portugal’; …
4.At this time I was an employee of Adsteam Offshore Services, now Svitzer Offshore. I was engaged under the ‘Adsteam Offshore MUA Agreement 06/01/03’.
…
8.I flew back to Australia on the 9th of September 2003 and was admitted to South Perth Hospital for reconstructive surgery on the 10th of September 2003. My surgeon was Dr Jeff Ecker.
9.The surgery was complicated, and the reconstruction of the salvageable portion of my hand took place during five operations conducted over a two and a half month period. The last date of surgery occurred on 8th June 2004.
10.Following my discharge from hospital on the 17th of November 2003, I undertook extensive physiotherapy to regain some use of my left hand. This entailed around one hundred and fifteen (115) 60-90 minute sessions until the 18th of July 2004.
11.Allianz Insurance also arranged for psychological consultations and from in or about February 2004 to in or about 2010 a Clinical Psychologist (Graham Guest) provided me with ongoing support.
…
After the Accident – 2005
17.The Navigation Doctor at Rockingham (Dr Peter Lacey) subsequently determined that I was unfit to return to sea as an Able Seaman. I found this outcome very disturbing, because I enjoyed going to sea. Many of my closest friends are seafarers and I consider my seagoing career as part of my lifestyle.
18.It was at this time, that Dr Peter Lacey wrote to Worklink with his suggestion that I undertake a Master Class 4 Certificate.
…
19.After considering limited options I had, I enrolled at the Challenger Maritime College to study and sit for a Master Class 4 Certificate (Trading) on the premise that if I could not respond to an emergency (eg) hold a fire hose at 4 bar pressure, then at least I could coordinate such an emergency from the Bridge of the vessel.
20.After discussions with the Navigation Doctor as to my fitness for work, Allianz Insurance eventually agreed to pay the course fees as part of my rehabilitation. During this period Adsteam maintained payroll compensation payments.
21.After successfully completing the course I was issued with my Master Class 4 Certificate (Trading) on 11th of October 2005. I was also issued with an AMSA Medical Certificate for service as Deck Officer, limited to Masters duties only, with no lifting over 10Kg.
Work following my injury
22.Following this, Svitzer organized for me to attend at their yard in Fremantle for two days a week to be allocated to various tasks, in order to assist me in easing back into the workforce. One such task was to check on the safety items in the yard, along with an assessment of potential hazards and existing hazards, for a forthcoming safety audit.
23.Another task I was given was as a courier, driving a company vehicle to various suppliers, to pick up goods ordered for company vessels and bringing them back to the yard and stacking them into each vessel’s allocated place, ready for collection.
24.This practice was stopped by Ms Jan Goddard of the Worklink Occupational Health and Rehabilitation Service, who argued with Adsteam that it was inappropriate work for someone who had sustained a debilitating hand injury that precluded manual tasks, and also made the point that I was not a truck driver undergoing rehabilitation.
25.Undertaking the Courier work was embarrassing, as I would have to constantly ask for help. If I went to collect stock from Bunnings, the person in dispatch would often have to help me.
26.I did the Courier work two (2) days a week, for half days. The idea was to ease me back into the workforce.
27.The next phase of my rehabilitation involved returning to sea in my new capacity as Mate and Master.
28.As a Master some of my duties were to ensure the safe navigation of a vessel, which involved mapping out a passage plan, which is then signed off. My duties were also to ensure the safe operation of the vessel (for example ensuring safety regulations are adhered to). There is no physical work involved in either of these roles.
29.I was sent to the tug ‘Wyola’, as Mate on the 26th of December 2005.
30.Adsteam ceased making compensation payments on the preceding day.
31.Part of my duties on the ‘Wyola’ involved rigging a tow wire and towing pennants for the static tow of an oil tanker moored astern of an FPSO. This job lasted 3 days.
32.I was then transferred to the landing barge ‘Karinya 2’ as Mate on 29th December 2005, after advising the head of personnel at Adsteam that I was physically incapable of performing the deck work required with the rigging of heavy towing wires and shackles on the ‘Wyola’.
33.When I was required to lift cargo, if it was too difficult the crew would assist me. They would tell me that we are a team and that I didn’t have to struggle with the cargo myself.
34.I took on some casual work between October and December of 2005 driving crew and doing lines work at Kwinana for Adsteam.
35.This entailed driving the line boat as Master. My employers wanted me to go to the wharf and handle the ship’s mooring lines. I advised Svitzer that I was incapable of doing that as they are big wires and I could not physically do it with my hand injury.
36.Following this I was provided with somewhat sporadic employment until 8th September 2008, after which I was offered no further engagements. Similarly, my payroll compensation payments were stopped on the 25th of December 2005 without any formal advice from Adsteam, written or otherwise.
Attached hereto and marked ‘SWJ4’ is a table summarizing my employment record with Adsteam from 26th December 2006 [sic] until my employment ceased on 8th September 2008.
37.Svitzer took over from Adsteam in or about December 2007.
38.Any day where [sic] I was not working was taken as a Leave day. During periods when my accumulated Leave ran out, I received no pay. SWJ4 demonstrates the irregularity of employment, and is punctuated by some lengthy periods without work.
39.I found some of these periods particularly stressful to endure, with Adsteam/Svitzer offering no explanation for my inconsistent employment and not responding to my queries about this.
40.In 2008, I also worked for 10 days in Dampier, doing Master’s work for the vessel ‘Tom Welsby’.
41.I assisted with the navigation and safe operation of the vessel. I was not required to do any physical work.
42.Through the remainder of 2008 and into 2009 I turned my attention towards seeking reinstatement of compensation payments through my Legal Representative [X] and I sought casual work elsewhere. During this time I supported myself by way of withdrawing from my superannuation fund, and selling a car.
43.In May or June of 2009, I worked as a Mate, moving a vessel from the North West Shelf to Singapore. There was no physical work involved, just paperwork.
44.I was employed by OMS as Mate and Master on the landing barge ‘Malu Explorer’ from 17th August 2009 until 22nd October 2009. This was a lengthy engagement, involving the delivery of the vessel from Darwin to Dampier, while numerous repairs and modifications were carried out and Surveys and Audits conducted. I eventually asked to be relieved.
45.I was required to load stores (load coke, water, frozen food etc) onto the ship. If I had difficulty lifting anything (which I usually did), I would use the support of my right hand.
46.After two months of very intense work I felt I needed a break. Following this OMS treated with [sic] similar disdain to Svitzer and they did not contact me again.
47.I was further employed by Samson Maritime as Master on the bunkering vessel ‘Parmelia’ operating in Fremantle Harbour from 1st February 2010 until 30th June 2010, after which they disposed of the vessel. I have not sought any further employment since then, due to feeling unable to cope.
Re-deployment
48.Svitzer did not redeploy me. I was let go without reason or a separation certificate and consequently, I was unable to claim Centrelink support. They just stopped giving me work from the 8th of September 2008.
49.I called Svitzer to find out why they were not giving me further work, and they did not respond.
50.I then wrote to my lawyer [X] asking him to contact them to discuss why I was no longer receiving any work.
…
Work applications
51.Once the work with Svitzer started to deteriorate, I made some telephone applications for positions with other companies.
52.I did not make any written applications, because that was not the usual protocol at the time. I telephoned the companies instead.
53.I cannot recall all of the jobs that I applied for, however I do recall making one to … Total Marine Services, who told me that they had no available work at the moment, and to Total Harbour Services, who also said that there was no available work.
54.None of the jobs I applied for were successful. None of the companies told me that the reason [sic]. However, I know that the industry is very ‘tight knit’ and it would not be unsurprising [sic] for other shipping companies to have heard about my injuries and the workers compensation claim that I was dealing with with Svitzer.
55.Also, most of the companies wanted a Master Class 3 Certificate minimum, and I only had a Master Class 4.
56.I have a zealous attitude to safety and injury, and this may have impacted on decisions. I do not know for certain though, I can only speculate.
57.I do not recall how many applications for positions that I applied for [sic], but I do believe that it would have been more than 10.
Legal Representation and Delay
58.On or about September of 2003, I instructed [X] to represent me regarding my compensation claim. I only ever instructed [X], and did not deal with any other person from [X’s firm] (aside from speaking to the receptionist).
59.[X] and I had many meetings throughout 2003-2005, to discuss my rehabilitation.
60.In 2005 I returned to work, so I did not have contact with [X] again until there was uncertainty with work in 2008.
61.In 2008, once work had ceased I contacted [X] and subsequently instructed him to contact Svitzer for the re-instatement of my compensation payments.
62.[X] told me that the determination would take some time. I waited to hear from him, and left messages for him, but I did not receive a response.
…
63.In or about November 2008, I was told by my lawyer [X] that a determination had been made.
64.[X] sent me a letter confirming that the claim had been denied, but that there were grounds for an appeal. He told me that it would take a few months, and that it would take steps for the reconsideration (I cannot remember the exact terminology).
Attached hereto and marked ‘SWJ7’ is a copy of the letter from [X’s firm] dated the 4th of December 2008.
65.Immediately, I called [X’s ] office and made an appointment to speak to [X].
66.I then went to [X’s] office to discuss the determination, and as I thought it was unreasonable I immediately instructed him to appeal the decision.
67.He told me that he would contact Svitzer.
68.In November or December of 2008, I was hospitalised for 3 weeks in Fremantle after suffering with a collapsed lung and pneumonia.
69.After I was discharged from hospital, I contacted [X’s] office on numerous occasions, mainly by way of telephone calls.
70.I left messages, but did not receive a call back. I would have called at least once every month.
71.I started to contact [X] by email, requesting an update on the appeal.
72.I was told that it was ‘in the process’, and I was only ever told words to the effect of “they (Allianz) are being uncooperative’.
73.[X] continued to ignore my numerous requests for dialogue, meeting notes, developments or reports on the progress of the appeal.
74.Alarm bells started to ring in 2010, after [X’s] refusal to answer my calls.
75.At that time the emails I was sending [X] were becoming blunt, because I was frustrated.
76.By April 2010 it became clear to me that my [sic] [X] was not representing my interests satisfactorily.
77.In or about May of 2010, I was on the High Street in Fremantle, and saw [X]. I told him that I wanted my paperwork and to give me an invoice.
78.It was only upon the receipt of my file on the same day, that I saw the letter … which detailed the determination, and stated that there was a 30 day time limit to request the reconsideration. Before then, I had never seen the letter, and did not know that there was a time limit.
79.I was naïve and had no idea that lawyers could do that. I thought that he was engaged to represent me, and that the process would occur, and when there was progress I would be notified.
80.On the 25th of May 2010, I contacted AMSA to request a copy of the incident report, as I had never seen it.
81.AMSA govern Seacare so I was hoping they would assist me in re-opening my claim, because I knew by then that the 30 days to apply for re-determination [sic] had expired.
82.I was told that they could not find a record of the accident and my injury.
…
83.I continued to seek advice from AMSA.
…
84.On the 27th of May 2010, I went to the Union and they assisted me in convening a meeting with Kate Dempster at McNally Jones.
85.I met with Ms Dempster and discussed what the likelihood was of re-opening the reconsideration of my claim, and also pursuing [X] for failing to act.
86.Ms Dempster said that she could not assist me, due to it being a conflict of interest.
87.On the 6th of July 2010, I rang the Law Society to obtain advice. They recommended …
88.I rang each of the lawyers/firms that were recommended. Some did not want to represent me because they did not specialise in maritime law, and the others wanted to charge exorbitant fees (and I was already struggling financially).
89.Throughout this period, I continued to have contact with AMSA.
…
90.I was distressed and confused as to what action I needed to take next, so at the beginning of October 2010 I flew to Bali to see a friend of mine, who was a fellow Master Mariner. I brought [X’s] file with me to Bali.
91.My friend showed me the Writ, which I had not seen before, and I did not even know existed.
92.It was then that we discovered that the Writ had been filed by [X] on the final day of the statutory limitation period’s expiry.
93.In October 2010, I was diagnosed with basal cell carcinoma, and underwent an operation, followed by 5 months of radiation therapy at Sir Charles Gairdner Hospital.
94.On advice from my friend in Bali, on 30 March 2011, I drafted a Statement of Facts, which I sent to AMSA, to see if they could assist me with my claim.
…
95.I was also given a recommendation to see John Fiocco of Fiocco’s Lawyers. I made an appointment, and met with John in August of 2011. John Fiocco has represented me from that date.
96.For a long time, in between having legal representation I wrote letters to authorities, and researched the legislation to figure out how to pursue my claim.
…”(Exhibit A1)
The contents of attachment “SWJ4”, referred to in paras 36 and 38 of the applicant’s witness statement, are as follows:
“ Summary of employment record with Adsteam from 26th December 2006 [sic]:
Vessel
Rank
Date On
Date Off
Pay Days
Days Off
Wyola
Mate
26/12/2005
28/12/2005
2
-
Karinya 2
Mate
29/12/2005
1/02/2006
34
1
Karinya 2
Mate
8/03/2006
6/04/2006
29
35
Skate
Master
28/04/2006
4/05/2006
6
22
Karinya 2
2nd Mate
5/05/2006
7/05/2006
2
1
Karinya 2
Mate
18/05/2006
27/05/2006
9
11
S. Osprey
Master
28/05/2006
11/06/2006
14
1
Walan
2nd Mate
7/07/2006
18/07/2006
11
26
Sea Tiger
2nd Mate
19/07/2006
24/07/2006
5
1
Karinya 2
Mate
2/10/2006
26/10/2006
24
70
Karinya 2
Master
27/10/2006
28/10/2006
1
1
Karinya 2
Mate
29/10/2006
1/11/2006
3
1
Karinya 2
Master
2/11/2006
6/11/2006
4
1
Karinya 2
Mate
29/11/2006
2/12/2006
3
23
Karinya 2
Master
7/12/2006
9/12/2006
2
5
Latrobe
Master
28/12/2006
1/01/2007
4
19
Karinya 2
Master
21/01/2007
25/01/2007
4
20
Karinya 2
Master
26/02/2007
1/03/2007
3
32
Karinya 2
Master
14/03/2007
25/03/2007
11
13
Harrietta
Master
4/04/2007
7/05/2007
33
10
Karinya 2
Master
18/06/2007
15/07/2007
27
42
Karinya 2
Master
26/07/2007
28/08/2007
33
11
Karinya 2
Master
19/10/2007
14/11/2007
26
52
Karinya 2
Master
26/11/2007
4/12/2007
8
12
Karinya 2
Master
7/12/2007
21/12/2007
14
3
Karinya 2
Master
26/12/2007
29/12/2007
3
5
Karinya 2
Master
1/01/2008
7/01/2008
6
3
Karinya 2
Master
20/02/2008
3/03/2008
12
44
Karinya 2
Master
5/03/2008
19/03/2008
14
2
Karinya 2
Master
29/04/2008
5/06/2008
37
41
Kembla 2
Master
21/08/2008
24/08/2008
3
77
Wyola
Master
25/08/2008
28/08/2008
3
1
Kembla 2
Master
4/09/2008
8/09/2008
4
7
Totals:
394
593
Pay Days:
40%”.
In his oral evidence-in-chief the applicant said that, at the end of November 2008, his former solicitor, [X], had telephoned him and informed him that his claim for reinstating his compensation had been denied. He said that he was not happy with that decision and that he went into [X’s] office and [X] read out the Notice of Determination, dated 26 November 2008, to him. He said that he then instructed [X] to appeal that decision. He said that that Notice of Determination had never been sent to him and that he had never received it.
The applicant also said that, although he was aware that he had the right to request a reconsideration of that determination, he was unaware that there was a time limit of 30 days for making such a request because the section of the Notice of Determination which set out the conditions regarding reconsiderations and applications to the Tribunal had not been read out to him by [X].
The applicant said that he had never previously made a compensation claim and that he had never had any experience with lawyers regarding compensation matters.
In cross-examination the applicant was referred to the letter from his former solicitors, dated 4 December 2008, referred to in para 64 of his witness statement (see paragraph 13 above in which that letter is set out). He said that he received that letter from [X’s firm] but that a copy of the Notice of Determination, dated 26 November 2008, was not enclosed with that letter.
The applicant confirmed that, after he first saw that Notice of Determination in May 2010 (see para 78 of his witness statement), he contacted AMSA and various lawyers to seek advice but that he did not contact Allianz about it. He added that he cannot explain why he did not contact Allianz at the time but that, “in retrospect”, it was because he felt that he did not have the legal capability to deal with that matter and that he needed legal advice and representation for that purpose.
In re-examination the applicant confirmed that none of the bodies from whom he sought advice, including AMSA and various lawyers (referred to in paras 80–88 of his witness statement), advised him to contact Allianz directly.
Evidence Tendered by the Respondent
The respondent tendered in evidence a Labour Market Assessment Report, dated 11 July 2014, prepared by Michelle Woolerson, Registered Psychologist/Rehabilitation Consultant, Advanced Personnel Management (“APM”) (Exhibit R1). That report, which is addressed to the respondent’s solicitors, states as follows:
“ Thank you for your letter dated 11 June 2014, in which you request a Labour Market Assessment Report in relation to a claim for Worker’s Compensation lodged by Mr Stanley Jones under the Seafarers’ Rehabilitation and Compensation Act 1992.
The current report is undertaken as a retrospective review of relevant factual and medical evidence provided to Advanced Personnel Management (APM) by Sparke Helmore Lawyers. The undersigned has reviewed all necessary documentation provided in order to support the following Labour Market Assessment Report.
The undersigned has not formally assessed nor met Mr Jones in person. The current opinion is based purely on Mr Jones’s vocational potential as indicated by medical evidence, functional information and vocational rehabilitation progress reports. It is noted that there is limited information provided with regard to Mr Jones’s occupational interests, work history and training potential to inform the current assessment. For the purposes of the present report, retrospective Labour Market Research was undertaken by Ms C Sparre (APM Employment Services Consultant).
It is noted that Mr Jones sustained a severe left hand injury during the course of his work as a Merchant Seaman and has the following functional restrictions in relation to potential work options:
·Unable to use left hand for heavy lifting;
·Avoid repetitive use of the left hand; and
·Avoid tasks which involve vibration to the left hand.
(a)Please provide information in regard suitable [sic] employment for Mr Jones during the period from 1 July 2008 to … June 2013.
Ship’s Master
APM considers that Mr Jones possesses the necessary qualifications and experience to perform the role of a Ship’s Master. Mr Jones has 42 years experience working in the seafaring industry and has completed Master Class Certificate IV required for this role. Mr Jones has been certified medically fit by his specialist, Dr Barrie Singer, to work as a Ship’s Master on tugs and barges with a restriction of up to 500 tonnes. Mr Jones has worked in this role on a casual basis since gaining his qualification in 2005 and self reported that the physical demands of the job accommodated his physical limitations.
Vocational Education Teacher – Coastal Seafaring
APM considers that Mr Jones has the necessary experience and skills to train individuals in coastal seafaring at institutions such as TAFE or Australian Maritime College. Mr Jones has a vast skill base in this industry both working at sea and on mainland. Labour Market Research has indicated that Mr Jones would be well placed to become a Vocational Education Teacher if he were to complete a Certificate IV Workplace Assessment and Training. This role is likely to accommodate Mr Jones’s physical restrictions.
Radio Dispatcher
APM considers that Mr Jones would have the potential for employment as a Radio Dispatcher to provide communication services for the coordination of operational units in transport, courier, emergency, security, rescue and road service organisations. Mr Jones would have the transferable skill base in radio operation and communication through his previous role as a Ship’s Master. Mr Jones’s previous experience in the shipping industry, his knowledge and strict adherence to occupational health and safety issues, ability to stay calm in difficult situations and ability to think and act quickly are skills and attributes required in this role. Labour Market Research has indicated that with training on-the-job, Mr Jones has the potential to be competitive in this area. This role would accommodate Mr Jones’s physical limitations.
Light Courier Driver
APM considers that Mr Jones has the necessary skills to perform the role of a Light Courier Driver. Evidence provided indicates that Mr Jones has a current driver’s licence and is competent in driving an automatic car which minimises the use of his left hand. Whilst it is acknowledged that Mr Jones does not have any direct employment experience in the role of a Light Courier Driver, Labour Market Research indicates that with training on-the-job it is anticipated that he would be competent in this role providing he is restricted to light deliveries. This role would accommodate Mr Jones’s physical limitations.
(b)Please provide the amount per week having regard to the state of the labour market, at the relevant time, the applicant could be reasonably expected to earn in such employment.
Ship’s Master
Period
Award
Minimum Weekly Wage
2010 to Present
Seagoing Industry Award 2010 MA0001221
$1,230 gross
2008 to 2010
Maritime Industry Seagoing Award 1999 AP7880801
$1,008 gross
Source:
1. Award
Vocational Education Teacher
Period
Award
Minimum Weekly Wage
2010 to Present
Educational Services (Teachers) Award 2010 MA0000771
$857 gross
2008 to 2010
Independent School Teachers Award 1976 AN16017 2
$583 gross
Source:
1. http:www/tcci/com.au/Workplace-Relations/Awards-A-Z/Educational-Services-(Teachers)- Award
2. Dispatcher
Period
Award
Minimum Weekly Wage
2010 to Present
Security Services Industry Award 2010 MA0000161
$640 gross
2008 to 2010
Clerks (Control Room Operators) Award 1984 AN1600712
$508 gross
Source:
1. http:www/tcci/com.au/Workplace-Relations/Awards-A-Z/Security-Services-Industry- Award
2. Courier Driver
Period
Award
Minimum Weekly Wage
2010 to Present
Road Transport and Distribution Award 2010 MA0000381
$678 gross
2008 to 2010
Transport Workers (Oil Distribution) Award 2001 AP8132522
$608 gross
(Utility Driver)
Source:
1. http:www/tcci/com.au/Workplace-Relations/Awards-A-Z/Road-Transport-and-Distribtuion-Award
2. provide information on current positions that are available, including the gross hourly wage and the gross full time weekly amount in such employment.
Ship’s Master
Job Outlook Australia indicated that the employment outlook for Ship Masters currently is rated as 'below average’ however employment over the next five years is expected to ‘grow moderately’. Unemployment for Ship Masters is ‘average’. A review of positions available for Ship Masters on Seek.com.au revealed 1 vacancy in the Perth region.
Gross Hourly wage: $44.00
Gross full time weekly wage: $1,675.00 (38 hour week)
Vocational Education Teacher
Job Outlook Australia indicated that the employment outlook for Vocational Education Teachers is rated as ‘average’ currently and that the number of job openings over the next 5 years is expected to ‘grow moderately’. Unemployment for Vocational Education Teachers is ‘average’. A review of positions available for Vocational Education Teachers on Seek.com.au revealed 3 vacancies in the Perth region.
Gross hourly rate: $35.92
Gross full time weekly wage: $1,365.00 (38 hour week)
Radio Dispatcher
Job Outlook Australia indicated that the employment outlook for Radio Dispatchers is rated as ‘average’ currently and that over the next five years positions for Radio Dispatchers is expected to ‘grow moderately’. Unemployment for Radio Dispatchers is rated as ‘average’. A review of positions available for Radio Dispatchers on Seek.com.au revealed 3 vacancies in the Perth region.
Gross hourly rate: $28.94
Gross full time weekly wage: $1,100.00 (38 hour week)
Light Courier Driver
Job Outlook Australia indicated that the employment outlook for Light Courier Drivers is rated as ‘above average’ with job openings arising from employment growth and people leaving the occupation. Employment for Light Courier Drivers is expected to ‘grow moderately’ during the next five years. Unemployment for Light Courier Drivers is ‘average’. A review of positions for Light Courier Drivers on Seek.com.au revealed in excess of 40 vacancies in the Perth region.
Gross hourly wage: $23.00
Gross full time weekly wage: $874.00 (38 hour week)
(d)Please provide information in regard to the availability of such employment over the whole period from 1 June 2008 to … June 2013.
The following figures are based on a count of online industry vacancies lodged on Seek, My Career, Careerone and Australian Job Search websites, as reported by the Australian Bureau of Statistics.
Construction, Production and Distribution Managers (inclusive of Ship’s Master)
Year Vacancies Advertised in Western Australia (approximately) 2008 6,800 2009 2,475 2010 3,225 2011 4,670 2012 4,465 2013 2,180
Education Professionals (inclusive of Vocational Education Teacher)
Year Vacancies Advertised in Western Australia (approximately) 2008 3,365 2009 1,915 2010 1,635 2011 1,185 2012 1,150 2013 1,175
Drivers and Storepersons (inclusive of Radio Dispatcher)
Year Vacancies Advertised in Western Australia (approximately) 2008 5,225 2009 2,765 2010 3,490 2011 3,795 2012 2,795 2013 1,910
Machinery Operators and Drivers (inclusive of Light Courier Driver)
Year Vacancies Advertised in Western Australia (approximately) 2008 11,475 2009 5,835 2010 9,620 2011 10,520 2012 10,555 2013 9,810
If you have any queries in relation to the contents of this report, please do not hesitate to contact the undersigned …”
By letter dated 14 August 2014 the respondent’s solicitors requested APM to provide a supplementary report regarding the applicant. That request was made in the following terms:
“ Your report dated 11 July 2014 provided an overview of data obtained from the Australian Bureau of Statistics identifying the number of jobs that were generally available within each category of position you the applicant [sic] capable of undertaking during the period from 1 July 2008 to … July [sic] 2013.
1.Please provide further particulars in relation to the state of the labour market during the period from 1 July 2008 to … July [sic] 2013 with respect of [sic] each of the specific positions you considered the applicant capable of undertaking during that period. It is important that information provided is as specific as possible. Accordingly, please address:
a. How many jobs were available, specifically in the roles that you identified, in the period from 1 July 2008 to … July [sic] 2013 in the labour market available to the applicant?
2.If you are unable to provide the further particulars requested in question one please explain, in as much detail as possible, why you were unable to provide the requested information. In particular please identify any barriers you encountered in undertaking this research given the retrospective nature of this request.”
By letter dated 25 August 2014, Candice Sparre, Employment Services Consultant, APM, responded to the abovementioned request as follows:
“ Thank you for your letter dated 14 August 2014, in which you requested APM to provide a supplementary report further to the report dated 11 July 2014.
(a)How many jobs were available, specifically in the roles that you identified, in the period from 1 July 2008 to … July 2013 in the labour market available to the applicant?
APM liaised with ‘James’ from Australian Bureau of Statistics on 25 August 2014. APM was informed that the Labour Force Department did not have any data in relation to specific occupations advertised during the period 1 July 2008 to … July 2013.
Data on job vacancies was available from the Australian Bureau of Statistics; Job vacancies however should not be confused with job advertisements. APM reviewed the following Vacancy Reports:
·The Internet Vacancy Index (IVI) based on a count of newly lodged online vacancies on selected employment internet sites (from secondary sources);
·The Skilled IVI based on counts of internet advertisements for skilled vacancies (the aggregation of Australian and New Zealand Standard Classification of Occupations (ANZSCO) categories Professionals, and Technicians and Trade Workers);
·The Regional IVI, which provides indices for more detailed geographic areas.
·The Occupational IVI, which provides indices for occupations based on the Australian and New Zealand Standard Classification of Occupations (ANZSCO).
APM are only able to obtain data in relation to job advertisements per state or industry specific. There is no available data in relation to the number of job advertisements available between a certain time frame for specific occupational titles.
…” (Exhibit R2)
Additional Evidence Tendered by the Applicant
Attachment “JF9” to the affidavit of John Gaetano Mario Fiocco tendered by the applicant (Exhibit A2) comprises a report, dated 23 October 2014, of Professor Charles Mulvey, Managing Director, LabourNet Australia Pty Ltd. That Report, which is addressed to the applicant’s solicitors, states as follows:
“ Thank you for referring this matter to me. I have been provided with:
·A letter from Ms Candice Sparre of Advanced Personnel Management (APM) to Ms Kate Slack of Sparke Helmore dated 25 August 2014;
·A letter from Ms Kate Slack to Ms Michele [sic] Woolerson of APM dated 14 August 2014;
·A report by Ms Michelle Woolerson of APM addressed to Mr Ben Dube of Sparke Helmore Lawyers dated 11 July 2014.
I am requested to review these documents and provide my expert opinion as to their contents and methodology and to make any other points or comments concerning the reports.
The letter from Ms Candice Sparre of Advanced Personnel Management (APM) to Ms Kate Slack of Spark [sic] Helmore dated 25 August 2014.
Ms Sparre refers in this letter to the Internet Vacancy Index (IVI) which is maintained by the Australian Bureau of Statistics. She appears to have overlooked that the IVI is available at the four-digit occupational level which, while not perfect, is of much more use in assessing the availability of employment in individual occupations than any other of the available series. This is because it is disaggregated to a fairly specific occupational definition. It has also been available as a continuous series on a quarterly basis since 2006. In my opinion, this oversight has led Ms Sparre to use an inappropriate index in an attempt to estimate the availability of employment for the occupations deemed suitable for Mr Jones.
The letter from Ms Kate Slack to Ms Michele [sic] Woolerson of APM dated 14 August 2014.
In this letter Ms Slack requests Ms Woolerson to provide an assessment of the state of the labour market from 1 July 2008 to … July 2013, in each of the specific positions the applicant had been deemed capable of undertaking during that period. Specifically, she requested that Ms Woolerson address the following question:
·How many jobs were available, specifically in the roles that you identified, in the period 1 July 2008 to … July 2013 in the labour market available to the applicant?
The report by Ms Michelle Woolerson of APM addressed to Mr Ben Dube of Sparke Helmore Lawyers dated 11 July 2014.
This report first nominates four occupations which are deemed to have been suitable employments for Mr Jones in the period 1 July 2008 to … July 2013. I am not qualified to comment on the suitability of the occupations so nominated.
The report then goes on to present data on award wages for each of the nominated occupations for the period 2008 – 14. In each case a single award rate for the whole period 2008 – 10 and for the whole period 2010 to present is set out. This is incorrect. The award rate changed in every year from 2008 – 14. For example, Ms Woolerson’s report says that the award rate for a Ship’s Master in the Seagoing Industry Award 2010 from 2010 to present was $1,230 per week gross. In fact, the award rate is not expressed as a weekly amount in the Seagoing Industry Award 2010. Instead it is expressed as an annual ‘Aggregate Rate’ which takes into account an aggregate overtime component. The Seagoing Industry Award 2010 provides for the following minimum wages for Ship’s Masters from 2010 until the present time.
·In 2010 this aggregate rate was in the range $74,686 to $96,662 per annum depending on the type and size of ship on which the Master was employed;
·In 2011 these rates were increased to $79,158 to $101,881 per annum;
·In 2012 these rates were increased to $81,453 to $104,835 per annum;
·In 2013 these rates were increased to $83,570 to $107,560 per annum;
·In 2014 these rates were increased to $86,077 to $110,787 per annum.
Every other award rate referred to in Ms Woolerson’s report also changed in each year between 2008 and 2014. Accordingly, almost all of the data on award rates in Ms Woolerson’s report are simply incorrect and misleading.
Some awards are also incorrectly identified. For example, the Transport Workers (Oil Distribution) Award 2001 is identified as covering Light Courier Drivers in the period 2008 – 2010. It did not. It covered the drivers of oil tankers and related vehicles.
Next, the report uses the Job Outlook website to comment on the forecast for employment in each of the occupations under consideration. It should be understood that these forecasts often refer to an aggregated group of occupations rather than the particular one under consideration. For example, the report says that ‘… Job Outlook indicated that the employment outlook for Ship’s Masters currently is rated below average…’. In fact the Job Outlook forecast refers to an occupational group Marine Transport Professionals which includes a whole variety of individual occupations in addition to Ship’s Masters. Ship’s Masters is only a small element in this occupational group so that the forecast has limited specific application to that occupation.
It then presents data on gross hourly and gross weekly pay but does not identify the source of these data. The Job Outlook website contains earnings data extracted from the ABS EEBTUM Survey August 2013 cat no 6310.0 but the data currently displayed on that website do not correspond to those contained in Ms Woolerson’s report. For example, the earnings of full- time VET Teachers are given as $1,538 per annum by Job Outlook whereas Ms Woolerson’s report lists $1,365 per annum as the gross earnings of full-time VET Teachers. This discrepancy may be due to Ms Woolerson’s research having been undertaken before the Job Outlook website was last updated. However, the Job Outlook website contains no data on the earnings of Ship’s Masters so that it is unclear where the figure reported in Ms Woolerson’s report of $1,675 per week was obtained.
Next, the report addresses the request to ‘… provide information in regard to the availability of such employment over the whole period from 1 June 2008 to … June 2013.’
I am at a loss to understand how the method chosen is supposed to provide the requested information. The data selected to indicate the availability of employment are highly aggregated ABS Internet Vacancy Indices (AVI) and in three out of the four instances allocate occupations to the wrong occupational group. In the case of Ship’s Master the report says that Ship’s Masters are included in the occupational group Construction, Production and Distribution Managers. This is not correct. In fact Ship’s Masters are included in the occupational group Marine Transport Professionals (2312). Quarterly data on the level of Internet Vacancies in WA for this occupational group are available from January 2006 until September 2014. Why this was not the chosen data source I cannot understand.
Similarly, IVI data for the occupational group Education Professionals (24) are used when IVI data are available for VET Teachers (2422) in the four-digit occupation IVI series.
The occupation of Radio Dispatcher (5999-14) is said to be included in the occupational group Drivers and Storepersons. It is not. It is instead included in the occupational group Miscellaneous Clerical and Administrative Workers (599). However IVI data for the occupational sub-group Other Miscellaneous Clerical and Administrative Workers (5999), of which Radio Dispatchers are one of six included occupations, are available for WA and could have been used.
The occupation of Light Courier is said to be included in the occupational group Machinery Operators and Drivers. It is not. It is instead included in the occupational group Clerical and Office Support Workers (561). However, IVI data for the occupational sub-group Couriers and Postal Deliverers (5612), of which Couriers are one of two included occupations, are available for WA and could have been used.
I can only assume that the [sic] Ms Sparre, whom I understand carried out the labour market research in Ms Woolerson’s report, is unfamiliar with the manner in which ABS classify occupations and is also unfamiliar with the detailed construction of the IVI data series. In consequence, the data extracted from the IVI series which she used in her report are not only worthless but highly misleading.”
The Relevant Legislation
The SRC Act relevantly provides as follows:
“Part 6 - Reconsideration of determinations and review of decisions by the Administrative Appeals Tribunal
Division 1 - Definitions
76Interpretation
(1)In this Part:
AAT Act means the Administrative Appeals Tribunal Act 1975.
AAT extension application means an application under subsection 29(7) of the AAT Act that relates to a review of a reviewable decision or an extension of time decision.
claimant means a person in respect of whom a determination is made.
decision has the same meaning as in the AAT Act.
determination means a determination, decision or requirement made by the employer under section 13, 26, 27, 28, 29, 30, 31, 33, 34, 35, 36, 37, 39, 40, 41, 43, 44, 45, 49, 50, 51, 66 or 126.
extension of time decision means a decision of the Authority under paragraph 72(1)(b), 73(2)(c) or 73A(1)(b).
reviewable decision means a decision made under section 78.
(2)For the purposes of this Part, the parties to proceedings instituted under this Part are:
(a)the applicant; and
(b)where the applicant is not the claimant—the claimant; and
(c)the employer.
Division 2—Reconsideration of determinations by employers
77 Determinations to be notified in writing
(1)As soon as practicable after an employer makes a determination, the employer must cause to be served on the claimant a notice in writing setting out:
(a)the terms of the determination; and
(b)the reasons for the determination; and
(c)a statement to the effect that the claimant may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 78(2).
(2)…
78Reconsiderations of determinations
(1)An employer may, on the employer's own initiative, reconsider a determination made by the employer, whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
(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.
(7)In this section:
industry panel means an industry panel established under an industrial agreement for the purposes of assisting the employer in reconsidering a determination under this section.
79 Time limit for reconsideration of determinations
(1)If a claimant requests an employer to reconsider a determination made by the employer, the employer must reconsider the determination before the later of the following times:
(a)the end of the period of 60 days after the employer receives the request;
(b)if, at the written request of the employer, the Authority, by written notice served on the employer, allows a further period or further periods for the determination of the liability—the end of that period or those periods, as the case may be.
…
(6)If the employer has not determined the claim by the end of the period allowed by this section, the employer is taken to have made a decision, at the end of that period, disallowing the claim.
…
88Applications to the AAT
(1)Application may be made to the AAT by a claimant for review of a reviewable decision.
(2)Despite section 27 of the AAT Act, no person other than the claimant may make an application under subsection (1).”
Section 31 of the SRC Act provides for the making of determinations of weekly compensation payable to employees who are incapacitated for work as a result of a compensable injury, in accordance with a formula which includes “the amount of the employee’s normal weekly earnings” and “the amount per week (if any) that the employee is able to earn in suitable employment”. As regards the latter element, s 32 of the SRC Act provides:
“ 32 Determination of suitable employment
An employer who determines, for the purposes of section 31, the amount per week that an employee is able to earn in suitable employment must have regard to the following:
(a)if the employee is in employment - the amount per week that the employee is earning in that employment;
(b)if, after becoming incapacitated for work, the employee received an offer of suitable employment and did not accept that offer - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)if, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, did not engage, or continue to engage, in that employment - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)if, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee did not fulfil that condition - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(e)if, after becoming incapacitated for work, the employee has not sought suitable employment - the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)if paragraph (b), (c), (d) or (e) applies to the employee - whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in the opinion of the employer, reasonable in all the circumstances;
(g)any other matter that the employer considers relevant.”
The phrase “suitable employment” is defined in s 3 of the SRC Act as follows:
“ suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means any employment (including self-employment) for which the employee is suited having regard to:
(a) the employee’s age, experience, training, language and other skills; and
(b) the employee’s suitability for rehabilitation or vocational retraining; and
(c)if employment is available in a place that would require the employee to change his or her place of residence – whether it is reasonable to expect the employee to change his or her place or residence; and
(d) any other relevant matter.”
As regards the meaning of the word “decision” in the Administrative Appeals Tribunal Act 1975 (Cth), s 3(3) of that Act provides:
“ Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:
(a)making, suspending, revoking or refusing to make an order or determination;
(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e)making a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article; or
(g)doing or refusing to do any other act or thing.”
Consideration
The decision under review
In the respondent’s Statement of Facts, Issues and Contentions, filed on 31 October 2014, it is stated (at para 2.5):
“ … The decision that is before the Tribunal is a decision denying the applicant an extension of time within which to request a reconsideration of the determination dated 26 November 2008.”
The respondent, furthermore, contended (at para 4.3) that “the decision under review is reviewable by the Tribunal …”
The Tribunal accepts the abovementioned contentions. In the Tribunal’s opinion, although the respondent did not expressly decide to refuse to grant to the applicant an extension of time (beyond the 30-day period for requesting reconsideration of a determination prescribed by s 78(3)(b) of the SRC Act) for requesting a reconsideration of its determination of 26 November 2008, its failure to do so prior to 2 December 2013 (when the applicant lodged his application for review in this proceeding), notwithstanding its request to the applicant, on 17 September 2013, for the reasons for the applicant’s reconsideration request of 4 September 2013 and an explanation for the delay in making that request (to which the applicant responded at length on 23 September 2013), may appropriately be taken, as at 2 December 2013, to constitute a refusal to grant such an extension of time to the applicant. That deemed refusal to grant to the applicant an extension of time for requesting a reconsideration of the respondent’s determination 26 November 2008 constitutes, in the Tribunal’s opinion, a deemed decision under s 78 of the SRC Act and, accordingly, a deemed “reviewable decision” (as defined in s 76(1) of the SRC Act) in respect of which, pursuant to s 88(1) of the SRC Act, an application for review may be made to the Tribunal by the applicant.
Should the applicant be granted the required extension of time for requesting a reconsideration of the determination of 26 November 2008?
Although the applicant’s solicitors initially requested a reconsideration of the respondent’s determination of 26 November 2008 on 4 September 2013, that request was not accompanied by a statement of the reasons therefor and, accordingly, failed to comply with s 78(3)(a) of the SRC Act. The applicant’s solicitors did, however, comply with s 78(3)(a) in their letter of 23 September 2013 to the respondent (in response to the respondent’s letter of 17 September 2013) and, accordingly, the Tribunal is satisfied that a request for reconsideration of the respondent’s determination of 26 November 2008 was, for the purposes of s 78(3) of the SRC Act, “given” to the respondent by that letter (which was emailed to the respondent) on 23 September 2013.
Accordingly, the extension of time required by the applicant for requesting a reconsideration of the determination of 26 November 2008, pursuant to s 78(3) of the SRC Act, is an extension of time until 23 September 2013 – that is, a period of approximately 4 years and 9 months beyond the expiration of the period of 30 days prescribed by 78(3)(b) of the SRC Act.
It is common ground, on the basis of Federal Court of Australia authorities including Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Comcare v A’Hearn (1993) 45 FCR 441, and Comcare v Willems (1996) 70 FCR 244, that the considerations which should primarily be taken into account in exercising the discretion to grant or refuse an extension of time for giving a request for reconsideration of a determination under s 78(3)(b) of the SRC Act, are as follows:
·whether an acceptable explanation for the delay in giving the request for reconsideration has been provided;
·the conduct of (relevantly) the applicant in relation to the delay – in particular, whether the applicant “rested on his rights” so as to lead (relevantly) the respondent to believe that the matter was concluded or, alternatively, whether the applicant took action which would make the respondent aware that the finality of its decision was continuing to be contested;
·whether any prejudice has been caused to the respondent by the applicant’s delay or would be caused to the respondent by the grant of the required extension of time to the applicant; and
·the merits of the substantive request.
Furthermore, having regard to the abovementioned authorities, the Tribunal also accepts that the period of 30 days prescribed by s 78(3)(b) of the SRC Act is not to be ignored and that, prima facie, a request for reconsideration made after the expiration of that period will not be entertained, but that, having regard to all relevant considerations, an extension of time for making such a request may appropriately be granted if it is proper, or fair and equitable, in all the circumstances to do so.
The explanation for the delay in giving the request for reconsideration
The applicant’s explanation for the relevant delay is set out in paragraphs 58-96 of his witness statement dated 10 February 2014 (set out in paragraph 23 above) and his oral evidence in relation to that matter is referred to in paragraphs 24–29 above.
In the Tribunal’s opinion the applicant gave his evidence in a sincere and candid manner and it accepts the truthfulness of his evidence in full.
On the basis of the applicant’s evidence, the Tribunal is satisfied, and finds, that:
·in late November/early December 2008 he was informed by the solicitor, who had been handling his compensation claim against the respondent since September 2003, that a determination had been made terminating his compensation payments, and that he then instructed his solicitor to “appeal the decision”;
·the applicant had not then received a copy of the relevant Notice of Determination, dated 26 November 2008, and was not aware of its precise contents, including the condition that a request for a reconsideration of that determination must be given to Allianz within 30 days;
·having instructed his solicitor to “appeal” that determination, he subsequently sought to contact his solicitor, regarding the progress of the “appeal” on numerous occasions during 2009 but was merely informed that the “appeal” was still “in the process” and that Allianz was “being uncooperative”;
·in early 2010 the solicitor was continuing not to respond to his request for information regarding the progress of the “appeal” and, by April 2010, he had formed the view that the solicitor was not satisfactorily representing him in relation to the “appeal”;
·at a chance meeting with the solicitor in public in May 2010, he requested the solicitor to hand his file to him and to invoice him, and the solicitor complied with that request;
·upon perusing his file later that month he saw the Notice of Determination, dated 26 November 2008, for the first time and then became aware of the 30-day period for requesting a reconsideration;
·during the period from 25 May 2010 to August 2010 he communicated with the Australian Maritime Safety Authority (“AMSA”) seeking advice and assistance in pursuing his compensation matter;
·in that period he also sought advice from the Maritime Union and The Law Society of Western Australia and was referred to various firms of solicitors but he was unable to arrange representation by any of those solicitors;
·he did not personally contact Allianz regarding the Notice of Determination, dated 26 November 2008, at any time;
·in October 2010 he visited a Master Mariner friend in Bali, taking his compensation file with him, and sought his advice;
·in that month he was diagnosed with basal cell carcinoma and underwent an operation, followed by 5 months of radiation therapy;
·in March 2011 he drafted a Statement of Facts regarding his injury and subsequent compensation history and sent it to AMSA with a request that it investigate the matter;
·he sought assistance from Seacare/Comcare in July 2011;
·he was subsequently referred to his present solicitor who has represented him from August 2011 to date.
As set out in paragraphs 15–18 above, the applicant’s solicitors wrote to Allianz on 18 August 2011, 18 November 2011, 1 December 2011, and 19 December 2011, regarding the applicant’s compensation matter, and the Tribunal accepts that they did not receive a reply from Allianz to any of those letters.
The applicant’s solicitors next wrote to Allianz on 4 September 2013 thereby, for the first time, requesting a reconsideration of the determination of 26 November 2008, and, following a response from Allianz by letter of 17 September 2013 seeking reasons for that request and an explanation for the delay in making that request, the solicitors, by letter dated 23 September 2013, provided those reasons and such explanation to Allianz (see paragraphs 19–21 above).
As regards the delay of approximately 4 years and 9 months, from late December 2008 (upon the expiration of the 30-day period prescribed by s 78(3)(b) of the SRC Act) to 23 September 2013, in giving to Allianz the applicant’s request for a reconsideration of its determination of 26 November 2008, the Tribunal comments as follows:
·throughout the period from late December 2008 to May 2010 the applicant’s ongoing compensation matter was in the hands of his (then) solicitor (who had represented him in that matter since September 2003) who, through no fault of the applicant, generally failed to progress that matter and failed to keep the applicant informed about that matter;
·in May 2010 the applicant, having lost confidence in his (then) solicitor’s ability to represent him satisfactorily, obtained his compensation file from that solicitor and promptly set about making enquiries of, and seeking assistance from, AMSA, the Maritime Union, The Law Society of Western Australia, and various firms of solicitors, and Seacare/Comcare during the period May 2010 – July 2011, but to no ultimate effect in progressing his compensation matter with the respondent;
·the Tribunal, having regard to the applicant’s previous complete reliance on legal representation in relation to his compensation matter, and his lack of personal experience and his perceived lack of capability in dealing with such matters, regards it as understandable that he sought to obtain advice and legal representation in relation to that matter rather than contact Allianz directly himself;
·the applicant eventually succeeded in obtaining fresh legal representation regarding his compensation matter with the respondent in August 2011, and throughout the period from August 2011 to September 2013 the applicant’s compensation matter was in the hands of those solicitors who wrote various letters to Allianz regarding that matter in the period August–December 2011 (see paragraphs 15–18 above), without satisfactory effect, before ultimately requesting a reconsideration of the determination of 26 November 2008 on 4 September 2013.
In short, for most of the relevant period from late December 2008 to 23 September 2013 – namely, from December 2008 to May 2010 and from August 2011 to September 2013 – the applicant’s compensation matter with the respondent was being handled by firms of solicitors to whom he had fully entrusted the handling of that matter on his behalf, and in the intervening period – namely, from May 2010 to July 2011 – the applicant made substantial efforts to obtain advice and assistance from appropriate bodies with a view to pursuing his compensation matter with the respondent. As regards those parts of the relevant period when the applicant’s compensation matter was in the hands of his solicitors, the Tribunal is satisfied that the applicant did not himself contribute to the delay on the part of those solicitors in actively pursuing that matter and, in its opinion, the delay on the part of those solicitors ought not to be visited upon the applicant: see A’Hearn v Comcare (1993) 18 AAR 22 at 26; Comcare v A’Hearn (1993) 45 FCR 441 at 443. As regards the abovementioned period from May 2010 to July 2011 when the applicant was without legal or other representation and his compensation matter was not in the hands of solicitors, the Tribunal is satisfied that the applicant took appropriate action with a view to seeking assistance and securing legal representation in order to pursue that matter.
Having regard to the abovementioned considerations, the Tribunal is satisfied that the applicant has provided a reasonable and acceptable explanation for the delay from late December 2008 to 23 September 2013 in giving to Allianz a valid request for reconsideration of its determination of 26 November 2008.
The conduct of the applicant in relation to the delay
The applicant has acknowledged that, in the period from May 2010 to July 2011 when he was without legal or other representation, although he contacted various bodies with a view to seeking advice and legal representation in relation to his compensation matter, he did not contact Allianz or the respondent in relation to that matter.
The applicant’s former solicitor, had, however, on 2 July 2009, given to Allianz a request for reconsideration of its determination of 26 November 2008 (T56). It is common ground that neither Allianz nor the respondent responded to that request or made a reconsideration decision following receipt of that request. According to the evidence before the Tribunal, the next contact made with Allianz about the applicant’s compensation matter was a letter dated 18 August 2011 from his new solicitors, followed up by letters dated 18 November 2011, 1 December 2011 and 19 December 2011 from those solicitors seeking replies to their earlier letters, following which the initial request for reconsideration was made to Allianz by those solicitors by letter dated 4 September 2013 (see paragraphs 15 –19 above).
Having regard to the fact that Allianz was made aware on 2 July 2009 by the applicant’s former solicitor that its determination of 26 November 2008 was being contested by the applicant, and that it was subsequently made aware on 18 August 2011 that the applicant’s compensation matter was then being pursued by his new solicitors, it cannot reasonably be said that the applicant “rested on his rights” throughout the relevant period of delay from late December 2008 to 23 September 2013. The Tribunal notes, furthermore, that, although Allianz was made aware, by the abovementioned request for reconsideration by the applicant’s former solicitor on 2 July 2009 and the series of letters in the period August – December 2011 from the applicant’s new solicitors, that the applicant’s compensation claim was continuing to be pursued, Allianz (the Tribunal is satisfied) did not respond to that request for reconsideration or that correspondence.
As previously mentioned, however, the applicant did not contact Allianz or the respondent in the period from May 2010 to July 2011 (when he was without legal or other representation) and, accordingly, it must be accepted that, although (as previously mentioned) he took considerable action in that period with a view to seeking advice and legal representation in order to pursue his compensation matter, he did not take any action in that period that would make Allianz or the respondent aware that he was continuing to contest the finality of the determination of 26 November 2008. Although that consideration militates against the grant of the required extension of time to request a reconsideration of the determination of 26 November 2008, the Tribunal, having regard to:
·its opinion that it is understandable in the circumstances that the applicant sought to obtain advice and legal representation in relation to his compensation matter rather than to contact Allianz directly himself (see paragraph 46 above); and
·the matters referred to in paragraphs 50–51 above;
regards it as appropriate to give little weight to that consideration.
The merits of the substantive request
Before considering the matter of prejudice to the respondent, it is appropriate to consider the merits of the applicant’s request for reconsideration of the determination of 26 November 2008.
The terms of the determination of 26 November 2008 were set out in paragraph 12 above. The terms of the request for reconsideration of that determination, which was given to Allianz by the applicant’s solicitors by letter dated 23 September 2013, were set out in paragraph 21 above.
As regards the terms of the determination of 26 November 2008, the statement of reasons (comprising paras 1–9) is cursory, to say the least. The critical reason stated for the determination that the applicant “is not entitled to receive compensation for incapacity under Part 2 Division 3 of the SRC Act from 1 July 2008 to date during periods he has not been employed by Svitzer offshore Pty Ltd” is set out in para 8 as follows:
“ The Seafarer has continued to be employed on a casual employment basis by Svitzer, and currently there is no casual work available with Svitzer. Taking into account the Seafarer’s qualifications and experience it is considered that there is suitable employment available for the Seafarer external to Svitzer.”
The final sentence in paragraph 8 consists merely of an assertion that suitable employment is available to the applicant. There is no reference to, let alone discussion of, the kinds of “suitable employment” (as defined in s 3 of the SRC Act) that were considered to be available to the applicant, or the amount per week that the applicant was “able to earn in suitable employment”, pursuant to ss 31 and 32 of the SRC Act.
Having regard to the deficiencies of the statement of reasons for the determination of 26 November 2008, and to the reasons for requesting a reconsideration of that determination as set out by the applicant’s solicitors in their letter of 23 September 2013 (see paragraph 21 above), the Tribunal is satisfied that the request for reconsideration of the determination of 26 November 2008 has great merit. It is unnecessary, and it would be inappropriate, for the Tribunal to express an opinion on what the outcome of such reconsideration should be. It is sufficient, for present purposes, that the Tribunal regards the reasons for requesting that reconsideration (as stated in the abovementioned letter of 23 September 2013) as appropriate and, accordingly, that request as meritorious.
Prejudice to the respondent
The respondent cited Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 (per McHugh J):
“ The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’: R v Lawrence [1982] AC 510 at 517, per Lord Hailsham of St Marylebone LC. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo (1972) 407 US 514 at 532, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”
More specifically, the respondent, in its Statement of Facts, Issues and Contentions, contended as follows:
“4.7 Should the extension of time be granted, the substantive issue to be considered is the applicant’s entitlement to incapacity payments from 1 July 2008. The applicant turned 65 years of age [in] June 2013. Accordingly, the period that will be considered is from 1 July 2008 to … June 2013 (‘the relevant period’). This will involve consideration of whether the applicant suffered an ‘incapacity for work’ during the relevant period and, if so, the extent of any compensation payable to him. The Respondent contends that while the Applicant may have ‘a case’ he does not have a ‘good case of succeeding in the action’. This contention is made on the basis that:
(a)The Applicant completed the Master Class [sic] course in September 2005 (T41).
(b)By November/December 2005, the rehabilitation provider closed their file on the basis that the Applicant had returned to full duties and working arrangements that his new qualification required of him.
(c)On 21 October 2008 the Applicant’s former solicitors requested that the Applicant’s incapacity payments be reinstated on the basis that he had only worked 10 days since 1 July 2008. Accordingly, his reason for him seeking for his incapacity payments to be reinstated may not have been related to an incapacity for work but rather an unavailability of shifts.
(d)The Applicant worked after 1 July 2008, specifically from 21 August 2008 to 22 October 2009 and from 1 February 2010 to 30 June 2010 (see documents produced under summons by Assure Programs).
(e)The Applicant’s incapacity for work, if he had one, was more likely to have been the result of a psychological condition (see documents produced under summons by Delta Health Services and Dr Stephen Proud and the ASFIC filed on 3 October 2014) or as a result of one of his other ailments (ear surgery and pneumonia in December 2009; heart and chest issues in January 2010; an ulcerated mass in his left ear in September to November 2010).
4.8The prejudice caused to the Respondent by the delay in this case is substantial. The substantive issue in respect of the extent to which any compensation is payable to the applicant if an incapacity to work is established involves determining whether he had had [sic] a deemed ability to earn which should be deducted from his normal weekly earnings. A vocational assessment report (dated 11 July 2014) and a supplementary vocational assessment report (dated 15 [sic] August 2014) were obtained from Ms Michelle Woolerson, APM Rehabilitation consultant to assist with determining this issue. These reports demonstrate the prejudice that is caused to the Respondent as a result of the delay due to information in relation to whether or not there were actually any jobs as a Ship’s Master during the relevant period is no longer available [sic]”.
As regards the respondent’s contention in para 4.7, the Tribunal notes that that contention appears to be addressed to the merits of the applicant’s substantive claim for compensation by way of incapacity payments rather than specifically to the merits of the applicant’s request for reconsideration of the determination of 26 November 2008. In any event, as regards the applicant’s substantive claim, the respondent acknowledges that the applicant “may have ‘a case’” and does not contend that the applicant’s case is hopeless or unarguable. On the contrary, the respondent accepted, in oral submissions, that the applicant “clearly has an arguable case that there may have been an entitlement to compensation for incapacity” in the period from July 2008.
The respondent’s contention in para 4.8 is, however, more to the point. An appropriate reconsideration of the determination of 26 November 2008 should (unlike that determination itself) have regard to evidence of the kinds of “suitable employment” that were available to the applicant in the period July 2008 – June 2013 (“the relevant period”) and the amount per week that the applicant would have been able to earn in such suitable employment in that period. The Tribunal notes, however, that the APM Labour Market Assessment Report, dated 11 July 2014, commissioned by the respondent’s solicitors, does contain substantial information regarding kinds of suitable employment for the applicant during the relevant period and the amount per week that the applicant could reasonably be expected to earn in such employment in the relevant period (see paragraph 30 above). The Tribunal also notes, furthermore, that the APM letter of 25 August 2014 (see paragraph 31 above) indicates that, in relation to the availability of the specified kinds of suitable employment in the relevant period, data regarding relevant job advertisements (as opposed to job vacancies) in the relevant period are presently unavailable.
The Tribunal, however, notes the report of Professor Mulvey, dated 23 October 2014, which casts doubt on the validity of the conclusion in the abovementioned APM letter of 25 August 2014 regarding the present lack of data relating to the availability of the specified kinds of suitable employment in the relevant period. The Tribunal also notes that Professor Mulvey criticizes the methodology adopted in the abovementioned APM Labour Market Research Report, dated 11 July 2014, for determining the award wages for each of the specified kinds of suitable employment in the relevant period.
Having regard to the abovementioned APM Labour Market Research Report and letter, and the abovementioned report of Professor Mulvey, the Tribunal is satisfied that:
·there is presently available substantial material regarding the kinds of “suitable employment” for the applicant in the relevant period;
·reliable specific material regarding the availability of each of those kinds of suitable employment in the relevant period, and the amount per week that the applicant would have been able to earn in each of those kinds of suitable employment in the relevant period, is presently obtainable by use of the appropriate research methodology.
At the hearing the respondent made a further submission regarding prejudice, namely, that, if a timely request for reconsideration of the determination of 26 November 2008 had been made, because the applicant was then under the age of 65 (and did not turn 65 until June 2013) and assuming that incapacity payments continued to be payable to the applicant, the respondent would then have had the opportunity of mitigating the amount of incapacity payments payable to the applicant by recommencing his rehabilitation or assisting him to find suitable employment in that period. The respondent submitted that, having now lost that opportunity, it would suffer “considerable prejudice” if the applicant’s claim for payment of incapacity payments in the relevant period was now allowed to proceed by the grant of the required extension of time. The Tribunal is not persuaded by that submission. It seems to the Tribunal that that submission involves speculation and appears to assume that, if the required extension of time were granted, and a “reviewable decision” was made by Allianz or the respondent on reconsideration of the determination of 26 November 2008, it would be determined, either by that reviewable decision or by the Tribunal on review of that reviewable decision, that incapacity payments were payable to the applicant in the relevant period. For the purpose of presently deciding whether it is appropriate to grant to the applicant the required extension of time for requesting a reconsideration of the determination of 26 November 2008, the Tribunal is not prepared to make that assumption. Furthermore, as regards the respondent’s submission that, had a timely request for reconsideration of the determination of 26 November 2008 been made by the applicant, it would then have been in a position to manage his claim for incapacity payments by recommencing his rehabilitation or assisting him to find suitable employment in the relevant period, the Tribunal notes that a request for reconsideration of that determination was in fact made by the applicant’s former solicitor on 2 July 2009, to which (it is common ground) neither Allianz nor the respondent replied. Moreover, on the basis of the applicant’s evidence (which the Tribunal accepts) regarding the cessation of his rehabilitation in 2005 and the “sporadic” casual employment provided to him by the respondent until 8 September 2008 (but not thereafter), the Tribunal seriously doubts whether the respondent would have taken any action to resume the applicant’s rehabilitation or assist him to find suitable employment in the relevant period, had a timely request for reconsideration of the determination of 26 November 2008 been made by him.
Having regard to the considerations discussed in paragraphs 59–63 above, the Tribunal is not satisfied that significant prejudice would be caused to the respondent by the grant to the applicant of the required extension of time for requesting a reconsideration of the determination of 26 November 2008.
Conclusion
Having regard to the considerations discussed in paragraphs 40–64 above, the Tribunal concludes that, on balance, it would be fair and equitable in the circumstances of the present case for the required extension of time for requesting a reconsideration of the determination of 26 November 2008 to be granted to the applicant. The Tribunal has come to that conclusion primarily on the bases that:
·although the applicant’s request for a reconsideration of that determination was given to the respondent approximately 4 years and 9 months beyond the expiration of the 30-day period prescribed by s 78(3)(b) of the SRC Act, the applicant has given a reasonable and acceptable explanation for that very substantial delay;
·the applicant’s substantive request for a reconsideration of that determination has great merit; and
·the Tribunal is not satisfied that significant prejudice would be caused to the respondent by the grant to the applicant of the required extension of time for requesting a reconsideration of that determination.
Decision
For the above reasons, the decision under review is set aside and the matter is remitted to the respondent for reconsideration in accordance with the direction that the respondent treat the applicant’s request, given on 23 September 2013, for a reconsideration of the respondent’s determination of 26 November 2008 as a request made in accordance with s 78(3) of the SRC Act.
I certify that the preceding 66 (sixty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop. .............[sgd D Brodie]....................................
Administrative Assistant
Dated 5 December 2014
Date of hearing 13 November 2014 Counsel for the Applicant Mr J Fiocco Solicitors for the Applicant Slater and Gordon Counsel for the Respondent Mr B Dube Solicitors for the Respondent Sparke Helmore
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