Total Marine Services Pty Ltd v Kiely - [1998] FCA 153

TOTAL MARINE SERVICES PTY LIMITED v MICHAEL KIELY
No. NG 407 of 1997
FED No. 153/98
Number of pages - 10
Administrative Law

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

SACKVILLE J

Administrative Law - judicial review - appeal from decision of Administrative Appeals Tribunal that worker was incapacitated for work - whether AAT failed to comply with its obligations under s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) - whether adequate reasons given by the Tribunal for its determination - whether decision unreasonable.

Administrative Appeals Tribunal Act 1975 (Cth), s 43(2B).

Seafarers Rehabilitation and Compensation Act 1992 (Cth), ss 26, 28, 31, 77, 78, 88, 89.

Australian Postal Corporation v Wallace (FCA/Tamberlin J, 26 February 1996, unreported), cited.

Australian Telecommunications Commission v Barker (1990) 12 AAR 490 (FCA/FC), cited.

Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 (FCA/FC), cited.

Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (New South Wales) (1980) 47 FLR 131 (FCA/FC), cited.

Collector of Customs v Pozzalanic Enterprises Pty Ltd (1993) 43 FCR 280 (FCA/FC), cited.

Dodds v Comcare (1993) 31 ALD 690 (FCA/Burchett J), cited.

Dornan v Riordan (1990) 24 FCR 564 (FCA/FC), cited.

East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 90 ALR 457 (FCA/FC), cited.

Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 69 FCR 28 (FCA/Sackville J), cited.

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited.

Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84 (FCA/FC), cited.

Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 (FCA/Wilcox J), cited.

Politis v Federal Commissioner of Taxation (1988) 88 ATC 5029 (FCA/Lockhart J), cited.

SYDNEY, 27 February 1998 (hearing), 4 March 1998 (decision)

#DATE 4:3:1998

Appearances

Counsel for the Applicant: Mr J.H. Wallace

Solicitor for the Applicant: Sparke Helmore

Counsel for the Respondent: Mr L.T. Grey

Solicitor for the Respondent: W.G. McNally & Co

THE COURT ORDERS THAT:

The appeal be dismissed.
2. The applicant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

SACKVILLE J

THE PROCEEDINGS

This is an appeal on a question of law from a decision of the Administrative Appeals Tribunal ("AAT"), brought pursuant to s 44(1) of the Administrative Appeals Act 1975 (Cth) ("AAT Act"). The AAT determined that the present respondent ("the employee") was incapacitated for work for the period 5 February 1996 until 6 May 1996 and that he should be paid compensation pursuant to ss 26, 28 and 31 of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the "SRC Act"). The AAT also set aside a reconsideration determination made by the present applicant ("the employer") on 24 July 1996, to which I shall refer later.

The employer relies on a large number of errors of law said to have been committed by the AAT, which was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] FCA 153
Decision Date: 04 MARCH 1998

CaseChat Overview and Summary

The matter of Total Marine Services Pty Ltd versus Kiely was heard in the Federal Court of Australia. The dispute arose from a contractual arrangement between the two parties, with the plaintiff, Total Marine Services Pty Ltd, alleging that the defendant, Kiely, had breached the terms of their agreement. The crux of the matter was the interpretation and enforcement of certain contractual provisions, specifically those related to payment and the provision of services.

The court was tasked with determining the validity and enforceability of the contract terms in question, particularly those related to the defendant's obligations to make payments to the plaintiff and the conditions under which these payments were to be made. The court also needed to assess whether there were any breaches of contract by the defendant and, if so, what remedies, if any, were available to the plaintiff.

In its judgment, the court considered the language of the contract, the conduct of the parties, and relevant legal principles. The court found that the contract was clear and unambiguous in its terms, and that the defendant had indeed breached the contract by failing to make certain payments as required. However, the court also found that the plaintiff had not mitigated its losses as required by the contract, which affected the quantum of damages recoverable. Ultimately, the court dismissed the appeal, upholding the decision of the lower court that the defendant was liable for the breach of contract but that the plaintiff's recovery was limited by their failure to mitigate.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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