Wood and ASP Ship Management Pty Ltd - [2010] AATA 437

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION

[2010] AATA 437

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2007/3986

GENERAL DIVISION )
ReSteven Sidney Wood

Applicant

And ASP Ship Management Pty Ltd

Respondent

DECISION

TribunalMr R P Handley, Deputy President
Date11 June 2010
PlaceSydney

Decision The Tribunal sets aside the decision under review and:

(a)    The Tribunal finds that for the purposes of s 13(6) of the Seafarers Rehabilitation and Compensation Act 1992 (the Act), the Applicant belonged to a class of employees namely that of ‘catering assistant’, a class that continues to exist in the ‘offshore’ shipping industry, albeit not in companies operating in the ‘bluewater’ shipping industry’ such as the Respondent. The parties are encouraged to come to an agreement on the annual percentage increase of normal weekly earnings for the class of catering assistant over the relevant period. In the absence of agreement, the Tribunal will invite further submissions from the parties on what this figure should be with a view to making the requisite determination.
(b)    Section 34 of the Act applies for the purpose of calculating the Applicant’s entitlement to incapacity payments commencing on 10 October 1997. The parties are encouraged to come to an agreement on the application of s 34. In the absence of agreement, the Tribunal will invite further submissions from the parties on this issue with a view to making the requisite determination.
(c)    The Respondent is to pay the Applicant’s costs in these proceedings pursuant to s 92(2) of the Act.
....................[sgd]...................
Mr R P Handley
  Deputy President

CATCHWORDS

COMPENSATION – seamen's compensation - superannuation – lump sum benefit - proper calculation and adjustment of weekly earnings – determination of the class of employees to which applicant belonged – relevant matters for consideration - decision under review set aside and proper calculation of adjustment remitted to parties

…

RELEVANT ACT

Seafarers Rehabilitation Compensation Act 1992: ss 13(6), 34, 35, 36, 92(2)

…

CITATIONS

Wood v ASP Ship Management Pty Ltd (2007) 94 ALD 597; [2007] FCA 459
ASP Ship Management Pty Ltd v Wood [2007] FCAFC 142; (2007) 161 FCR 429; (2007) 97 ALD 581
Lees v Comcare (1999) 56 ALD 84; (1999) 29 AAR 350; [1999] FCA 753

…

REASONS FOR DECISION

11 June 2010

Mr R P Handley, Deputy President

Steven Wood was a seafarer who was employed by ASP Ship Management Pty Ltd (ASP) as a catering attendant (also variously described as a catering assistant or assistant caterer) until he became incapacitated for work as a result of the onset of viral cardiomyopathy connected with his employment. He ceased work on 25 January 1997 and was medically discharged on 2 July 1997. He has not worked since.
Mr Wood made a claim for compensation for incapacity which was declined by ASP. He applied to the Tribunal for a review of this decision which, on 24 December 1998, determined that his condition was work-related and that ASP was liable to pay incapacity payments together…

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: [2010] AATA 437
Decision Date: 11 June 2010

CaseChat Overview and Summary

The appeal before the court involved Wood and ASP Ship Management Pty Ltd, and centred on a dispute regarding seamen’s compensation under the Seafarers Rehabilitation Compensation Act 1992. The matter was before the court following an earlier decision that required reconsideration due to perceived errors in the calculation of Wood's lump sum benefit. The Federal Court of Australia was tasked with reviewing the determination made by the primary judge, focusing on the proper calculation and adjustment of Wood’s weekly earnings, and the classification of the employee to which he belonged.

The court had to decide whether the primary judge correctly interpreted and applied the relevant sections of the Act in determining the compensation payable to Wood. This involved examining the proper calculation of the weekly earnings and the appropriate adjustment of the lump sum benefit. Additionally, the court needed to address the classification of Wood as an employee to ensure the correct application of the statutory provisions. The court also had to consider the factors relevant to determining the appropriate class of employees to which Wood belonged, as this classification directly affected the compensation calculation.

The court found that the primary judge’s determination was flawed and set it aside. It was held that the primary judge had not correctly considered the relevant matters in determining the proper adjustment of Wood's weekly earnings. The Federal Court remitted the matter back to the parties to correctly calculate the adjustment and determine the proper compensation payable to Wood. The court emphasised that the classification of employees and the application of the statutory provisions were critical in making the correct determination. The proper calculation of the weekly earnings and the adjustment of the lump sum benefit were also key aspects that needed careful consideration.

The final orders of the court included setting aside the primary judge’s determination and remitting the matter back to the parties for the proper calculation of the adjustment and determination of the compensation payable to Wood. The court made it clear that the proper application of the Seafarers Rehabilitation Compensation Act 1992 was essential in reaching a fair and accurate outcome.

Orders