Chapter 5: Significant Administrative Appeal Tribunal decisions and Court judgements
- 5.1 Administrative Appeals Tribunal matters and Court judgements
- 5.2 Court judgements and AAT decisions relevant to Seacare 1994 – 2004
In 2003 – 04 there are three matters to report, all arising in the Administrative Appeals Tribunal
(AAT). A list of all Tribunal and Court decisions and judgements relevant to Seacare scheme legislation over the period 1994 to 2004 is included at
Section 5.2.
5.1 Administrative Appeals Tribunal matters
5.1.1 Blackney and Total Marine Services Pty
Ltd [2004] AATA 269 (15 March 2004)
This case concerns the consequences of an injury suffered by the applicant on 31 July 1999, specifically whether the applicant was injured and whether the effects of the injury extended beyond April 2001, when the respondent had denied any liability to the applicant under the Seafarers Rehabilitation and Compensation Act 1992 (the Act).
The applicant sought a review of a decision made by the respondent on 21 September 2001 which denied liability for the payment of “weekly and associated benefits”.
The respondent contends that from March 2000 the applicant was not in fact incapacitated for normal duties or, if he was, any incapacity was not a consequence of the July 1999 injury. The principal issue was whether that contention was correct.
The Tribunal determined that the decision made by the delegate of the respondent on 21 September
2001 be set aside. Further, that the matter be referred to the respondent for reconsideration and re-determination in accordance with the directions that the applicant: (i) was incapacitated for work as a result of the injury suffered on 31 July 1999 from 5 December 2000 until 3 January 2002; and (ii) is entitled to compensation pursuant to sections 26, 28, 31 and 50 of the Act.
5.1.2 Smith and Caltex Australian Petroleum Pty Ltd [2003] AATA 1230
(8 December 2003)
These proceedings reviewed the decision of the respondent dated 31 March 2002, which reaffirmed the decision of the respondent of 31 December 2001, that the respondent had no liability under the Seafarers Rehabilitation and Compensation Act 1992 (the Act) in connection with a claim for compensation made on 16 March 2001 by the applicant.
The issues before the Tribunal related to whether injuries suffered by the applicant on 19 September
1985 had caused ongoing incapacity and, if so, whether the applicant had suffered loss of wages due to being partially incapacitated and having to work on restricted duties, hence earning lower wages. Further, that from October 1998 and ongoing, the applicant is totally incapacitated for work resulting from the injuries suffered on 19 September 1985.
The Tribunal was not satisfied that the applicant still suffered the effects of the 1985 incident and accordingly determined that there could be no further liability accepted. The decision under review was affirmed.
5.1.3 Capka and BHP Petroleum Pty Ltd [2003] AATA 845 (28 August 2003)
In this case the applicant applied for review of the decision made by the respondent on 26 May
1998 disallowing his claim for compensation under the Seafarers Rehabilitation and Compensation
Act 1992 (the Act). The issue before the Tribunal was whether the respondent was liable to pay compensation to the applicant in accordance with the Act in respect of his alleged mental condition.
The Tribunal was satisfied that the applicant contracted a mental ailment during his period of employment on the respondent’s vessel and that he was suffering from that ailment on 21 August 2000 when he ceased working on the vessel and has continued to suffer from major depression from that time onwards. Accordingly, the Tribunal found the applicant’s current major depression to be a “disease” and an “injury” as defined in s3 of the Act. It also found that the applicant’s injury resulted in his total incapacity to engage in any work from 21 August 2000 and that his total incapacity is ongoing at present.
The Tribunal decided to set aside the respondent’s decision of 26 May 1998 and, in substitution thereof, decided that the respondent is liable to pay compensation to the applicant in accordance with the Act, in respect of a mental injury that has resulted in the applicant’s continuing total incapacity for work from 21 August 2000.
5.2 Court judgments and Administrative Appeals Tribunal (AAT) decisions relevant to Seacare scheme legislation, 1994 to June 2004.
High Court of Australia
Smith v ANL Ltd [2000] HCA 58
(16 November 2000)
Federal Court of Australia – Full Court
Cook v ASP Ship Management [2001] FCA 598
(16 February 2001)
Broken Hill Proprietary Co Ltd v Peter Edward
Mathiassen [1997] FCA 1525 (23 December
1997)
Tiwi Barge Services Pty Ltd v Julie Ann Stark
[1997] FCA 874 (3 September 1997)
Associated Steamships Pty Ltd v Norman Hore
(1995) NO.798/95 (2 November 1995)
Court of Appeal – WA
Bowen Buchbinder Vilensky (A Firm) v Smith
[2001] WASCA 108 (22 March 2001)
Stephen Paul Smith & Ors v Australian National
Line Ltd & Anor [1998] WASCA 316 (18 November
1998)
Federal Court of Australia – Single Judge
Pacific Manning Company Pty Ltd v Barton [2003] FCA 498 (22 May 2003)
Cook v ASP Ship Management [2000] FCA 1393
(4 October 2000)
Howard Smith Industries Pty Ltd v Richards [1999] FCA 1144 (3 September 1999)
ASP Ship Management Pty Ltd v Wood [1999] FCA
851 (25 June 1999)
Alan Esam v ASP Ship Management [1998] FCA
1129 (10 September 1998)
Total Marine Services Pty Ltd v Michael Kiely
[1998] FCA 153 (4 March 1998)
Broken Hill Proprietary Co Ltd v Andrew Lionel
Finestone [1997] FCA (31 October 1997) Terence Maxwell Jessop v Broken Hill Proprietary Co Ltd [1997] FCA 1036 (2 October 1997) Broken Hill Proprietary Co Ltd v Peter Edward Mathiassen [1997] FCA 1056 (14 August 1997)
Australian Offshore Services v John Collins [1996] FCA 1023 (22 November 1996)
Supreme Court – WA
Bowen Buchbinder Vilensky (A Firm) v Smith
[2000] WASC 242 (29 September 2000)
Compensation Court – NSW
Cramp v Commonwealth & Anor [1995] NSWCC
27; (1995) 12 NSWCCR 312 (14 September 1995)
Anderson v Howard Smith Industries Pty Ltd
[1995] NSWCC 21; (1995) 11 NSWCCR 724 (4 August 1995)
Administrative Appeals Tribunal
Blackney and Total Marine Services Pty Ltd [2004] AATA 269 (15 March 2004)
Smith and Caltex Australian Petroleum Pty Ltd
[2003] AATA 1230 (8 December 2003)
Capka and BHP Petroleum Pty Ltd [2003] AATA
845 (28 August 2003)
Lawson and Stateships [2003] AATA 389
(28 April 2003)
Cook and ASP Ship Management [2003] AATA 372
(24 April 2003)
Barton and Pacific Manning Company Pty Ltd
[2003] AATA 92 (31 January 2003)
Engelbrecht and BHP Transport and Logistics Pty
Ltd [2002] AATA 1127 (1 November 2002)
Jione and BHP Billiton Petroleum Pty Ltd [2002] AATA 878 (2 October 2002)
Nicholas and Norwest Shipping [2002] AATA 806
(13 September 2002)
Dorrans and CSR Shipping Group [2002] AATA
648 (2 August 2002)
Lavers and BHP Transport Pty Ltd [2002] AATA
529 (28 June 2002)
Cowe and Tidewater Port Jackson Marine Pty Ltd
[2001] AATA 674 (26 July 2001)
Robertson and CSR Shipping [2001] AATA 325
(2 April 2001)
Chiavaro and TT Line Co Pty Ltd [2001] AATA 78
(7 February 2001)
Maher and Tidewater Port Jackson Marine Pty Ltd
[2000] AATA 610 (21 July 2000)
Tremaine and Australian Offshore Services [2000] AATA 526 (28 June 2000)
Taylor and ASP Ship Management Ltd [2000] AATA
254 (10 March 2000)
Hughes and Tidewater Port Jackson Marine Pty Ltd
[1999] AATA 577 (6 August 1999)
Zutt and Total Marine Services Pty Ltd [1999] AATA
313 (13 May 1999)
Steven Sidney Wood and ASP Ship Management
Pty Ltd [1998] AATA 1002 (24 December 1998)
Finestone and Broken Hill Proprietary Co Ltd
[1998] AATA 832 (8 October 1998)
Barry Lionel Lawson and Stateships and Anor
[1998] AATA 454 (26 June 1998)
Shamus John O’Reilly and Australian Offshore
Services [1998] AATA 246 (8 April 1998) Terence Patrick Godfrey and Tidewater Port Jackson Marine Pty Ltd [1998] AATA 84
(13 February 1998)
Alan Esam and ASP Ship Management [1998] AATA 44 (4 February 1998)
James Paul Richards and Howard Smith Industries
Pty Ltd [1998] AATA 40 (2 February 1998) James Stewart Armstrong and Howard Smith Industries Pty Ltd [1998] AATA 9
(16 January 1998)
Jack Louis Child and Howard Smith Industries Pty
Ltd [1998] AATA 5 (9 January 1998)
Gabriella Jean Pisconeri (on behalf of Kimberley and Emma Collins) and Tidewater Port Jackson Marine (1997) AAT No 12487 (11 December
1997)
Megan Louise Boyd v ASP Ship Management
(1997) AAT No.12350 (28 October 1997)
Colin Simon Lane v ASP Ship Management (1997) AAT No. 12348 (28 October 1997)
Cameron v Australian Tankships Pty Ltd (1997) AAT No. 12117 (13 August 1997)
Robertson v ASP Ship Management (1997) AAT No. 12117 (13 August 1997)
Steven George Bingham v ASP Ship Management
(1997) AAT No. 11957 (18 June 1997)
George Nunez v Tidewater Port Jackson Marine Pty
Ltd (1996) AAT No.10706 (2 February 1996) Kevin Durnian v Westham Dredging Company Pty Ltd (1995) AAT No. 10388 (31 August 1995) Norman Carroll Hore v Union Shipping Company Australia (1995) AAT No. 10157 21 AAR 291 (28
April 1995)
David Rodney Rowett v Australian Offshore
Services (1994) AAT No.9618 (8 July 1994)
