CHAPTER 5: SIGNIFICANT ADMINISTRATIVE APPEALS TRIBUNAL DECISIONS AND COURT JUDGMENTS RELEVANT TO SEACARE SCHEME LEGISLATION
5.1 Administrative Appeals Tribunal matters
5.2 Court judgments and Administrative Appeals Tribunal decisions relevant to Seacare scheme legislation, 1994 to June 2005.
There are two matters to report from 2004-05, both arising in the Administrative Appeals Tribunal (AAT). A list of all AAT and Court decisions and judgements relevant to Seacare scheme legislation over the period 1994 to June 2005 is provided at Section 5.2.
5.1 Administrative Appeals Tribunal matters
to deny were reviewable before the Tribunal. At question were whether the two ships on which the seafarers had sustained their injuries were prescribed ships, and whether the respondents were ‘operators’ within the meaning of the Seafarers Act. In particular, could this be established according to the entity which had operated the vessels at the material time.
Both vessels had been in the service of third-party companies that had entered into agreements with these companies to employ the ships’ crews (manning agents). It had been previously determined that neither one or the other company associated with either ship could be found to be operating the vessel, as day to day activities had been managed by one company with the other directing the ship’s operations.
The Tribunal found that despite not controlling the day to day activities of the vessels, each vessel had been “operated” by companies in association with the commercial or technical managers of the vessels, insofar as the Master of each vessel was employed by the companies and ‘operated’ the vessels and that consequently, the Seafarers Act was applicable and the decisions before the Tribunal were reviewable.
Both vessels had been covered by alternative workers’ compensation arrangements. One vessel had entered into a contractual obligation to meet the Seafarers Act compensation obligations. Both companies had received prior advice that their vessels were not ‘prescribed ships’.
The consequence of the decision of the AAT has been to extend the definition of ‘operator’ to include manning agents and the vessels and seafarers to which the Seafarers Act may now apply. The decisions of the AAT are set down to be heard on appeal by the Full Federal Court in November 2005.
5.1.1 Gibson and ASP Ship Management Pty Ltd [2004] AATA 947 (13 September 2004)
In this case, the applicant sought a review of the decision made by the respondent to deny liability under the Seafarers Rehabilitation and Compensation Act 1992 in respect of an injury sustained when the applicant dived into shallow water at Port Melbourne beach on 18 June 2001. The respondent had denied the applicant’s claim for workers’ compensation by virtue of serious misconduct by the applicant, namely being under the influence of alcohol.
The issues before the Tribunal were: first, did the injury occur in the course of the applicant’s employment; secondly, if so, did the applicant disentitle himself to compensation by virtue of wilful misconduct, in this case alcohol consumption, or by the assumption of an abnormal risk of injury. The Tribunal reaffirmed the decision to deny liability. However, it reasoned that the injury occurred outside the course of the applicant’s employment rather than because of serious misconduct.
5.1.2 Bergvall and ASP Ship Management Pty Ltd [2005] AATA 305 (8 April 2005); and Kelk and Mermaid Labour and Management Ltd [2005] AATA 312 (8 April 2005)
This hearing concerned denied workers’ compensation claims made by two seafarers who subsequently applied to the Tribunal for review. The primary issue for consideration was whether the Seafarers Act applied to the seafarers on these vessels, and consequently, whether the decisions
5.2 Court judgments and Administrative Appeals Tribunal decisions relevant to Seacare scheme legislation, 1994 to June 2005.
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)
Federal Court of Australia – Single Judge
Smith v Caltex Australia Petroleum Pty Ltd [2004] FCA 480 (23 April 2004)
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 Management [1998] FCA 1129 (10 September 1998)
Total Marine Services Pty Ltd v Michael Kiely [1998] FCA 153 (4 March 1998)
Broken Hill Pty Co Ltd v Andrew Lionel Finestone [1997] FCA (31 October 1997)
Terence Maxwell Jessop v Broken Hill Proprietary 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)
Federal Magistrates Court of Australia
Cook v ASP Ship Management Pty Ltd and ASP Ship Management Pty Ltd v Cook (no.2) [2004] FMCA 361 (9 June 2004)
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)
Supreme Court – WA
Bowen Buchbinder Vilensky (A Firm) v Smith [2000] WASC 242 (29 September 2000)
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)
Administrative Appeals Tribunal
Bergvall and ASP Ship Management Pty Ltd [2005] AATA 305 (8 April 2005)
Kelk and Mermaid Labour and Management Ltd [2005] AATA 312 (8 April 2005)
Hume and Total Marine Services Pty Ltd [2004] AATA 1135 (20 October 2004)
Pratt and Comcare [2004] AATA 979 (21 September 2004)
Gibson and ASP Ship Management Pty Ltd [2004] AATA 947 (13 September 2004)
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 [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 Pty 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 Compasny 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)
