FEDERAL COURT OF AUSTRALIA

O’Sullivan v P&O Maritime Services Pty Ltd [2017] FCA 47

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal be struck out.

2.    The appeal is dismissed.

3.    The applicant pay the costs of respondent, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCKERRACHER:

THE ISSUE

1    This appeal is said to arise out of the refusal by the Administrative Appeals Tribunal to acknowledge that the respondent, P&O Maritime Services Pty Ltd, was Mr O’Sullivan’s actual or deemed employer for the purpose of a claim for compensation. Mr O’Sullivan pursued a claim under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) after he injured his back when he slipped on some steps. Mr O’Sullivan claims that P&O should be his deemed employer because in 1993, when he injured his back in the course of employment, P&O accepted liability. He argues that s 4(4) of the Seafarers Act preserves his status as an employee, even though his employment came to an end in 1994.

2    P&O says he was not an actual employee when he injured his back in August 2014. Section 4(4) of the Seafarers Act preserves the rights of an injured employee to obtain compensation in respect of an injury that persists after the particular employment has come to an end. It does not preserve an employee/employer relationship in respect of a ‘fresh’ injury after employment has come to an end.

3    P&O also says and, in my view correctly, that the Tribunal made no decision other than to explain that P&O could only be Mr O’Sullivan’s ‘deemed’ employer if the 2014 injury was a continuing injury. The Tribunal did not determine into which category the injury fell. It made no determination as to whether the injury was continuing or ‘fresh’. It was simply addressing a preliminary issue. For most (but not all) of the reasons advanced by P&O, the appeal must be dismissed.

STATUTORY CONSIDERATION

4    Under s 3 of the Seafarers Act ‘injury’ is defined as meaning:

(a)    a disease; or

(b)    an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c)    an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include anything suffered by an employee as a result of reasonable disciplinary action taken against the employee, or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.

5    ‘Aggravation’ is defined under s 3 of the Seafarers Act as including acceleration or recurrence.

6    Section 4 of the Seafarers Act provides a definition of an ‘employee’ as follows:

(1)    In this Act, unless the contrary intention appears:

employee means:

(a)    a seafarer; or

(b)    a trainee; or

(c)    a person (other than a trainee) who, although ordinarily employed or engaged as a seafarer, is not so employed or engaged but is required under an award to attend at a Seafarers Engagement Centre for the purpose of registering availability for employment or engagement on a prescribed ship.

(2)    For the purposes of this Act, an industry trainee or a person mentioned in paragraph (c) of the definition of employee is taken to be employed by the Fund until he or she next becomes a seafarer, and his or her employment is taken to be constituted by his or her attendance:

(a)    in the case of an industry trainee-at an approved industry training course; and

(b)    in the case of a person mentioned in paragraph (c) of the definition of employee at a Seafarers Engagement Centre for the purpose of registering availability for employment or engagement on a prescribed ship.

(3)    If a default event occurs in relation to the employer of a seafarer or of a company trainee, then, for the purposes of this Act, the seafarer or company trainee is taken to be employed by the Fund.

(4)    If a provision of this Act applies to an employee after an employer has incurred a liability in relation to the employee under this Act, then, unless the contrary intention appears, a reference in that provision to an employee includes a reference to that person even after he or she ceases to be an employee.

(5)    To avoid doubt, a reference in this Act to the employment of an employee is a reference to:

(a)    if the employee is a trainee—the employee’s performance of the role of a trainee; or

(b)    if the employee is a person of a kind referred to in paragraph (1)(c)-the employee’s performance of the role of a person of that kind.

(emphasis added)

BACKGROUND

7    Mr O’Sullivan has previously appealed a tribunal decision in this matter. In those proceedings, Mr O’Sullivan’s claim for compensation asserted that P&O was liable. P&O had rejected the claim and Mr O’Sullivan requested reconsideration of P&O's decision. The decision was deemed to have been affirmed as P&O failed to issue a reconsideration decision within the time allowed. Mr O’Sullivan applied to the Tribunal for a review of P&O's decision. The Tribunal directed Mr O’Sullivan to provide certain documents. He failed to comply and his application was dismissed. He sought judicial review. Justice Siopis directed that the matter be remitted to be determined according to law. That decision, O'Sullivan v P & O Maritime Services Pty Ltd [2016] FCA 969 (First Appeal), was reached on the basis that Mr O’Sullivan had been denied procedural fairness, a point which P&O conceded on the First Appeal. In fact P&O had submitted that the First Appeal should be allowed following Guse v Comcare (1997) 49 ALD 288 per Burchett J (at 291).

BACK IN THE TRIBUNAL

8    Following the First Appeal, the threshold issue which arose in the Tribunal related to Mr O’Sullivan’s employment for the purposes of the claim. The parties had agreed that it would be desirable for the issue to be dealt with by way of a ruling before the application proceeded further.

9    The brief facts were that on 16 December 1993, Mr O’Sullivan injured his back in a fall. At the time he was employed by P&O to work as a greaser on the vessel, The Lady Dawn. The injury resulted in incapacity for work. He was paid periodic compensation for incapacity by P&O.

10    On 17 June 1994, Mr O’Sullivan was removed from Register A under cl 3(r)(v) of Sch X to the Maritime Industry Seagoing Award 1983. On 19 December 1994 P&O terminated Mr O’Sullivan’s employment and on 16 November 1995 P&O ceased payment of compensation for incapacity. Mr O’Sullivan pursued a common law claim against P&O without success.

11    After the periodic payment of compensation ceased, Mr O’Sullivan obtained social security benefits and from 2000-2004 he carried out some light work. In 2006 he returned to employment as a seafarer with full certification. On 12 November 2014, Mr O’Sullivan lodged a claim for compensation under the Seafarers Act citing P&O as his employer. He set out the scope of his claim and the circumstances of the alleged injury in the claim form. The alleged injury occurred between 9.45 am and 10.05 am on 26 August 2014 ‘outside Maritime Union and Maritime Mining Power Credit Union building’ when Mr O’Sullivan was ‘leaving the building after paying union fees and registering for employment’. He accidentally missed a step and jarred his back. He specified that the nature of the injury under the claim was ‘lumbo radiculopathy – slipped disk’ affecting his ‘lower back and left leg’.

12    He provided information in the claim form of his previous injury in 1993. P&O sought further information from Mr O’Sullivan. He responded in December 2014, but P&O rejected Mr O’Sullivan’s claim as he was not an employee of P&O at the time of his 2014 injury.

13    On 10 December 2014, Mr O’Sullivan requested reconsideration of this determination saying that he was unable to resume duties in the maritime industry due to the 2014 injury. As no reconsideration decision was issued by P&O within the time allowed under s 79 of the Seafarers Act, the primary determination was deemed to have been affirmed. Mr O’Sullivan applied for review of this decision.

14    The Tribunal concluded, as P&O submitted, the section makes allowance for the variable nature of employment as a seafarer, such that a person within the terms of s 4(1)(c) of the Seafarers Act would be considered as an employee even though not employed at the particular time. That is evident from s 4(4) where express provision is made to extend the meaning of ‘employee’ to an employee whose employment has come to an end in certain circumstances.

15    The Tribunal, however, rejected the suggestion that Mr O’Sullivan would be covered for a ‘fresh’ injury, if it was in fact a ‘fresh’ injury. The Tribunal decided that when construing this legislation, the language used must be carefully considered in respect of the purposes and policy of the particular provisions. In that regard, the Tribunal said that the text is quite clear and that it is important to consider the words in s 4(4) that state ‘a provision of this Act applies to an employee after an employer has incurred a liability in relation to the employee under this Act’. For this precondition to be met two things must be established – firstly, the employer must have incurred a liability under the Seafarers Act in respect of the employee and, secondly, a provision of the Seafarers Act must apply to the employee thereafter. This will occur only if the employee has sustained an ‘injury’ as defined by the Seafarers Act.

16    The Tribunal concluded that the purposes and the policy of the section are also clear. The liability of an employer in respect of an injured employee does not come to an end under the Seafarers Act if the employment relationship comes to an end. Otherwise, an employer might be able to curtail liability for an injury sustained by an employee to the period of his or her employment. This is the mischief the section serves to address.

17    The Tribunal continued (at [30]):

The interpretation Mr O’Sullivan presses raises another possible construction, however, such that the section would operate to extend the liability of an employer to a former injured employee in respect of a fresh injury arising in circumstances that are unrelated to the previous employment. This requires the words ‘a provision of this Act applies to an employee after an employer has incurred a liability in relation to the employee under this Act’ to be read disjunctively. Reading the section in this way ignores the legislative context in which it sits. And to do so would render the scheme of the [Seafarers Act] unworkable – it would sever the essential causal connection that must be established between ‘injury’ and ‘employment’ for the purposes of the defined meaning of ‘injury’ in s 3(1) to which s 9 refers. It is not the purpose or policy of this section to render an employer liable for any claimed injury a former injured employee might sustain without, first, establishing the essential pre-conditioning connection with the relevant employment.

(emphasis added)

18    The Tribunal said that it is clear, and apparently not controversial, that Mr O’Sullivan was not an employee of P&O when he injured his back on 26 August 2014. He had not been an employee of P&O since 19 December 1994. Thus, if the compensation claim he lodged on 12 November 2014 was in respect of a fresh ‘injury’ and the available materials did not establish an essential causal connection to his previous employment by P&O, s 4(4) is of no assistance to him and his claim against P&O must fail.

19    The Tribunal took the matter no further, but Mr O’Sullivan lodged an appeal.

GROUNDS OF APPEAL

20    The grounds of appeal are not easy to follow, but are as follows:

Questions of law

1.    IS IT LAWFUL FOR THE SITTING MEMBER OF THE [TRIBUNAL] TO REFER TO AND USE DICTATION (ADJECTIVES VERBS NOUNS OR ANY OTHER PART OF THE ENGLISH LANGUAGE) THAT THE APPLICANT HAS (NOT USED) IN THE APPLICATION THAT HAVE NO DEFINITION WITHIN THE LEGISLATION GOVERNING THE SRCA 1992 AND THEN MAKE RULING THAT RELIES ON SUCH DICTATION.

2.    IS IT LAWFUL FOR THE SITTING MEMBER OF THE [TRIBUNAL] TO REFER TO AND USE A VERB THAT HAS TWO MEANINGS IN THE ENGLISH LANGUAGE BUT HAS NO DEFINITION WITHIN THE LEGISLATION GOVERNING THE SRCA 1992 AND THEN INCLUDE AND MAKE RULE USING SUCH VERB IN THE ESSENTIAL: PART OF THAT RULING.

3.    IF THE SITTING MEMBER OF THE [TRIBUNAL] DOES USE SUCH DICTATION IS THE RULING THEN TAKEN TO BE IN ACCORDANCE WITH THE STATUTE REQUIREMENTS

4.    HAS A CONTRADICTION OF LAW OCCURRED BETWEEN 2 COMMONTHWEALTH (sic) ACTS (AAT 1975) AND (SRCA 1992) IN ASSOCIATION WITH AAT RULING

Findings of fact that he Court is asked to make

1.    WHETHER THE ([TRIBUNAL]) DENIED PROCEDURAL FAIRNESS

2.    WHETHER THE ([TRIBUNAL]) INCORRECTLY INTERPRETED A STATUTE RELEVANT TO PROCEEDINGS

Orders sought

1.    [MR O’SULLIVAN] SEEKS THAT THIS COURT REVOKES THE RULINGS AND ORDER

2.    FURTHER PROCEED THE APPLICATION

Grounds relied on

1.    AAT ACT (1975)

2.    SRCA (1992)

3.    THE ANNUAL JACK RICHARDSON ORATION NATIONAL PORTRAIT GALLERY (15/9/2015)

OBJECTION TO COMPETENCY

21    P&O object to the competency of the appeal on the following grounds:

1.    [Mr O’Sullivan’s] appeal is incompetent because the questions of law and grounds of appeal in the Notice of Appeal dated 20 October 2016 (Notice of Appeal) are incomprehensible and entirely unrelated to the issues in the Ruling of 10 October 2016 (the Ruling) being appealed from.

2.    The Notice of Appeal does not disclose or identify any question of law, a necessary precondition to an appeal pursuant to section 44 (1) of the Administrative Appeals Tribunal Act 1975.

3.    The Ruling is not a decision for the purposes of section 44 (1) of the Administrative Appeals Tribunal Act 1975 because it is not a decision constituting the effective decision or determination of the application for review. Section 44 (1) limits any right to appeal on a question of law to an appeal from a "decision" of the Tribunal.

SUBMISSION FOR MR O’SULLIVAN

22    The first two grounds of the competency objection can be considered together. Mr O’Sullivan rejects the complaint that the questions of law have not been set out in a comprehensible manner or in a manner related to the issues the subject of the ruling and says that the questions of law are framed with precision. He says the Tribunal failed to refer to his submissions, including his doctor’s letter and previous employment discharges with P&O. He complains that the Tribunal created its own version ‘of what INJURY means’.

23    Mr O’Sullivan says that the notice of appeal does disclose or identify questions of law on the basis that the legislation relies heavily on the correct use of the English language and that his notice of appeal should be approached with flexibility if it is tolerably clear, having regard to what is an arguable position. He argues on the strength of Haritos v Commissioner of Taxation (2015) 233 FCR 315 that if an appropriate case arises a court may be prepared to frame questions in order to find its jurisdiction, particularly where an applicant is unrepresented and fairness should allow for reading of a notice of appeal in its context. I accept this contention. On this topic, Mr O’Sullivan, by expansion, says:

…

The point in such a case as this is not whether it is reasonable to eat lunch or reasonable to want fish for lunch [para38 page 7]

[Mr O’Sullivan’s] point in [4] of these submissions is the chicken laid a "FRESH egg this morning or there is a "FRESH egg in the fridge that has only been in there for a day or so. It was not open for the sitting member to use that Adjective in the ruling or the term “FRESH INJURY” whereby the Legislation specifically states the meaning of INJURY. In fact the sitting member refers to the meaning of INJURY in para 24 and 25, of the Ruling. The sitting member was also in possession of a Doctors letter accurately describing the nature of the Applicants injury.

24    In relation to ground 3, Mr O’Sullivan’s submissions were:

•    [Mr O’Sullivan] considers the appeal complies with s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

•    [P&O’s] solicitors seem to be under the impression that the ruling is limited to a decision which has about it a quality of finality.

•    [P&O’s] solicitors seem to think the matter is finally disposed, because they themselves said it in paragraph 1 of their submissions.

•    [Mr O’Sullivan] does not consider that [P&O’s] solicitors have disposed of it yet.

Strike out and dismissal

•    [Mr O’Sullivan] does not agree that his appeal should be struck out

•    [Mr O’Sullivan] does not agree the appeal should be dismissed, the Court also has the power to elegantly draft it.

•    At this stage [P&O’s] solicitors have not won any costs

•    [Mr O’Sullivan] considers it has drawn more benefit from [P&O’s] solicitors’ submitted cases.

CONSIDERATION

25    The issue before the Tribunal was whether and, if so, in what circumstances P&O was Mr O’Sullivan’s deemed employer. There is no doubt that it was not the actual employer at the time of the 2014 injury. The Tribunal addressed the submissions Mr O’Sullivan had made, as is evident from the content of [21]-[32] of its reasons and the summary above.

26    The Tribunal was dealing with a preliminary issue and it was not necessary for it to resolve every aspect of the case on a preliminary ruling. Indeed, the Tribunal did no more than to say that it was clear that Mr O’Sullivan was not then an employee of P&O. Therefore, if the compensation claim he lodged on 12 November 2014 was in respect of a ‘fresh’ injury and the available materials did not establish an essential causal connection to his previous employment by P&O, s 4(4) of the Seafarers Act was of no assistance to him and the claim against P&O must fail.

27    The first two points in the objection can be dealt with together.

28    As to the failure to disclose or identify any question of law, this topic was fully canvassed recently in Haritos in [91], [93] and [94] where the Full Court (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) said:

91    It is of great importance that the question or questions of law should be stated with precision. That is the point of r 33.12 of the Federal Court Rules, and of its predecessor, O 53, r 3(2). We have set out the present rule above at 3. But the end sought to be achieved by the rule is to have the question of law stated with sufficient precision.

…

93    We also agree that there would be a deficiency in a notice of appeal if the asserted questions of law did no more than invite the Court to embark on a broad and hypothetical enquiry as to the construction and operation of statutory provisions: Screen Australia v EME Productions No 1 Pty Ltd (2012) 200 FCR 282 at [24] per Keane CJ, Finn and Gilmour JJ.

94    In our opinion, the issue must be approached as one of substance. In cases of doubt, the Court should consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal's reasons for its decision, and having considered all those matters, satisfy itself that there is in fact a question of law.

29    While there may be doubt about ‘precision’ in the framing of this question of law, I would take the intended question of law (which is clearly relevant) ‘in substance’ to be whether it was open to the Tribunal to introduce a concept of ‘fresh’ injury when ‘fresh’ is not provided for in the legislation. On these issues, I consider that the Tribunal was correct. ‘Fresh’ injury is a term frequently used to indicate a separate injury unrelated to a former injury. The 2014 injury may or may not have been a ‘fresh’ injury arising out of an independent accident. There is no conclusion as to whether the 2014 injury was an exacerbation of the 1993 injury or ‘fresh’. As the Tribunal noted, the interpretation advanced by Mr O’Sullivan would be inconsistent with the legislative purpose and context. As the Tribunal correctly noted (at [30]), the interpretation by Mr O’Sullivan would sever the essential causal connection between ‘injury’ and ‘employment’.

30    As to the third ground of alleged incompetency, the content of the last five paragraphs of the Tribunal’s preliminary determination are important. They are as follows:

Ruling

31.    Returning to consider the issue I must decide, there are two things to say.

32.    Firstly, it is quite clear, and apparently not controversial, that Mr O’Sullivan was not an employee of [P&O] when he hurt his back on 26 August 2014. He had not been an employee of [P&O] since 19 December 1994. Thus, if the compensation claim he lodged on 12 November 2014 is in respect of a fresh ‘injury’ and the available materials do not establish an essential causal connection to his previous employment by [P&O], s 4(4) is of no assistance to him and his claim against [P&O] must fail.

33.    Secondly, if the compensation claim Mr O’Sullivan lodged on 14 November 2014 is in respect of a continuing injury, for which liability has already been accepted by [P&O], s 4(4) operates to preserve [P&O]’s liability for that injury. There is a live question whether Mr O’Sullivan’s claim is capable of such a generous or broad interpretation.

34.    On this point, I will go no further. If the point is pressed, it may be appropriate to hear the parties and then determine the point.

Orders

35.    A telephone directions hearing is to be set down at the earliest convenient date once 14 days have elapsed from the date of this ruling.

(emphasis added)

31    In Rana v Repatriation Commission (2011) 196 FCR 137, Kenny, Stone and Logan JJ stressed (at [31]) that s 44(1) is limited to a decision which has about it a quality of finality on a question of law. The decision in Rana was in the context of a determination of a preliminary issue, much as the present case is, which did not dispose finally of the application for review. Likewise, in the present instance, Mr O’Sullivan’s application for review was not fully disposed of because the important question of whether or not it was a fresh injury was not to be addressed or determined. It follows that the appeal is not from a ‘decision’ for the purpose of s 44(1). Alternatively, if that conclusion is wrong, the decision made by the Tribunal on the preliminary point was manifestly correct.

32    More pertinently, in Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18, Perram J noted (at [17]-[19]):

17.    Section 44 of the AAT Act confirms the jurisdiction of this Court to entertain the questions thus posed. By contrast, applications under the ADJR Act and under s 39B of the Judiciary Act do not require the stating of such questions. Further, in any judicial review proceedings the Tribunal itself would necessarily be a respondent which is plainly not the case with the present proceeding. For all those reasons I cannot accede to Mr Yao’s submission that his notice of appeal is anything but that which it appears to be, namely, an appeal pursuant to s 44 of the AAT Act.

18.    That being so the appeal is clearly incompetent. Section 44 of the AAT Act provides for appeals from “decisions”. In Director General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80 the meaning of the word “decision” in s 44 was examined. The director general had sought to appeal, pursuant to s 44, from the Tribunal’s preliminary determination that it had jurisdiction to entertain Ms Chaney’s application to review the Department’s decision to cancel her widow’s pension. A majority of the Full Court (Deane J with whom Fisher J agreed) concluded that the word “decision” in s 44 should, for contextual reasons, be given a narrow reading and that so read it was confined to decisions “which constitute[s] the effective decision or determination of the application for review”. The proper construction of “decision” in s 44 is a matter upon which minds might legitimately differ as Northrop J’s dissent in Chaney amply demonstrates. However, Chaney has been repeatedly applied in this Court over a number of years: see Kowalski v Repatriation Commission [2009] FCAFC 107; (2009) 259 ALR 444 at 447-448 [18]- [23] per Spender, Graham and Gilmore JJ; and also the analogous reasoning in Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877; (2000) 64 ALD 325 at 334-335 [26]- [28].

19.    In this case the five decisions under review are decisions by the learned Tribunal member not to issue summonses to give evidence. Such a decision is not, to use the language of Deane J in Chaney, “a decision constitut[ing] the effective decision of determination of the application for review”. It follows that the purported appeal is incompetent.

(emphasis added)

33    In this instance, the Tribunal was doing no more than clarifying the circumstances in which s 4(4) of the Seafarers Act would operate. It was not examining the evidence in order to conclude whether or not it applied. It specifically left that question to be resolved later.

CONCLUSION

34    Mr O’Sullivan’s notice of appeal should be struck out and as the appeal has no prospects, it must be dismissed.

Associate:

Dated:    2 February 2017