Wood v ASP Ship Management Pty Ltd [2007] FCA 459

FEDERAL COURT OF AUSTRALIA

Wood v ASP Ship Management Pty Ltd [2007] FCA 459

ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal – calculation of worker's compensation payments – whether the Tribunal applied proper construction of s 13(6) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) Administrative Appeals Tribunal Act 1975 (Cth), s 44 Seafarers Rehabilitation and Compensation Act 1992 (Cth), ss 13(5), (6) Comcare v Thompson (2000) 175 ALR 163 at [45] cited Re Thompson and Comcare (2002) 69 ALD 762 at [28] cited STEVEN SIDNEY WOOD v ASP SHIP MANAGEMENT PTY LTD NSD1428 OF 2006

EMMETT J

28 MARCH 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1428 OF 2006

BETWEEN: STEVEN SIDNEY WOOD

Applicant

AND: ASP SHIP MANAGEMENT PTY LTD

Respondent

JUDGE: EMMETT J DATE OF ORDER: 28 MARCH 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The decision of the Administrative Appeals Tribunal made on 30 June 2006 be set aside. 2. The matter of the review by the Administrative Appeals Tribunal of the respondent's determination not to increase the applicant's incapacity payments be remitted to the Administrative Appeals Tribunal for reconsideration according to law. 3. The respondent pay the applicant's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1428 OF 2006

BETWEEN: STEVEN SIDNEY WOOD

Applicant

AND: ASP SHIP MANAGEMENT PTY LTD

Respondent

JUDGE: EMMETT J

DATE: 28 MARCH 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This appeal from a decision of the Administrative Appeals Tribunal (the Tribunal), pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (the Tribunal Act), concerns the proper construction of s 13(6) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the Act). Section 13(6) relevantly has the effect that, if the amount per week payable to employees in a class to which an employee belonged when that employee became incapacitated, is later increased, the compensation payable to the employee as a result of the incapacity must be increased by the same percentage as that by which that amount per week was so increased. 2 The Tribunal found that the appellant, Steven Sidney Wood (the Seafarer), was employed by the respondent, ASP Ship Management Pty Ltd (ASP), as a catering attendant although he is also referred to as a catering assistant. Nothing appears to turn on the difference. The Seafarer was employed by ASP until his career ended in January 1997 as a result of incapacity connected with his employment. The Seafarer received compensation payments from ASP but contends that they have been incorrectly calculated in that increases required by s 13(6) of the Act have not been taken into account. The Tribunal held that there are no longer any members of the class of employees to which the Seafarer belonged at the time of his incapacity. The Tribunal concluded, therefore, that s 13(6) could have no operation and the payments to the Seafarer should not be adjusted under that provision. 3 The Seafarer contends, in his notice of appeal, that the Tribunal made an error of law in reaching that conclusion. ASP disputes that there was any error on the part of the Tribunal in reaching its conclusion. ASP says, in addition, that, if there was any error on the part of the Tribunal, it was not an error of law and, accordingly, there is no appeal under s 44 of the Tribunal Act, which limits the right of appeal to an error of law. No suggestion has been made that the Seafarer seeks Constitutional writ relief pursuant to s 39B of the Judiciary Act 1903 (Cth).