ASP Ship Management Pty Limited v Administrative Appeals Tribunal [2006] FCAFC 23

ASP Ship Management Pty Limited v Administrative Appeals Tribunal [2006] FCAFC 23

The Tribunal misdirected itself by treating the fundamental question as whether "operate" referred to physical operation or commercial enterprise operation. The correct inquiry under s 10 of the Navigation Act is broader and asks whether the Australian entity had a real, substantial and direct role in the management and control of the ship's commercial, technical and crewing operations. Because the Tribunal did not make findings necessary to determine whether ASP or Mermaid had such responsibility at the time of the injuries, it had not established its jurisdiction and could not proceed to the merits unless and until it made that finding according to law.

Jurisdiction
Australia
Judgment Date
10 March 2006
Procedural Posture
Applications Under S 39 B of the Judiciary Act 1903 (cth) for Prohibition and Purported Appeals Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) Concerning Seafarers Compensation Claims / Full Court Judgment After Administrative Appeals Tribunal Preliminary Rulings That It Had Jurisdiction
Outcome
Orders in the nature of prohibition were made in the s 39B proceedings; the purported appeals were dismissed; costs were stood over.
Legal Topics
['meaning of "operated By" in S 10 of the Navigation Act 1912 (cth)' 'administrative Appeals Tribunal Jurisdiction' 'seafarers Rehabilitation and Compensation Act 1992 (cth)' 'prescribed Ship' 'prohibition']
['shipping and Navigation' 'administrative Law' 'workers Compensation'] ['meaning of "operated By" in S 10 of the Navigation Act 1912 (cth)' 'administrative Appeals Tribunal Jurisdiction' 'seafarers Rehabilitation and Compensation Act 1992 (cth)' 'prescribed Ship' 'prohibition']

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Procedural Posture

Applications Under S 39 B of the Judiciary Act 1903 (cth) for Prohibition and Purported Appeals Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) Concerning Seafarers Compensation Claims / Full Court Judgment After Administrative Appeals Tribunal Preliminary Rulings That It Had Jurisdiction

Legal Issues

  1. 1 ['Whether MT Flinders was being "operated by" ASP Ship Management Pty Limited at the time of Mr Bergvall\'s injury, whether or not in association with another entity.' 'Whether MV Lorelay was being "operated by" Mermaid Labour & Management Limited at the time of Mr Kelk\'s injury, whether or not in association with another entity.' 'Whether the Tribunal erred in construing "operated by" by asking whether it referred to physical operation rather than operation as a commercial enterprise.' 'Whether the Tribunal had found the facts necessary to establish its jurisdiction to review the deemed disallowances of the compensation claims.']

Ratio Decidendi

The Tribunal misdirected itself by treating the fundamental question as whether "operate" referred to physical operation or commercial enterprise operation. The correct inquiry under s 10 of the Navigation Act is broader and asks whether the Australian entity had a real, substantial and direct role in the management and control of the ship's commercial, technical and crewing operations. Because the Tribunal did not make findings necessary to determine whether ASP or Mermaid had such responsibility at the time of the injuries, it had not established its jurisdiction and could not proceed to the merits unless and until it made that finding according to law.

Court Disposition

Orders in the nature of prohibition were made in the s 39B proceedings; the purported appeals were dismissed; costs were stood over.

Orders

  • ["In NSD997 of 2005, an order in the nature of prohibition that the Administrative Appeals Tribunal not enter upon a consideration of the merits of Mr Bergvall's application under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) unless and until it finds, according to law, that MT Flinders was being...