Coles Myer Ltd v Rudzinski

LEGISLATION CITED: Workers Compensation Act 1987 s 37(4)Workplace Injury Management and Workers Compensation Act 1998 s 353

CASES CITED: AGL v Samuels (1993) 9 NSWCCR 616Holden Pty Ltd v Walsh (2000) 19 NSWCCR 629McCafferty's Management Pty Ltd v Pimlott (1995) 12 NSWCCR 360Spenceley v Deniliquin Shire Council (2001) 22 NSWCCR 7Watson v Hanimex (1992) 8 NSWCCR 190

PARTIES: Coles Myer Limited Jolanta Rudzinski

COUNSEL: A: R W Seton SC / D G Saul R: D O'Dowd

SOLICITORS: A: Leitch Hasson Dent, Sydney R: Gillis Delaney Lawyers, Sydney

LOWER COURT JURISDICTION: Workers Compensation Commission

LOWER COURT JUDICIAL OFFICER: Ms Faye Robinson (Arbitrator)

LOWER COURT DATE OF DECISION: Friday 26 March 2004

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40590/05 WWC PD 51

Beazley JA Tobias JA McColl JA Ex tempore 22 June 2006

Coles Myer Ltd v Rudzinski Judgment 1 McCOLL JA: Coles Myer Ltd appeals pursuant to s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (the "WIM Act") from a decision of Deputy President Handley of the Workers Compensation Commission of New South Wales on an appeal by way of a review from a decision of Arbitrator Robinson dated 30 April 2004. The appeal is confined to a complaint about a point of law: s 353(1). 2 At the outset of the appeal Mr R Seton SC sought leave to file a Further Amended Notice of Appeal to add new paragraphs 9 and 10 to the existing grounds. Those paragraphs sought to raise questions of law and Mr O'Dowd who appeared for the respondent, while he resisted that amended Notice of Appeal being filed, did not in the end oppose it being relied upon. 3 The critical issue before both the Arbitrator and the Deputy President was whether the workers compensation, to which it was not disputed the respondent was entitled she having been injured whilst in the appellant's employ on 6 May 2003, should include any payments in respect of the respondent's two children. That issue turned on whether the respondent's children were "totally or mainly dependent for support on the worker at the date compensation becomes payable to the worker or … [became] so dependent after that date": s 37(4) Workers Compensation Act 1987. Both the Arbitrator and the Deputy President held that they were, and had been so since 11 September 2003. The latter date was the relevant date apparently because it was from that date that the appellant had been paying workers compensation to the respondent on the basis of total incapacity: see s 37(1). 4 The appellant contends that the appeal concerns the proper construction of s 37 (4) of the Workers Compensation Act insofar as weekly payments of compensation relate to persons who are mainly dependent upon a worker for support. 5 In my view that is not so. The appellant's submissions seek to challenge the finding of fact that the respondent's children were mainly dependent on her in the sense referred to in subs 37(4). 6 There was unchallenged evidence before the Commission, on which the decisions of the Arbitrator and the Deputy President were clearly based, that the respondent's husband earned somewhat more than the respondent and that his earnings were used to meet the family's mortgage payments, while the respondent's income met household expenses. 7 The original Notice of Appeal sought to identify an error of law in the decisions below by contending first that the Deputy President failed to carry out a proper review in accordance with the principles as set out in Watson v Hanimex (1992) 8 NSWCCR 190 and AGL v Samuels (1993) 9 NSWCCR 616. Mr Seton abandoned that ground of appeal and indeed relied only on the two grounds in paragraphs 9 and 10 of the further amended Notice of Appeal which are: "9. The Presidential Member misdirected himself as to the meaning of 'totally or mainly dependent' under Section 37 of the Workers Compensation Act 1987. 10. On the facts as found by the Commission only one finding was reasonably open to the Commission, that is, that the children of the Respondent worker were not totally or mainly dependent upon her for support under Section 37 of the Workers Compensation Act 1987". 8 I note that while those two new grounds of appeal refer to the issue of "totally" as well as "mainly dependent" under s37, Mr Seton's submissions were addressed to the question of "mainly dependent". 9 The appellant's written submissions focused on the fact that there was what was said to be a "substantial difference" between the earnings of the respondent and her husband. It was not entirely clear whether Mr Seton continued to embrace that argument. At times his submissions appeared to touch upon it. It can be disposed of shortly. 10 In the written submissions the appellant sought to identify this as an error of law because of the following statement of Armitage J in Spenceley v Deniliquin Shire Council (2001) 22 NSWCCR 7 at [15]: "15. It seems to me reasonable in those particular circumstances to say that the child Nykita has at all material times been mainly though not totally dependent upon the applicant, even though she is also dependent to a considerable degree upon her mother Natalie. The situation would have been different of course in circumstances where the wife's income exceeded to a much greater degree the income of the worker in weekly payments of compensation. It is not difficult to envisage circumstances where it could not be said in any meaningful sense that a child is totally or mainly dependent upon an injured worker where, for example, the injured worker's wife or husband were successful in regaining employment in a professional or trade capacity resulting in much more substantial earnings than those available to the wife in the present case." 11 In Spenceley, Armitage J (at [12]) applied two decisions of this Court, McCafferty's Management Pty Ltd v Pimlott (1995) 12 NSWCCR 360 and Holden Pty Ltd v Walsh (2000) 19 NSWCCR 629 to the effect that the obligation of each parent to support a child is joint and several, and a child may be in a particular case totally dependent upon one parent for support notwithstanding that he or she is totally dependent also upon the other parent (Meagher JA, Pimlott at 364B) and that "total dependence is not incompatible with the receipt of support from someone else" (per Giles JA Holden at 642 [51]). These observations clearly apply with even greater force where, as here, the question was whether the children were "mainly dependent" upon the respondent. 12 In the present case the relevant terms of the legislation required the respondent to demonstrate that her children were either "totally or mainly" dependent upon her. Armitage J's remarks in Spenceley cannot be understood to amount to a proposition of law. If they were so intended, then they were, with respect, incorrect. The question whether a worker's children are "totally or mainly" dependent is a question of fact. In this case there was evidence from which that conclusion could be drawn. 13 The appellant now seeks to argue that the correct test of whether children are mainly dependent on the worker requires a comparison between the application of the income of the children's effective providers. Assuming, without deciding, that is a correct test, the Deputy President undertook that exercise. 14 Mr Seton sought to argue that the logic of the McCafferty line of authority did not apply where the issue was whether the chid was "mainly" dependent on the worker. He advanced no compelling argument as to why a child could not be mainly dependent on one parent, while also mainly dependent on the other, when the child could be totally dependent on each in such circumstances. 15 In my view the appellant has not established any error of law. 16 The appeal should be dismissed. 17 This appeal should never have been brought. The appeal did not elucidate any error of law, but constituted a thinly disguised attack on findings of fact. Mr Seton sought to remedy that by filing the Further Amended Notice of Appeal and then by virtually abandoning everything in the written submissions and advancing an argument which arguably had not been hitherto advanced. Despite Mr Seton's valiant attempts, the appeal could not be resurrected.

(1) Appeal dismissed. (2) Appellant to pay the respondent's costs on an indemnity basis.

20 TOBIAS JA: I agree with the orders proposed by McColl JA and with her Honour's reasons. I would merely wish to add the following. It was submitted, as I understand the appellant's contentions, that it was not permissible for the income earning parents of a child or children to so organise their finances so as to place the obligation to financially support the children on one parent rather than the other so that if that parent was injured it could be maintained that the children were wholly or mainly dependent for support upon that parent for the purposes of s37 of the Act. The underlying assumption for this submission as I understand it, was that the parent who accepted the obligation referred to would only be able to do so because the other parent utilised his or her income for other purposes as a consequence of that arrangement. 21 In my view there is no substance in this submission. There is nothing in s37 of the Workers Compensation Act that in any way penalises the parents of children in so organising their financial affairs including the utilisation of their sources of earned income so that one rather than the other becomes the parent upon whom the children are wholly or mainly dependent for their support. The only circumstance in which such an argument would have some substance would be if there was some suggestion of a sham or fraud, which of course is not the present case. 22 In my view, the argument advanced by Mr Seton on behalf of the appellant that sought to give some substance to the contention referred to should be rejected.

23 BEAZLEY JA: I perhaps should only add these remarks to my agreement with both the remarks of McColl JA and Tobias JA. There was an attempt during the course of senior counsel's submissions to require a breakdown of how much of a worker's income was spent on a dependent child. It was submitted that it was not sufficient to simply say that "I spend my money on children's expenses and household expenses" without there then being some breakdown to enable the Court to understand where and how the money was spent. That argument is redolent of the type of précis that is undertaken in child support proceedings which have no relevance to an application of this type at all and should be judicially resisted at the outset.

24 So for the reasons each of the members of the Court have given the orders of the Court are those proposed by McColl JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.