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[2003] SAWCT 104
plaintiff. Average weekly earnings were set at a figure equal to the limit in s 4(7)(c). The compensating authority was ordered to pay Mr Moir's costs on the basis that the proceedings were a separate case,...
The Tribunal had to estimate what Mr Moir would have earned if he had not been disabled, even though HTI had failed and its records were largely missing. It did not treat the liquidation or his loss of work as fixing the earnings figure. Based on his work and skills, the company's former circumstances, and the limited financial evidence, it found he would have earned more than the statutory maximum and set his average weekly earnings at that maximum.
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2,198 words · generated 01/10/2026
This decision concerns the calculation of average weekly earnings, not whether Mr Moir was entitled to compensation. The Tribunal had already decided the entitlement question in earlier proceedings, delivered on 19 June 2003 and identified in this judgment as Moir v WorkCover/Royal and Sun Alliance (HTI Communications P/L in Liquidation) [2003] SAWCT 65 [1]. The present judgment, delivered on 19 September 2003, fixed the weekly earnings figure used for compensation.
No linked legislation citations have been extracted yet.
Mr Moir was managing director of HTI Communications Pty Ltd, a business selling mobile phones [2]. The Tribunal described HTI as apparently very successful up to the end of 2000. In November 2000 it changed its allegiance from Telstra to Vodafone, after which the business collapsed. HTI entered voluntary liquidation in July 2001. Mr Moir suffered a stress reaction and had not worked since the end of June 2001 [2]-[3].
The financial evidence was unusually incomplete. The judgment records that relevant material had been in the custody of three accounting firms, but tax returns for Mr Moir, his wife and the company were unavailable. Only one fringe-benefits tax return, for the year preceding March 1999, could be found [5]. The material before the Tribunal included a draft 2001 tax return, company bank statements with mostly unidentified entries, statements apparently relating to mortgage repayments, and personal bank statements for Mr and Mrs Moir [6]. Mr Moir and accountant Mr Matheson gave evidence [7].
There was no formal document setting out Mr Moir's financial entitlements from HTI [13]. He described a package including a weekly payment, cars and running costs, mortgage repayments, gym fees, life insurance, school fees, and other expenses [15]. The Tribunal could identify some transactions consistent with parts of that account, but much of the company banking material did not identify the payee [16]. The draft tax return showed a salary of $35,000, but the Tribunal considered that figure of limited assistance because evidence in the earlier trial was that Mr Moir had stopped drawing a salary for a period to help keep HTI solvent [19].
The Tribunal recorded undisputed facts about HTI's scale and condition. At the time of the change to Vodafone, it had annual turnover of about $6 million, seven or eight retail outlets and about 50 staff. Vodafone valued the business at about $1 million. Although HTI had experienced financial difficulty some years earlier, by late 2000 it was described as prosperous and flourishing [11]. The Tribunal also found that HTI was essentially a one-man business and that Mr Moir devoted his time, energy and abilities to it [12].
The Tribunal's order set average weekly earnings at the limit in s 4(7)(c), and required the compensating authority to pay Mr Moir's costs on the basis that this was a separate case, rather than a continuation of the entitlement proceedings [32].
The parties agreed that s 4 supplied the relevant test: “The average amount the worker could reasonably be expected to have earned for a weeks work if the worker had not been disabled” [20]. The judgment's central task was therefore to estimate the earnings Mr Moir could reasonably have expected to receive in the counterfactual situation where he was not disabled. It was not simply a matter of adding up wages recorded in the available documents.
The respondent's submissions highlighted the evidentiary problems. Mr Moir was effectively able to set his own remuneration because he controlled HTI, and there was no satisfactory reconciliation of the company's books. The respondent also argued that his remuneration was performance-based and that HTI's collapse meant it would no longer produce the historical income [23]. The applicant's position was that the evidence put his entitlements above the statutory limit [24].
The Tribunal acknowledged that it had to avoid “impermissible speculation” [21]. It also found that the parties had done what they could to gather relevant material and produce schedules clarifying some payments [9]. The absence of records was not treated as proof of any particular salary. Instead, the Tribunal considered the incomplete records alongside the evidence about the business, Mr Moir's work and skills, and his described remuneration. Its assessment was explicitly qualified: it acknowledged that its conclusion involved “a larger element of speculation” than desirable [30].
A central point was that the assessment did not stop at Mr Moir's last actual earnings or at the collapse of his employer. The Tribunal drew assistance from Casey v WorkCover Corporation 2000/67 and Loades v WorkCover 2000/16 [26]. It understood those decisions to treat an impending retrenchment or the end of employment as irrelevant to the statutory formula, because the formula asks what the worker could earn “for a weeks work” [26]. In the earlier cases, the earnings figure itself was well evidenced, while the issue concerned how it would carry into the future [27]. Here, both the earnings evidence and the company's collapse complicated the assessment.
The Tribunal applied the same reasoning to HTI's liquidation, stating that its collapse and Mr Moir's loss of employment were irrelevant to the statutory calculation [28]. It then considered the hypothetical earnings question by reference to Mr Moir's historically demonstrated skills. The Tribunal discounted the claimed package to some extent because he had set his own remuneration, and excluded payments for his wife's car and its running expenses [29]. Even on that adjusted view, it found it was “comfortably confident” that he would have earned more than the statutory limit [29]. The order followed from that finding: it set earnings at the statutory limit rather than at the higher amount the Tribunal considered he would have earned.
The judgment does not describe a change in the law or announce that earlier rules were displaced. It applies the statutory wording in s 4 as agreed by the parties and draws on the Tribunal decisions in Casey and Loades [20], [26]. Its stated contribution is an application of that approach to a difficult evidentiary setting: a director's informal remuneration arrangements, an insolvent employer, and largely unavailable records.
The judgment's account of Casey is that an applicant's impending retrenchment was irrelevant because the statutory formula presumes the availability of work and asks what could be earned for a week's work [26]. It gives a similar account of Loades, where the fact that employment was about to end was also treated as irrelevant [26]. The Tribunal notes an important factual difference: those cases had abundant and undisputed evidence of the amount actually being earned, while the issue there concerned carrying that amount into the future [27]. The present case lacked that reliable earnings baseline.
After considering that distinction, the Tribunal did not treat the difference as a reason to abandon the statutory measure. It considered that the same reasoning applied to HTI's liquidation and Mr Moir's loss of work [28]. It then made a fact-specific estimate from the available evidence, while acknowledging the limits of that estimate [29]-[31].
The decision therefore supports a narrow reading: for this statutory assessment, actual post-collapse earnings did not replace the question of what Mr Moir could reasonably have been expected to earn if not disabled. It does not establish a general evidentiary rule that a worker's account of remuneration must be accepted whenever company records are missing. Nor does it explain how the statutory limit should be calculated generally. The result turned on the Tribunal's assessment of the particular evidence and the statutory ceiling identified in s 4(7)(c).
At [20], the parties agreed that the test was the average amount the worker could reasonably be expected to earn “for a weeks work” if not disabled. In plain English, the inquiry was about likely earnings in the non-disabled scenario, not merely recorded payments or the amount received after the business failed.
At [21], the Tribunal identified the risk of reaching conclusions unsupported by the evidence. Its task was to draw fair inferences without crossing into impermissible speculation. This explains why the missing company records mattered, but also why the Tribunal assessed the evidence that did exist rather than treating the question as unanswerable.
At [26]-[28], the Tribunal used Casey and Loades to address the effect of the end of employment. It reasoned that the statutory measure still asks what could be earned for a week's work, even where the employment was due to end. It applied that approach to HTI's liquidation and Mr Moir's loss of employment. The proposition is about the statutory calculation in this case, not a general finding about all consequences of company liquidation.
At [29], the Tribunal explained how it adjusted its assessment. It allowed for the fact that Mr Moir had set his own remuneration, and did not count payments associated with his wife's car and running expenses as part of his salary package. Even after those qualifications, the Tribunal found expected earnings exceeded the statutory limit.
At [30]-[31], the Tribunal openly recognised that the result involved more speculation than it would have preferred and that liquidation and missing records complicated the task. It nevertheless considered it had done the best it could with the evidence available. This qualification is important: the judgment does not portray the earnings calculation as precise or based on complete accounting proof.
The decision is most directly relevant to an average-weekly-earnings assessment under the South Australian workers compensation provision identified as s 4, where the statutory question is what the worker could reasonably have earned for a week's work if not disabled [20]. It may be particularly useful as an example where the worker's employment ended, or the employer became insolvent, before the earnings figure was determined [28].
It also addresses a situation where the worker was a company director or controlling figure, remuneration arrangements were informal, and records were incomplete. The Tribunal did not assume that the claimed package was correct. It considered the worker's ability to set remuneration, checked the available banking and tax records, and excluded some claimed items [13]-[19], [23], [29]. Its outcome depended on the overall evidence, including HTI's former scale and prosperity and Mr Moir's role and skills [11]-[12], [29].
The judgment is not a complete guide for a case with different statutory wording, a different earnings cap, reliable evidence of a fixed wage, or evidence about the likely continuation of a business. The judge expressly distinguished Casey and Loades on the state of the earnings evidence [27]. It also does not state that missing records automatically shift a burden of proof or justify an inference against either party.
The supplied judgment contains no discussion of any later court or tribunal treatment of Moir. It identifies and applies Casey v WorkCover Corporation 2000/67 and Loades v WorkCover 2000/16 [26], but it does not provide subsequent citations or a history of how another decision treated this judgment.
Accordingly, the later-treatment position cannot be established from the material supplied. The judgment itself is a 2003 decision of the South Australian Workers Compensation Tribunal, delivered by Acting Judge GMM Thompson. It concerns a specific statutory calculation and a notably incomplete evidentiary record. No claim about whether it was followed, distinguished, appealed, or treated as authoritative by later courts can safely be made from this text alone.
The judgment includes an appeal notice stating that an appeal under s 86(1), if available, had to be filed within 14 days of delivery and served on all parties [note following 32]. That notice records what the judgment said at the time. It does not, by itself, establish any later appellate history.
The judgment does not set out the detailed contents of the s 4(7)(c) limit or explain how the limit was calculated. It records the parties' agreement on the s 4 earnings test and makes an order at the statutory limit [20], [32]. A reader seeking the statutory mechanics would need material beyond this judgment.
The reasons also do not disclose the precise weekly calculations the Tribunal made from the claimed remuneration package. Paragraphs [15]-[18] identify several claimed payments and say that some bank entries appeared consistent with them, but the decision does not provide a full schedule or state a final weekly value for each item. Some claimed items were unspecified, including cable television, holidays and general expenses [15]. The order is consequently clear as to the outcome, but the arithmetic behind the intermediate assessment is not fully set out.
There is also no detailed method for estimating earnings where the worker controls the employer, the business has failed, and there is no reliable accounting baseline. The Tribunal offers a fact-specific response: it weighed the limited records, Mr Moir's evidence, the company's circumstances and his skills, and acknowledged uncertainty [11]-[19], [29]-[31]. It does not formulate a general evidentiary test for future cases.
Finally, the supplied text does not reveal whether the decision was appealed or how later tribunals interpreted it. Those matters remain outside what can be established from the judgment provided.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
1 That the applicant Philip Moir was entitled to compensation was decided in Moir v WorkCover/Royal and Sun Alliance (HTI - Communications P/L in Liquidation) on 19 June 2003. That case is reported at [2003] SAWCT 65. These proceedings deal with setting Mr Moir's average weekly earnings.
2 Mr Moir was the Managing Director of HTI Communications P/L ("HTI"). HTI was in the business of selling mobile phones. Up to the end of 2000 it was apparently very successful. Then it changed it's allegiance from Telstra to Vodaphone in November 2000. Thereafter the business collapsed. In July 2001 it was put into voluntary liquidation. Mr Moir was discharged. Mr Moir suffered a stress reaction.
3 Mr Moir has not worked since the end of June 2001.
4 My present task is to set the weekly rate at which he should be compensated.
5 The task is unusually difficult. Most of the relevant records are missing or unavailable. Three firms of accountants have had custody of relevant material at different times over the past two years. The liquidators are apparently pursuing a million dollar claim against Vodaphone. Taxation returns for the applicant and his wife (who was a shareholder) and returns for his company are not available. Only one fringe benefits tax return is available and that is for the twelve months preceding March 1999.
1. A draft tax return for Mr Moir for the year ending 30 June 2001.
2. About 48 pages of bank statements of the company - most of the entries are unintelligible and contain very little information.
3. Ten pages of bank statements "Property Power Cheque" from Bank SA that seem to relate to repayments of a mortgage.
4. 25 pages of bank statements from Bank SA for Mr and Mrs Moir's personal bank account.
7 Mr Moir gave evidence as did Mr G J Matheson an accountant.
8 It transpires that HTI employed a series of bookkeepers who might have thrown some light on the subject matter and particularly the remuneration arrangements, but these people cannot be located.
9 I am satisfied that the parties have done everything in their power to gather relevant material and to produce schedules that clarify some payments from the company.
10 Hence I work with the barest possible set of facts.
11 I find the following facts which were not controverted:-
1. The decision to "migrate" the business from Telstra to Vodaphone was essentially that of Mr Moir.
2. It transpired within a few months that decision produced an economic disaster.
3. At the time of the change of allegiance HTI had an annual turnover of about six million dollars. It had seven or eight retail outlets. It employed about 50 staff.
4. Vodaphone valued the business at about one million dollars.
5. Some years prior to 2001 HTI was in financial difficulty. However by late 2000 it was a prosperous and flourishing enterprise.
12 HTI was essentially a one man business. Mr Moir devoted all of his time and his not inconsiderable energy and talents to it.
13 I have the impression that like many such enterprises internal management and record keeping lacked formality to say the least. There was no formal documentation of Mr Moir's financial entitlements. As he owned the company, probably none was thought to be necessary.
14 External accountants were employed to file such returns as were required by law but the information disclosed did no more than reflect the state of the company books as transmitted from the bookkeeper to the accountant.
15 Mr Moir says that his salary package included the following:-
2. The lease costs of two cars, one for himself, one for his wife - $230.
16 I can identify in the bank statements items that seem to be consistent with one, two, four, five and six above. However most entries in the bank statements of the company are simply eg. Cheque number 2299 - $1457.82. The payee is not identified.
17 I have reduced the above amounts to a weekly figure.
18 Item ten was by way of reimbursing Mr Moir for debits he incurred on his Visa card.
19 The draft tax return for Mr Moir for June 2001 showed a salary of $35000. That is not as helpful as it appears on its face as the evidence in the main trial was that for some time before HTI collapsed Mr Moir did not draw a salary in an attempt to keep the company solvent.
20 Both parties agree that the law to be applied is s 4 of the Act:-
"The average amount the worker could reasonably be expected to have earned for a weeks work if the worker had not been disabled".
21 The difficulty in this case lies in what conclusions I can fairly draw from the sparse evidence available, without lapsing into impermissable speculation.
22 The trial was conducted not in the usual adversarial pattern, but rather on an inquisitorial model because it became a three party discussion between both counsel and the bench.
1. It may be that Mr Moir lived off the company. However the company did not produce a bottomless pit of money. Until an accountant reconciles the books there is no satisfactory conclusion to which I can come. Ie his submission based on the proposition that the applicant is bound to produce persuasive proof.
2. Essentially because of the above, Mr Moir's remuneration was "performance based": the better the company performs the more Mr Moir would get out of it. If the company was not performing well, it is not going to produce the level of income that obtained historically when the going was good.
3. After July 2001 Mr Moir would have earned nothing from HTI. It collapsed.
4. If the financial terms of the contract of employment cannot be ascertained until an accountant calculates it then it remains essentially unknown.
5. For the purposes of s 4 the parties were not at arms length. The applicant effectively set his own remuneration. It would hardly be the case with another employer.
24 Mr Durkin's position was that his client's entitlements clearly exceed the limit in s 4(c) ie twice State average weekly earnings.
25 My own researches into the decisions of this Tribunal and its predecessors have not disclosed a factual situation similar to that which obtains here.
26 I have obtained some assistance from Casey v WorkCover Corporation 2000/67. There the applicant was about to be retrenched when injured. The retrenchment was held to be irrelevant because the statutory formula presumes the availability of work because. The formula says "for a weeks work". The same view was espoused in Loades v WorkCover 2000/16 ie the fact that the employment was about to end is irrelevant.
27 However in both of those cases there was abundant evidence of the amount the applicant was in fact earning. That figure was not in dispute. It was how that figure would be carried into the future.
28 However using the same reasoning process - the fact that HTI went into liquidation and the applicant lost his employment is irrelevant.
29 Had the applicant not been disabled it is reasonable to expect that the applicant would have earned a weekly wage commensurate with his historically demonstrated skills. Even discounting this to some extent for the fact that Mr Moir set his own remuneration, and even not including the payment made by the company for Mrs Moir's car and its running expenses because they are not part of Mr Moir's salary package, I have reached the conclusion that there is sufficient evidence before me to justify a finding that Mr Moir would have earned in excess of the statutory limit. Perhaps well in excess. I am comfortably confident he would have earned more than the limit.
30 I acknowledge there is a larger element of speculation in this conclusion than is desirable but the absence of records and the liquidation of HTI are complicating factors.
31 I have done the best that I can with the evidence that is available.
1 Mr Moir's average weekly earnings be set at a figure equal to the limit in s 4(7)(c).
2. Mr Moir's costs be paid by the compensating authority on the basis that this is a separate case and not to be regarded as a continuation of the main case.
Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.
Moir
Workcover/Royal and Sun Alliance Workers Compensation
Average weekly earnings were set at a figure equal to the limit in s 4(7)(c). The compensating authority was ordered to pay Mr Moir's costs on the basis that the proceedings were a separate case, not a continuation of the main case.