Once this approach to s8(1) is adopted, as in my opinion it should be, the conclusion is inevitable that there was evidence to support the Commission's decision on the issue of fact. The deceased was under a legal duty to maintain the respondent. …… The fact that the respondent was permitted by her stepfather to live in the home which he and her mother had established should not be regarded as a contribution by him to her support or maintenance but rather as a kindness and benefit on his part to the respondent's mother so as to enable her to enjoy the society and companionship of her daughter. Seen in this light the provision of accommodation did not detract from the respondent's total dependence for support on her father. Nor, for that matter, did the provision of some clothing by the mother have that effect."
14 Similarly Gibbs J (at 208) observed:
"The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date; "past events and future probabilities" have to be considered. The fact that at the date of death a daughter was being supplied with some of the necessities of life by some third person does not necessarily mean that she was not then wholly dependent for her support upon her father. Obviously enough if the assistance provided by the third person was only intermittent or casual, and unlikely to be continued in the future, it would not prevent the daughter from being wholly dependent on her father. But even if the assistance was substantial and likely to be continued, it would not necessarily have the effect that the child had to be regarded as a partial dependent of her benefactor and therefore as not wholly dependent on her father. For example, a child whose home was in the country and who lived with her grandparents while attending a school in the city would not for that reason alone cease to be wholly dependent upon her father." [omitting footnotes]
15 In the present case the assistance provided by the father was substantial. But so too was the assistance of the mother in the straitened circumstances of this family. If one excludes the youth allowance as the trial judge properly did, the amount provided directly by the mother was held to be $25 to $30 per week or $1,300 to $1,500 per year whilst the father gave a similar amount of $20 to $30 per week. Obviously his contribution was in other respects much greater. Thus he provided the house in which the family lived making re-payments of the mortgage, and he paid the rates and taxes. Nonetheless both parents provided essential support.
16 In any event, as is clear from cases following Aafjes v Kearney the focus is not upon the relative amounts each parent actually paid or provided. Rather it is upon the legal obligation of the deceased parent to have supported the child and the reliance placed by that child upon fulfilment of that parental obligation. So in McCafferty's Management v Pimlott (supra), the Court of Appeal concluded that it was open to the trial judge as a matter of law to find total dependency of the child on its deceased parent. This was in circumstances where both parents were working and pooled their incomes from which house mortgage and hire purchase commitments were paid. Meagher JA concluded that the trial judge had been correct to find the child wholly dependent on the deceased father for the following reasons:
"1. The legal obligation of the deceased is to support his child. This is in no way diminished if, as is possible, his wife was under an equal and coordinate obligation. They were both, in my view, under a joint, or joint and several obligation, to provide for her; and she was totally dependent on each of them.
2. As Dignam J said in Bruest's case [ Bruest v Commissioner for Railways [1957] 31 WCR 131], in a dictum which is equally applicable here, "the child looks to its father as the principal bread winner of the family", a statement which is still true of what is demanded by social convention if not by legal obligation.
3. Looking at past events and further possibilities, the fact that Mrs Pilmott intended to retire from the work force at the age of 40 emphasizes the totality of the child's dependence on its father." [at 364]
17 I do not understand Meagher JA to be here drawing any distinction in principle between a child looking to its father as compared to its mother. It is a commonplace that there is considerable individual diversity in the varying ways couples choose to order their individual finances and share their obligations as householders and parents. They may choose to pool earnings or the reverse. It is often quite adventitious whether a greater amount emanates from one parent rather than the other, reflecting the variety of domestic arrangements as well as unequal earnings. None of that diversity should detract from finding "an equal and co-ordinate obligation" by each parent to support the child.
18 Moreover, whilst Bruest v Commissioner for Railways [1957] 31 WCR 131 produced the quoted observation that "the child looks to its father as the principal breadwinner of the family" that should not in contemporary society alter the fact that a child will no less rely on its mother as its father fulfilling an equal and co-ordinate obligation to provide support.
19 This approach is wholly consistent with that taken by the Court of Appeal in Holdlen Pty Limited v Walsh (supra). There Giles JA observes "dependence does not look only to the fact of receipt of support, but also to reliance on another to provide it. Total dependence is not incompatible with the fact of receipt of support from someone else" (at [51]).
20 Turning to the present case, as the transcript makes clear (Black, 21 and 25) counsel then appearing for the applicant pressed, so far as he was allowed to, that here was a situation where the applicant was wholly dependent upon her deceased mother for support no less than on the father. He briefly cited the decisions to which earlier reference has been made. The trial judge, with respect, appears to have instead applied an erroneous test of dependency in which the focus, as his reasoning indicates, was simply on a calculation of relative contribution. Indeed even that analysis points to a substantial contribution by the mother of a kind which the appellant in her less than affluent circumstances must have found essential for her support, no less than that which she enjoyed from her father.
21 When one turns to the actual working of ss25 and 26 of the Act the interpretation pressed by the appellant finds support. Section 25 is predicated upon the prerequisite of there being dependants who are "wholly dependent for support on the [deceased] worker". Somewhat confusingly the section concludes with a definition of "dependent child of the worker". That is, however, the expression employed in s25(1)(b) when dealing with the weekly payment as distinct from the earlier lump sum. The definition of that phrase is "a child of the worker who was wholly or partly dependent for support on the worker" [emphasis added]. Nonetheless the opening words of s25 introduce the earlier quoted prerequisite for s25 to apply, namely the circumstance that "the worker leaves any dependants wholly dependent for support on the worker". That initially would suggest that each of the ensuing subparagraphs (a) and (b) are premised upon "dependants wholly dependent for support". If correct, that would preclude a dependent child who was only partly dependent for support on the deceased worker from receiving either the lump sum or the weekly payment in subparagraphs (a) and (b) respectively.
22 Despite this tangled drafting, I am inclined to agree with the submission of the appellant that s25(1)(b) makes available the weekly payment indiscriminately to a child of the worker who is either wholly or partly dependent for support on that worker. That is more logical than the corollary that, in the adventitious circumstance where there was but one child wholly dependent for support on the deceased worker, other dependants who were but partly dependent for support on that worker should nonetheless qualify for both lump sum and weekly allowance. That would be wholly illogical and therefore tells against the interpretation which gives rise to that corollary. The very fact of a claim by someone wholly dependent must leave less not more available for other dependants. Thus I would accept the alternative interpretation of s25 that renders the lump sum in s25(1)(a) ($211,850) as available only to dependants (children or otherwise) who are wholly dependent for support on the worker. However, the weekly payment would be available indiscriminately to a child of the worker who was either wholly or partly dependent for support on the deceased worker. Importantly, that weekly payment is only payable for the period that the child is either under the age of 16 years or, being a student, is over the age of 16 years but under the age of 21 years, being the circumstance here.
23 From this it must follow that were I wrong in my conclusion that the appellant was wholly dependent for support on her mother as the deceased worker, nonetheless she would be entitled to the weekly allowance pursuant to s25(1)(b) but not the lump sum payable under s25. Her rights would otherwise fall for determination under s26. Therefore in default of agreement as to the amount to be paid that amount is determined by the Commission as that which is reasonable and proportionate to the injury suffered by the appellant from her mother's death (s26(c)). That would leave appeal ground 3 in issue, namely, whether the trial judge was in error in holding that the sum of $7,500 was reasonable and proportionate to the injury received by the appellant. But it would resolve appeal ground 4 in favour of the appellant.
24 In an exchange between Bench and Bar an alternative interpretation of the two sections was briefly considered. That interpretation would import into s26 not only the lump sum payment but also the capacity to award a weekly payment. The latter would derive from s26(a) with its reference to "the amount that would have been payable under s25 if those dependants had been wholly dependent on the worker".
25 However, in the result that I consider to be correct, namely, that the appellant was wholly dependent upon her deceased mother, that question does not arise. This is because the determination should correctly have been made under s25 of the Act at the maximum figure of $211,850 (adjusted upwards according to the indexation formula) for the lump sum and $66.60 per week (likewise adjusted) in respect of the weekly allowance. The latter would only be during the period that the appellant was over the age of 16 years and under the age of 21 years and was a student, thus excluding in the latter case the year in which she did not enrol in her studies.
26 There is one final issue to be considered. It is whether this present appeal in terms of the jurisdictional requirement of s32 of the Compensation Court Act 1984 (NSW) involves a question of law. The distinction between questions of law and fact arises here in the context of judicial review of a decision of the Compensation Court. That is a specialised tribunal whose decisions are reviewable only on a question of law.
27 Here, the appeal is brought by the party bearing the onus of proof in claiming qualification for the full amount of the lump sum and the weekly allowance. It is not an appeal by the other party where the issue is typically whether there is evidence to support a finding in favour of the party with the onus of proof.
28 In Ambulance Service of New South Wales v Daniel (2000) 19 NSWCCR 697 at 711-12 Hodgson CJ in Eq followed Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 in adopting a particular discrimen for distinguishing questions of fact from questions of law. But importantly, that discrimen arises in the sufficiency of evidence category of challenge. Hodgson CJ in Eq concluded that in that context the question of sufficiency of evidence is a question of fact when the appeal is brought by the party bearing the onus of proof, whereas it is a question of law when such an appeal is brought by the other party without that onus. This is because in the latter case the appeal is essentially whether the evidence is capable of supporting the finding under challenge.
29 Here, the challenge is not to the sufficiency of evidence to support a particular finding. Rather it is whether facts fully found fall within the provisions of the relevant statutory enactment properly construed. That is classically a question of law; Hope v the Council of the City of Bathurst (1980) 144 CLR 1 at 7 per Mason J. Hope (supra) was a case in which the challenge was brought by the party with the onus of proof.
30 Even in sufficiency of evidence cases, where the party with the onus of proof can demonstrate that "a judge's reasons show that he or she made a finding of fact relying exclusively on material that could not as a matter of law support that finding … they will disclose an error of law"; Hodgson CJ in Eq in Ambulance Service of New South Wales (supra) at 718 [81].
31 The proposition that a finding contrary to the weight of evidence, even a perverse finding, is not an error of law, is subject to exception. As Glass JA explains in Azzopardi, an error of law may occur after the facts are found at the second stage, following fact-finding, should the tribunal misdirect itself as to the law. It can also occur at the third and final stage when applying the law to facts found, if the tribunal fails to reach the only conclusion reasonably open:
"At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test ... will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open ... Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of the law to the facts found." [at 157]
32 It is apparent the trial judge did misdirect himself as to the law when determining the question of dependency. He looked solely to the fact of receipt of (financial) support when, as Giles JA concluded in Holdlen Pty Limited (supra) "dependence does not look only to the fact of receipt of support, but also to reliance on another to provide it". Nowhere does the trial judge consider the legal obligation of the deceased mother to provide that support nor the reliance placed by the appellant on her mother, no less than her father, to discharge that obligation. Had he done so, no other conclusion was reasonably open than that the appellant was wholly dependent on her mother (as well as her father).