JUDGES:	ASHLEY, REDLICH and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 and 13 October 2008
DATE OF JUDGMENT:	5 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 241

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Accident compensation – Claim for compensation by widow of deceased worker – Whether claimant wholly or mainly dependent upon earnings of deceased at time of his death – Deceased and claimant employed by corporate trustee of discretionary family trust – Deceased and claimant directors of, shareholders in, and principal employees of trustee – Small amounts paid by trustee to deceased and claimant as wages, together with much larger distributions from profits of trust – Whether earnings of deceased included trust distributions – Whether employment agreement that, in return for his work, deceased would be paid in part by wages and in part by distribution of profits earned – Appeal against decision in favour of claimant dismissed.

Accident Compensation Act 1985, ss 92A, 92B.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr R P Gorton QC	Herbert Geer & Rundle
with Mr P H Solomon
For the Respondent	Mr T J Casey QC	Shine Lawyers
with Mr B G Anderson
ASHLEY JA:

On 19 July 2007 a judge of the County Court ordered that the appellants, Azzopardi Haulage Pty Ltd (‘the company’) and Victorian WorkCover Authority, pay compensation to the respondent, Rita Azzopardi, pursuant to ss 92A and 92B of the Accident Compensation Act 1985 (‘the Act’) and as well pay the reasonable costs of the services referred to in s 99 of the Act. The orders were made upon a finding that the respondent was a partner wholly or mainly dependent on the earnings of the late Mario Azzopardi (‘the deceased’ or ‘the worker’). Now the company and the Authority appeal. They argue, primarily, that the evidence was incapable of establishing that the respondent was dependent upon the deceased’s ‘earnings’ to the required extent.
The appeal
By s 52(1) of the Act, an appeal from a decision such as this is only available ‘on a question of law raised during those proceedings’. I discussed the application of that composite concept in Victorian WorkCover Authority & Anor v Game,[1] and must say more about it later.
[1] (2007) 16 VR 393, 395-397, particularly 396 and 397 [13]-[15], [19]-[21].
Ordinarily, one would go to the grounds of appeal to discern the issues raised by the appeal. But in this case, the submissions made for the appellants in this Court focused upon two of three ‘questions of law’ said by the notice of appeal to be ‘involved’ in the appeal, rather than upon the stated grounds of appeal. Later I will say something about that course. For the moment, however, I should set out the identified questions of law and the grounds – but excluding a question, and two related grounds,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Azzopardi Haulage Pty Ltd v Azzopardi

Details

AGLC: Azzopardi Haulage Pty Ltd v Azzopardi [2008] VSCA 241
Case: [2008] VSCA 241
Decision Date: 5 December 2008

CaseChat Overview and Summary

Azzopardi Haulage Pty Ltd brought an appeal against the decision of the Workers' Compensation Nolicionary Tribunal that allowed a claim by the widow of a deceased employee of the company. The widow was awarded compensation under the Accident Compensation Act 1985, and the tribunal had found that she was wholly or mainly dependent on the deceased's earnings at the time of his death. The company argued that the tribunal had erred in concluding that the widow was wholly or mainly dependent on the deceased's earnings. The company contended that the deceased and his widow were directors, shareholders, and principal employees of the trustee of a discretionary family trust, and that the deceased and the widow had received small amounts paid by the trustee to them as wages, together with much larger distributions from the profits of the trust. The company argued that the tribunal had erred in concluding that the deceased's earnings included the trust distributions, and that the employment agreement provided that, in return for his work, the deceased would be paid in part by wages and in part by distribution of profits earned.

The Court of Appeal found that the tribunal had not erred in concluding that the widow was wholly or mainly dependent on the deceased's earnings at the time of his death. The Court held that the deceased and his widow were not genuinely employees of the trustee of the discretionary family trust, but rather were its directors, shareholders, and principal employees. The Court held that the deceased's earnings included the trust distributions, and that the employment agreement provided that, in return for his work, the deceased would be paid in part by wages and in part by distribution of profits earned. The Court held that the tribunal was entitled to conclude that the widow was wholly or mainly dependent on the deceased's earnings, and that the appeal should be dismissed.

The Court of Appeal dismissed the appeal, and held that the decision of the tribunal was correct. The widow was entitled to compensation under the Accident Compensation Act 1985, and the tribunal had not erred in concluding that she was wholly or mainly dependent on the deceased's earnings at the time of his death. The Court held that the deceased's earnings included the trust distributions, and that the employment agreement provided that, in return for his work, the deceased would be paid in part by wages and in part by distribution of profits earned. The Court held that the tribunal was entitled to conclude that the widow was wholly or mainly dependent on the deceased's earnings, and that the appeal should be dismissed with costs.

Orders