Azzopardi Haulage Pty Ltd v Azzopardi

[2008] VSCA 241

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3759 of 2007

Appellants AZZOPARDI HAULAGE PTY LTD

(ACN 076 137 347) and

VICTORIAN WORKCOVER AUTHORITY

v

Respondent RITA AZZOPARDI

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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:

1. 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

2. 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].

3. 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, which were not pursued.[2]

   [2]              Question C (i) and (ii). Grounds 9 and 10.

4. The questions are as follows:

A.  Was there any evidence adduced at trial able to support:

(i)          any of the findings that:

(a)	the deceased was working long hours;
(b)	the deceased’s ‘earnings’, within the meaning of s 92A of the Act, were other than $17,800 per annum;
(c)	it was illogical that the deceased would have been working for $17,800 per annum;
(d)	the plaintiff’s ‘earnings’, within the meaning of s 92A of the Act, were other than $5,400 per annum;
(e)	any trust distribution formed part of the ‘earnings’ of the deceased or of the plaintiff, within the meaning of s 92A of the Act;
(f)	the terms of employment of the deceased or the plaintiff by the trustee, Azzopardi Haulage Pty Ltd, had any bearing on how, when or to whom a distribution of funds from the Trust might be made.
(ii)	the conclusions that:
(a)	the distribution from the trust fund to the plaintiff was part of her ‘earnings’, within the meaning of the Act;
(b)	the distribution from the trust fund to the deceased was part of his ‘earnings’, within the meaning of the Act;
(c)	the plaintiff was wholly or mainly dependent on the earnings of the deceased;
(d)	the ‘pre-injury average weekly earnings’ of the deceased, within the meaning of s 92B of the Act, were in excess of $1,130 per week.

B. On the evidence adduced (if any) as to the terms and conditions of the deceased’s employment, was it open to conclude that the deceased’s ‘pre-injury average weekly earnings’, within the meaning of s 92B of the Act, were (i) other than $17,800÷52; (ii) in excess of $1,130 per week.

1. The grounds are as follows:

1. The trial Judge erred in law in failing to differentiate between ‘earnings’ (within the meaning of s.92A of the Act) from employment, on the one hand, and other income of each of the deceased and the plaintiff, on the other.

No evidence

2.	The trial Judge found that the deceased was working long hours, and thus it was illogical that the deceased would have been working for $17,800 per annum. There was no evidence to support such a finding, and in so finding the trial Judge erred in law.
3.	The trial Judge found that it was reasonable to expect that each of the deceased and the plaintiff worked for said wages ‘in the anticipation’ of further remuneration. There was no evidence to support such a finding, and in so finding the trial Judge erred in law.

4.             The trial Judge found that, without expectation of the trust distribution, each of the deceased and the plaintiff would have been in a position to require considerably increased earnings by way of wages. There was no evidence to support such a finding, and in so finding the trial Judge erred in law, and ‘further’, took into account an irrelevant consideration.

5.           The trial Judge concluded that the plaintiff was wholly or mainly dependent on the deceased’s earnings. There was no evidence to support such a conclusion, and in so concluding the trial Judge erred in law.

6. The trial Judge concluded that the deceased’s ‘pre-injury average weekly earnings’, for the purposes of s.92B of the Act, were in excess of $1,130 per week. There was no evidence to support such a conclusion, and in so concluding the trial Judge erred in law.

Terms and Conditions of Employment

7.             There being no evidence as to the terms and conditions of the deceased’s employment, it was not open to conclude that the deceased’s ‘pre-injury average weekly earnings’ were in excess of $1,130 per week.

8.           Alternatively to ground of appeal 7, on the evidence adduced it was not open to the Court to conclude that the earnings of the deceased were other than, or different from, the amounts returned as wages in the deceased’s income tax returns.

Reasons for Decision

9.           The trial Judge failed to provide adequate reasons in reaching the conclusion that the plaintiff was a dependent partner of the deceased, and thus erred in law.

10.         The trial Judge failed to provide adequate reasons in reaching the conclusion that the deceased’s ‘pre-injury average weekly earnings’ were in excess of $1,130 per week, and thus erred in law.

1. The relief sought by the appellants is that the order below be set aside, and that the proceeding be remitted for re-hearing in accordance with law.

   The issue at trial

2. It was alleged and admitted that the respondent was the widow of the deceased, that he was at material times a ‘worker’[3] employed by the company, and that he suffered fatal injuries, in compensable circumstances, on 5 December 2005. In the event, there was a single live issue: had the respondent been wholly or mainly dependent upon her late husband’s earnings.

   [3] That is, within the meaning of the Act.

   The trial

3. No viva voce evidence was led at the trial. By agreement, a number of documents were put into evidence on the footing that they stood as evidence of the facts therein contained. Those documents were:

• A letter dated 1 April 2006 sent to an investigator[4] by the accountant
who acted for the company, the deceased and the respondent.

• The tax returns of the Mario Azzopardi Family Trust for the financial
years ended 30 June 2005 and 30 June 2006.

• The individual tax returns of the deceased and the respondent for the
years ended 30 June 2005 and 30 June 2006.[5]

[4]              Presumably acting on behalf of the appellants.

[5]              In the case of the deceased, lodged by his executrix for the year ending 30 June 2006.

1. The accountant’s letter said this:

   Mr. Azzopardi originally had a simple Partnership Business with his wife as a partner in his transport business. He worked exclusively for EATMORE POULTRY and after a number of years he was asked, the same as all other transport drivers at EATMORE, to incorporate otherwise they were unable to provide him with work.

   At that point we incorporated AZZOPARDI HAULAGE PTY LTD, as trustee for the ‘Mario Azzopardi Family Trust’. Mario and Rita were the Directors, Shareholders and Office Holders of that setup. Mario Azzopardi drove the Truck and generated the income which provided for the family, while Rita took care of the administrative side and all the paperwork associated with the business.

   This continued until the fatal accident in December 2006. About 12 months before the accident Mario’s son, Mark Azzopardi joined his father’s family business as an employee and was driving a second truck registered under the business. Mark Azzopardi also worker exclusively for Baiada, exactly in the same manner as his father. …

   ‘Baiada’, several times referred to by the accountant, was Baida Pty Ltd, the
   company which traded as ‘Eatmore Poultry’.

2. In addressing the learned judge, counsel for the respondent expanded to an extent upon the evidence conveyed by the documents. Counsel for the appellants took no exception to the judge relying upon the truth of what was stated. This reflected the informal way in which relevant material was adduced at trial. Before us, counsel for the appellants (who was not trial counsel) accepted that the judge had been entitled to rely upon what had been stated. Indeed, he also relied upon aspects of that material.

3. What counsel for the appellants added was this:

• When Mark Azzopardi, the son of the deceased and the respondent, began to drive for the company - about 12 months before the deceased’s death - the business, which had hitherto operated one truck, acquired a second truck.

•	The deceased performed deliveries and maintained the trucks – at first one, latterly two – owned by the company.
•	The day to day financial arrangements of the deceased and the respondent were as follows:
The [respondent] did the bookwork for the business and each week the [respondent] would draw a cheque on the company’s bank account to pay wages to the deceased and to herself. She would spend her wages on the food and he would spend his wages on the recurrent household expenses. The company had a trading account at Westpac in St Albans and the deceased and the [respondent] would take drawings from this account over the course of a year to pay both expenses of the business and some of their own private expenses.
The account was run as a directors’ loan account and at the end of the financial year, the current year profit of the company was distributed. Some of it was distributed to grandchildren, but the bulk of it was to the deceased and the [respondent]. That trust distribution was recorded as taxable earnings in the individual taxation returns and they paid income tax upon it.

1. Other than the documents to which I have referred, and the supplementary information provided by respondent’s counsel, the parties tendered written analyses of the financial documents. Save in one respect, those analyses were only marginally different in their interpretation of the documents. The significant difference was that the respondent’s analysis referred to trust and individual tax returns for the year ending 30 June 2004. Those returns, it seems clear, did not go into evidence. Accordingly, what appellants’ counsel had to say about them must be ignored. That will do the appellants no disservice. The particular tax returns did nothing to assist the appellants’ case. Probably, see later, they did the converse.

   The statutory regime

2. Section 82(2) of the Act[6] founds a dependant’s entitlement to compensation:

   If there is caused to a worker an injury arising out of or in the course of any employment which results in or materially contributes to the death of the worker, the worker’s dependants shall be entitled, subject to this Act, to compensation in accordance with this Act.

   [6]              See also the definition of ‘dependant’ in s 5.

3. It was not in dispute that s 82(2) was satisfied in this case - at least because a dependant as defined includes a person partially dependent upon the earnings of a worker.

4. Quantification of compensation is provided for by ss 92-92C of the Act.[7] In the present case, ss 92A and 92B were relevant.

   [7] The interrelationship between ss 82(2) and 92A was explained in Serdzeff v Victorian WorkCover Authority (2005) 14 VR 43. What I have thus far said, and what I say further about the application of ss 92A and 92B, reflects that explanation.

5. Section 92A deals with compensation payable to both ‘dependent partner(s)’ and ‘partially dependent partner(s)’. A ‘dependant partner’ is defined by subs (1) to be -

   … a partner wholly or mainly dependant on the worker’s earnings’.

   The respondent claimed to be such a person. If she established her claim, the amount payable was fixed, in the particular case, by subs (3) at $250,000.

6. Subs (2) is of key importance:

   In determining, for the purposes of this section, whether a partner was wholly or mainly dependent on the worker’s earnings at the time of the death of the worker or other relevant time, no regard shall be had to any money which the partner had earned or was earning by his or her own personal exertion or to any savings arising from any such earnings.

7. Section 92B provides for payment of a weekly pension in addition to payment of a lump sum under s 92A. Thus, relevantly -

(3)	If the worker leaves one, and only one, dependant partner, the partner is entitled to a weekly pension at the rate of –
(a) during the first 13 weeks after death –

(i)          95 per cent of the worker’s pre-injury average weekly earnings; or

(ii)         $1130 –

Whichever is the lesser; and

(b)         from the end of the first 13 weeks after the death until the end of 3 years after the death –

(i) unless subparagraph (ii) or (iii) applies, 50 per cent of the worker’s pre-injury average weekly earnings or $1130, whichever is the lesser; …

1. I should mention also s92B(1). It provides that -

(1) Words and expressions defined in section 92A have the same meaning
in this section as in that section.

1. In the event, three concepts required consideration and application for the purposes of resolving the respondent’s claim:

• ‘The worker’s earnings’, for the purpose of the definition of
‘dependent partner’ in s 92A(1).

• ‘Any money which the partner had earned or was earning by … her own personal execution’ – for the purpose of the application of s 92A(2).

• ‘The worker’s pre-injury average weekly earnings’, for the purposes of
s 92B(3)(a)(i), and (3)(b)(i).

The income of the deceased and the respondent

1. The submissions of counsel at trial, the judge’s reasons, and the submissions made in this Court can only be understood against the background of an analysis of the documents which were put into evidence. I have already referred to the accountant’s letter, and to counsel’s elaboration of certain matters. I go to the tax returns.

2. The trust tax returns show the following:

Year Ending 30 June 2005	$
Business income	449168
Total expenses	323755
Net profit	125413

Interest 6384

Taxable income 131797

Wages paid to directors	23200
Other wages paid	62895
Distribution to deceased	61652
Distribution to respondent	61653

Distributions to 11 other persons 8492 in all

Number of trucks: 2
(one old, one acquired July 2004)

Year Ending 30 June 2006	$
Business income	347628
Total expenses	268958

Net profit	78676
Interest	10205[8]
Taxable income	88875
Wages paid to directors	14300
Other wages paid	43776
Distribute to deceased	30000
Distribute to respondent	51927

[8]              The balance sheet showed a considerable amount of cash at bank both as at 30 June 2005 and 30 June 2006.

Distribution to each of nine

other persons, 6948 in all

Number of Trucks: 2

1. Pausing for a moment, the trust tax returns show, inter alia –

• The decrease in the company’s business income which, by inference,
was a consequence of the deceased’s death on 5 December 2005.

• The debiting of wages paid to directors – not to be confused with
directors’ fees.

• The amount of the wages paid, as the judge inferred, to Mark Azzopardi for operating one of the trucks. In each of the years ending 30 June 2005 and 30 June 2006 it was an amount greatly exceeding the amount paid to the deceased as wages.[9] The judge said that there was no evidence – he must have meant direct evidence - of the recipient of the item, ‘other wages paid’, in the 2005/2006 accounts. But the accountant’s letter suggests that the inference which his Honour later drew was the probable explanation of the line item in the 2004/2005 and 2005/2006 accounts. It was reasonable to assume that Mark Azzopardi had not worked for the company for nothing. Moreover, there was no evidence that anyone except the three family members had been employed by the company. Further, in light of the relatively modest, though not insubstantial scale of the company’s operations it seems very unlikely that it could have afforded to pay wages in the amounts set out in the line items in respect of another person or persons.

• Distributions to each of 11 beneficiaries of $772 in 2004/2005, and of a like amount to each of 9 beneficiaries in 2005/2006. These beneficiaries, it was evidently common ground, were grandchildren of the deceased and the respondent. Two of the beneficiaries attained the age of 16 years in the year 2005/2006.

[9]              In the latter case, extrapolating wages to show the amount that would have been paid in the full year.

1. I go to the deceased’s individual tax returns. They show the following:

Year ending 30 June 2005	$
Wages	17800

(Tax withheld $2400)

Interest 467

Trust distribution 61652

Deductions Nil

Taxable income	79919
Year ending 30 June 2006	$

Wages 8900

(Tax withheld $1200)

Interest 282

Trust distribution 30000

Deductions Nil

Taxable income 39182

1. Now I must refer to the respondent’s individual tax returns, which show the

   following:

Year Ending 30 June 2005	$
Wages	5400
(No tax withheld. Below taxable threshold)
Trust distribution	61653
Deductions	Nil
Taxable income	67520
Year Ending 30 June 2006	$
Wages	5400
(No tax withheld)
Trust distribution	51927
Deductions	Nil
Taxable income	57826

1. The following circumstances emerge from consideration of both the trust and the individual returns:

• In each year, the entirety of the profits of the trust were distributed –
very largely to the deceased and the respondent.

• The trust paid no tax on its profits. But the deceased and the respondent disclosed their distributions from the trust as taxable income. This was not, then, a case of an attempt to avoid the incidence of tax. Rather, as emerged from the accountant’s letter, incorporation of the company had been obliged by Baiada as a condition of the deceased continuing to get work; and the trust structure was a sensible extrapolation of the obligation to incorporate.

• Neither the deceased nor the respondent made a claim, for tax purposes, that their spouse was dependent upon them. That can be explained simply. In each case, the other’s income from all sources exceeded the non-taxable threshold. That says nothing about the present issue.

The competing analyses of the figures

1. Speaking generally for the moment, the appellants submitted, both below and

   in this Court, that -

• The deceased’s ‘earnings’ did not include the trust distributions. They
were confined to what he was paid as wages by the company.

• Likewise, what the respondent earned by ‘her own personal exertion’ was confined to what she was paid as wages. The trust distribution therefore had to be brought to account in determining whether she was wholly or mainly dependent upon the deceased’s earning.

1. This analysis, if correct, doomed the respondent’s claim to failure. The figures would look like this:

Year ending 30/6/05	Deceased’s earnings	$ 17800	Respondent’s non-earnings income	$67520
Year ending 30/6/06	Deceased’s earnings	$ 8900	Respondent’s non-earnings income	$51927
(part year)	(whole year)

1. Again speaking generally for the moment, counsel for the respondent submitted, below and in this Court, that the trust distributions together with wages paid reflected the ‘true’ earnings of both the deceased and the respondent. That analysis, if correct, meant that the claim must succeed.[10] The figures would look like this:

   [10]             It would not be correct to compare the respondent’s whole of year earnings for the year ending 30 June 2006 with the deceased’s part year earnings so as to deny relevant dependency.

Year ending 30/6/05	Deceased’s earnings	$79452	Respondent’s earnings	$67520
Year ending 30/6/06	Deceased’s earnings	$38900	Respondent’s earnings	$57826
(part	(whole
year)	year)

The arguments at first instance

1. In the course of submissions in this Court, an issue which was not squarely raised below by either party, and which the learned judge addressed somewhat indirectly, was considerably debated. It is arguable that the notice of appeal could be read to extend to that issue. Whether that is a permissible course in the context of the case as it was argued and decided is a matter requiring consideration. On the respondent’s argument in this Court, it was impermissible. In the event, it is necessary to see what was argued and decided in the County Court.

2. Counsel for the respondent –

(1)	First drew attention to the particularly relevant statutory provisions, ss 92A and 92B.
(2)	Identified the sole defence – that his client was not wholly or mainly dependent upon the earnings of the deceased.
(3)	Identified the matters of common ground.
(4)	Referred to the content of the accountant’s letter; and tendered the letter.
(5)	Set out the additional circumstances to which I referred at [11].
(6)	Tendered the trust and individual tax returns;
(7)	Demonstrated that the distributions made to the respondent and her husband in the year ending 30 June 2005, added together with the small amounts paid to the grandchildren, exactly amounted to the profits of the business; and that this was also the case for the year ending 30 June 2006;
(8)	Demonstrated that both the deceased and the respondent had included the trust distributions in their taxable income in each of the years in question.
(9)	Having analysed the tax returns, said this:

Your Honour, the whole point of going through that exercise was to make you familiar with the way the profits were being distributed and to demonstrate that Mr Azzopardi, before his death, had not one form of income, that is wages, he had, leaving aside the interest, he had two forms of income. He had the wages and he had his share of trust distribution of the profits of the company.

(10)

Then identified three pertinent authorities: Serdzeff v Victoria WorkCover Authority,[11] Glazebrook v Accident Compensation Commission[12] and Paterson v Stanmorr Pty Ltd & Another.[13] The first authority was cited for the proposition, as I perceive it, that all the moneys received by the respondent were to be excluded when considering whether she was wholly or mainly dependent upon her late husband’s earnings.

(11)

Having submitted that –

[11] (2005) 14 VR 32.

[12] [1988] VR 454.

[13] (2000) 2 VR 460.

. . . at the heart of the issue in this case is whether the worker’s pre-injury average weekly earnings are limited to the wages paid by the company or, as we would put it, it is not only wages, but it is also the trust distribution

referred the judge to the definition of ‘pre injury average weekly earnings’ in s 5A of the Act. In that connection, submitted that sub s 5A(1)(a) did not apply

because the deceased was a managing director/working truck driver and was not working like a man who works in the bank, 38 hours per week, week by week.

(12) Submitted that the relevant definition was that contained in s 5A(6)(b):

If an ordinary time rate of pay is not fixed for the worker’s work under the terms of the worker’s employment, the ordinary time rate of pay shall be deemed to be the average weekly rate earned by the worker during the relevant period under subsection (1),

for which reason, adding together wages and trust distribution, the deceased had earned, in the year ending 30 June 2005, and in the part year ended 5 December 2005, well over the limit of $1130 per week set by s 92B(3).

(13) That exercise having been undertaken, cited Paterson for the proposition that pre-injury average weekly earnings could include something other than cash paid.

(14) In that context, cited the proposition that ‘earnings means the full sum
for which the man is engaged to work’. But then submitted that –

Essentially, what this court said in this case was traditionally earnings in workers compensation legislation is to be given a broad interpretation rather than a restricted one. At paragraph 46 in this case it says, ‘Thus, it can, I think, be said that historically the word ‘earnings’ included all rewards for labour, both in cash and in kind and the use in sub-s. (6)(b) of the expression ’the average rate earned’ points in that direction.’ We use this authority for the purpose of pointing out that where ‘earnings’ is used in this legislation, it simply doesn’t stop at wages paid to an employee.

(15)	Cited Glazebrook as a case emphasising the proposition that earnings do not stop at wages paid to an employee.
(16)	Summarised his argument (concerning s 92B) this way:

… when considering that expression in s 92B of the legislation, you give it a broad interpretation, you give it an interpretation which includes not only wages but also the distribution of profits to which the plaintiff became entitled by means of his exertion and his work and in that event the earnings of the deceased exceeded the $1130 as mentioned in the legislation.

(17) Submitted that the respondent’s s 92A entitlement was $250,000 because the Court had to disregard all moneys which she had received. Even if only deceased’s wages were taken into account, necessary dependency was established.

1. Pausing for a moment, it seems to me that the thrust of counsel’s argument was that both the wages paid and the trust distributions made to the respondent and her late husband should be characterised as earnings because the concept of earnings should be given a liberal application. That was so because, according to the authorities, earnings are not confined to wages paid; and because, in this case, the deceased’s pre-injury average weekly earnings were not to be determined by application of s 5A(1).

2. Counsel did refer to earnings being ‘the full sum for which the man is engaged to work’. That identified the issue which in oral argument in this Court was much debated. But counsel did not clearly submit that the agreements – I use that word to mean the individual contracts of service - under which the deceased and the respondent worked for the company were to the effect that necessary work would be done in return for payment of wages and the making of a profit distribution.

3. I go to the submissions for the appellants below. Counsel submitted that –

(1)

There had been ‘no case like this before’. The respondent was seeking to say that ‘earnings’ meant or included distribution from a family trust.

(2)

The case was unlike Paterson or Glazebrook, where ‘each plaintiff was undoubtedly an employee, indubitably concerned with earnings, and the only question was the ambit of earnings’. Glazebrook had been paid an amount, out of which he had to bear expenses. It was plain that his ‘earnings’ had been what he was paid. Paterson had been paid a money sum, and had her keep provided. If she had wanted to do so, she could have asked for a greater amount and agreed to provide for herself.

(3) Counsel for the respondent had been wrong in his submission that the judge was statute-bound to ignore the respondent’s receipt of the trust distributions. Section 92A(2) required that regard be had to it. Such distribution was

. . . not, on any view, earnings by the plaintiff by way of personal exertion; anymore than the distribution to the … grandchildren.

There were two reasons for that:

. . . first, because in this case the evidence makes it clear, since [counsel for the respondent] has tendered the DBB report suggesting that the income is generated in this sense by the deceased and his son in the last 12 months; and second, because as a matter of law we say income from a trust distribution is not income from personal exertion and that comes from just one passage in Tindal v Federal Commissioner (1946) 72 CLR 608.

(4)	By reason of what had already been submitted, the receipt by the respondent of the trust distribution could not be ignored, whilst the earnings of the deceased amounted to $17800 in a full year. That established the necessary comparison.
(5)	‘Earnings’ could not be construed to include the trust distribution to the deceased. It means ‘what you do or promise to do in return for what your employer pays you’. Here, the deceased was paid $17800 a year for what he did.
(6)	Paterson, relied upon for the respondent, stood for the proposition that earnings ‘are of a kind which are intended to form a valuable part of the reward for the [worker’s] services’; and for the proposition that earnings are ‘the amount which a person is entitled to be paid in law, whether by reference to an agreement or statute’. Here, the agreement was to pay $17800. There was no agreement to pay the distribution amount by way of earnings. That was a trust distribution.
(7)	Husher v Husher[14] which concerned the investigation of loss of earning capacity in a common law context, had concerned a partnership at will in which the plaintiff had generated all the income. It was decided that the jury had been entitled to consider that his loss of earning capacity could be measured by the lost partnership profit. But that said nothing about ‘earnings’ in the present statutory context.
(8)	In summary:

[14] (1999) 197 CLR 138.

Firstly, as a matter of law it is not open to find that the trust distribution was earnings under the Act. Secondly, as a matter of law the deceased’s earnings under the Act were $17,800. Thirdly, the only income to be ignored in the plaintiff under the fiction is $5400.

Fourthly, as a matter of law it is not open to find the plaintiff is wholly or mainly dependent (a) because she has a non-ignorable income – I’ll take an example - $61,653 in 2005 which cannot be ignored under 92A(2) and therefore she cannot be wholly or mainly dependent when the ‘earnings’ of the deceased were $17,800.

Alternatively, even if – and we say Your Honour shouldn’t find this, for the reasons we’ve said – but even if you said that the $61,652 in the deceased was earnings, even if you said that, then it’s got to be compared to the $61,653 income of the plaintiff, which you cannot by statutory fiction ignore; therefore, you could not find the plaintiff to be wholly or mainly dependent.

1. I pause to make three observations. First, the submission that the trust distribution received by the respondent was not money earned from her own personal exertion in part depended upon the argument that the work done to generate the company profits had been performed by the deceased and his son; and that she had not personally exerted in order to receive the trust distributions, any more than the grandchildren had done in order to receive their small distributions. That argument treated as irrelevant the book-work which the respondent did as a necessary part of the company’s operations.

2. Second, Tindal was a tax case. Whether moneys received by a beneficiary constituted income from personal exertion depended upon the application of a definition in the Income Tax Assessment Act 1936-1940 (Cth).

3. Third, as in the case of the submissions made for the respondent, the appellants’ submissions almost entirely focused upon whether the trust distributions could be characterised as ‘earnings’ or ‘money … earned … by … own personal exertion’. Only at one point, in meeting the respondent’s reliance on Paterson, did counsel refer to earnings being the amount paid pursuant to the agreement between the deceased and the company; and he did so by submitting that the distributions had been made pursuant to a discretionary trust – as if it necessarily followed that such payments were incapable of being payments made pursuant to an employment agreement.

4. Counsel for the respondent, in reply, addressed the issue of earnings from ‘own personal exertion’. He referred to the definition of a similar but not identical phrase in s 134AB(38) of the Act, and submitted that what was required was to look at the character of the trust distributions to see whether they were income from personal exertion consistently with that definition. Here, the income of husband and wife ‘must include the profit derived by the company by the personal exertion of she and her husband’.

5. Counsel further submitted that ‘earnings’, given the necessary liberal interpretation, meant ‘the package’ - not only the money paid as wages, but ‘all that which was given for the personal exertion of that person, which can be derived in many ways’. Here, ‘the package’ was the wages and the profit share which was allocated to each of the deceased and the respondent. The language of 92A(2), taken together with Tindal, did not stand in the way of a conclusion favourable to the respondent.

6. In summary, counsel for the appellants, and counsel for the respondent in his initial submissions, made fleeting reference to earnings being what a person is entitled to be paid by agreement for work performed; whilst in his reply, by referring to a ‘package’, respondent’s counsel implied the existence of agreements that earnings for work performed were in this case made up of wages paid and distributions made. Acknowledging such references, the submissions for both sides concentrated upon the reach of ‘earnings’, and the alleged inhibition conveyed by the expression ‘money … earned … by … own personal exertion’. Insofar as counsel for the appellants submitted that earnings are the amount which a person is entitled to be paid by reference to agreement or statute, he simply went on to contend that the agreement in the present case had been to pay the deceased $17800 a year. He said nothing about the form which an agreement might take; or why it was that it could not be inferred that the company, acting by its directors and shareholders (the deceased and his wife), had informally but effectually agreed with the main employees of the company (also the deceased and his wife) to regularly make distributions of the large proportion of any profits earned by the company in part remuneration for the work which they respectively carried out for the company. So also, respondent’s counsel said nothing, in his initial submissions, or in reply, which directly addressed those matters.

   The reasons of the County Court judge

7. The learned judge said that he did ‘not propose to distinguish’ between the terms ‘earnings’ in s 92A(1) and ‘pre-injury average weekly earnings’ in s 92B(3)(a)(i) and (b)(i). The critical word was ‘earnings’.

8. His Honour referred to several authorities pertaining to the concept of ‘earnings’. One of them was Paterson, where the applicant had been employed as a guest-house manager on terms which provided for a weekly wage plus keep. The question there had been whether the value of food and accommodation should be taken into account in calculating pre-injury average weekly earnings. This Court held that it should. His Honour saw relevance in Paterson. He said this:

   [counsel for the appellants] had no difficulty in accepting the Court of Appeal decision [in Paterson], in substance finding that earnings meant the package. He went on to say that commonsense tells you [that Ms Paterson] would not have taken $450.00 a week as the wage if it did not also include these other things; she could have negotiated a different package. She could have said, ‘Okay, pay me $600.00 a week and I’ll pay for my own food’ and on that analysis it is a matter of commonsense.’

   and

   This submission presents the [appellants] with some difficulty. It was not disputed that the deceased, Mario Azzopardi, was working long hours, and whilst the company financially maintained the truck, it is illogical that the deceased would have been working for $17,800.00 for the financial year ending June 2005, that is, less than $400.00 gross per week. Similarly, it is unlikely [the respondent] would have performed the administration and paperwork in the business for $5,400.00 per annum, marginally over $100.00 per week, although I note no specific evidentiary material was placed before the Court as to the hours required of [the respondent]. It is reasonable to expect that both the deceased and the [respondent] were prepared to work for such wages in the anticipation of further remuneration, as contained in a remuneration package, for their respective personal exertion in the performance of their duties for the business. Both the deceased and the [respondent], without expectation of the trust distribution, would have been in a position to require considerably increased earnings by way of wages and, accordingly, applying the same reasoning as submitted by [counsel for the appellants] as to Paterson, the Trust distribution should be treated as earnings. (my emphasis).

9. His Honour then noted a submission made by counsel for the appellants that the trust distributions made to the respondent did not fit within the description ‘money … earned … by … personal exertion’ which is found in s 92A(2), and noted counsel’s reliance on Tindal. His Honour said this:

   I accept the submission on behalf of the [respondent], that the relevant Trust distribution was income, being profit, which prior to the deceased’s death was in general created in the business through the personal exertion of the deceased and the [respondent], together with Mark Azzopardi, as an employee truck driver, not receiving any Trust distribution, but I infer, receiving a substantially greater wage than the deceased or the [respondent].

1. Thereafter his Honour referred to the definition of ‘income from personal exertion’ in s 134AB(38) of the Act. He did not explain, I think, precisely what advantage he gained from doing so - although the phrase is reminiscent, as I have said, of the concept of money earned from own personal exertion which is found in s 92A(2).

2. Then his Honour made these findings:

   On consideration of the circumstances of the conduct of the business, the simple partnership of the deceased and the [respondent] in conducting the business before being required to incorporate the company, as set out in Exhibit ‘A’, the method of payment to the deceased and the [respondent] by way of wages and trust distribution from the profits of the business, I find that the Trust distribution was part of the remuneration package of both the deceased and the [respondent] and as such were earnings within the meaning of the Act, not to be dissected from their wages as referred to in their personal Taxation returns, contained in Exhibit ‘B.’ (my emphasis)

   and

   I find, on the balance of probabilities, keeping in mind their extremely low directors’ wages as described in the trust taxation returns, that were the deceased and the [respondent] not in receipt of their respective trust distributions, that each of them would have been paid considerably more by way of wages and it is not for this Court, on the material before the Court, to engage in an analysis of the appropriate remuneration for the deceased and the [respondent]. Accordingly, I find that the statutory fiction, as provided by s 92A(2), is applicable to the [respondent’s] wages as supplemented by the Trust distribution and were earnings, as a result of her own personal exertion. Similarly in relation to s 92B(2), that the deceased’s pre-injury average weekly earnings, on inclusion of the Trust distribution, were in excess of $1,130.00 per week. (my emphasis)

   and

   On applying the statutory fiction, the [respondent] did not receive income. She was a partner wholly or mainly dependent upon the deceased worker’s earnings and, accordingly, her claim pursuant to s 92A(4) is established, and similarly, her entitlement to a weekly pension pursuant to s 92B(3)(a) and (b) is also established.

   Submissions on the appeal

   The appellants

3. The main submissions advanced for the appellants, in writing, were that –

(1)	A finding or conclusion not open on the evidence, or based upon no probative evidence, will constitute an error of law.
(2)	The evidence at trial was incapable of supporting each of the findings and conclusions which are articulated in question of law A at [4] above.

(3)	… the Firstnamed appellant used capital equipment to generate income. The income generated by the business belonged to (or, accrued to) the Firstnamed Appellant, and through it to the family trust. Any profit, after wages and expenses and tax, was profit of the Firstnamed appellant held by it for the purposes of the family trust. No evidence as to the terms of the family trust was produced to the Court at first instance. There is no evidence which would permit a conclusion that any beneficiary had any entitlement to any of the trust fund, prior to a trust resolution concerning such distribution.
(4)	There is no evidentiary basis for concluding that the relevant distributions made were made pursuant to (or in accord with) the terms of employment of the deceased or of the Respondent. Nor is there any basis for concluding that the distributions were paid pursuant to any employment agreement, or as a reward for any personal exertion.
(5)	Earnings within the meaning of s 92A mean earnings from personal exertion – the contractual reward for performance of an employment contract(s). Earnings do not include interest on invested funds; the return on capital. A gift or distribution from a discretionary fund, whatever the source of income of the fund, does not fall within the ordinary meaning of earnings; nor within the meaning of that term when used in s 92A of the Act.
(6)	There was no evidence as to when, how or why the trust distributions were made to the beneficiaries. There is no evidence to justify a conclusion that wages agreed and paid to the deceased and the Respondent were not in fact the remuneration which they agreed for the performance of their employment. As it happens, an agreement for comparatively low wages might well be seen as financially beneficial to the trust, in reducing payroll tax and employment insurance premiums.

1. I pause for a moment, to make this observation. The matters in respect of which there was claimed to be no evidence were the matters identified by the notice of appeal as questions of law A(i)(a)-(f), (ii)(a)-(d). They were not identical with the five matters in respect of which, according to the grounds of appeal, there was claimed to be no evidence,[15] and with the two conclusions which, it was claimed, were not open.[16]

   [15]             Grounds 2-6.

   [16]             Grounds 7 and 8.

2. A question of law which is raised by a proceeding, and the ground or grounds said to disclose error in the determination of that question, are distinct. In the present case, the principal question of law which arose was whether there was any evidence upon which the learned trial judge was entitled to conclude that the respondent was a wholly or mainly dependent partner of the deceased worker. That question was apt to raise both issues of statutory construction[17] and of ‘no evidence.’ Those issues should have been developed by means of the grounds of appeal. But here the questions of law and the grounds of appeal were so admixed that, in support of the appeal, the former (which were not altogether replicated in the latter) were relied upon. That is unsatisfactory. But I think that the Court need not require an amended notice of appeal to be filed. Rather, it is able to deal with the merits of the appeal, treating the questions of law, as addressed by the submissions, as identifying both the questions and the grounds upon which error is said to be established.

   [17]             The reach of ‘earnings’; the meaning of ‘moneys … earned … by … own personal exertion.

3. In his principal oral submissions, counsel for the appellants –

(1)	Emphasised that ‘earnings’ is what the employer agrees to pay for services rendered, or is payable by operation of law.
(2)	Accepted, to an extent qualifying the fifth of his written submissions noted above, that a distribution by the trustee of a discretionary trust to a person who is both a beneficiary of a trust and an employee of the trustee might be ‘earnings’ in a particular instance; but submitted that no such inference was available in this case, the only agreements between the deceased and the company, and between the respondent and the company being agreements (as inferentially disclosed by the trust and individual tax returns) made by decision of the deceased and the respondent as directors of the company to pay wages in the amounts recorded.
(3)	Submitted that it was possible to infer reasons why the wages were set at the amounts paid – avoidance or reduction in payroll tax, accident compensation premium reduction, PAYG reduction, allowing for profits distribution via the trust to the grandchildren.
(4)	Rejected a possible analysis that the circumstances of the case suggested that the deceased and the respondent had operated as a quasi partnership. The respondent, counsel submitted, was seeking to rely upon incorporation to press her claim. To allow her to go behind incorporation would be permitting her to approbate and reprobate.
(5)	Submitted that the issue about ‘agreement’, raised by (1) above, and expanded upon by (2)-(4) above, had been raised at trial.
(6)	Submitted that it was proper to refer the respondent’s application back for retrial, so that the respondent should be able to fully agitate the agreement issue, insofar as it had not been fully exposed below. [18]

[18]             With respect to the last of those submissions, and to make the position quite clear, counsel did not submit that this Court should determine that the respondent’s claim must fail.

The respondent

1. The main submissions advanced for the respondent were that –

(1)	Tindal v Federal Commissioner of Taxation,[19] relied upon at trial by the appellants, was no longer called in aid by them.
(2)	The appellants were seeking that the appeal be allowed and that the proceeding be remitted for retrial in order that they could conduct a new trial on different issues to those upon which the matter had already been litigated.
(3)	Insufficiencies of evidence now identified by the appellants –

[19] (1946) 72 CLR 608.

(i)          failure to produce the Mario Azzopardi Family Trust deed;

(ii)	failure to produce minutes of director’s meetings of the trust company;
(iii)	failure to produce evidence of the nature, value or time involved in the work undertaken by the son, Mark Azzopardi;
(iv)	failure to produce evidence as to the terms and conditions of the deceased’s employment;
(v)	failure to produce evidence as to the terms and conditions of the respondent’s employment;
(vi)	failure to produce evidence that the deceased was working long hours;
(vii)	failure to produce evidence that the distributions from the trust to the deceased and the respondent were made pursuant to (or in accord with) the terms of employment of the deceased or the respondent;

(viii) failure to produce evidence that the distribution of trust monies to the deceased or the respondent were a reward for any personal exertion.

were not criticisms made at trial.

(4)	If the appellants had made the criticisms of the state of the evidence which they now did, the respondent would have applied to re-open her case so as to call the respondent, her son and the accountant.[20]
(5)	The trial judge had been entitled to make the findings which he did, which were based upon direct evidence, or upon inference from direct evidence.
(6)	Looking at the history of the financial arrangements, which had initially been a sharing of profits of a business conducted in partnership by husband and wife, and thereafter a business conducted by means of family trust, it was evident that the husband and wife would draw a wage which did not represent the value of the services provided by each of them to the business, but that each was to receive by way of reward for their labour a division of the annual profits of the business in addition to wages paid. To illustrate this point, in the 2005 financial year Mark was paid $62,895 wages but the deceased was paid wages of only $17,800. Mark was paid none of the profits of the business but the deceased was paid $61,652 from the profits, the remainder (after gifts to the grandchildren) being paid to the respondent; equally the respondent was paid wages for her services of only $5,400 which was the same figure in the 2004, 2005 and 2006 years. Yet she received a share of profits in these years measured by the profits derived by the company less the share paid to the deceased.
(7)	The fact that the trust had distributed its annual profit to the deceased and the respondent (leaving aside the gifts to the grandchildren), and that those sums were declared as income by the deceased and the respondent in their tax returns, raise the clear inference that the distribution of the profits was made pursuant to an arrangement between the deceased and the respondent as the directors of the company and the deceased and the respondent as employees of the company that they would be rewarded for their personal exertion in running the business by payment of a share of profits as well as wages.

[20]             The last-mentioned of whom, it seemed to be undisputed, had died within a few weeks of the trial.

For that reason, his Honour’s finding as to the ‘remuneration package’ of the deceased and the respondent was one which he was entitled to make.

1. In his principal oral submissions, counsel contended that -

(1)	It was unnecessary that there be a formal agreement between deceased or the respondent and the company as to the making of distributions as part of ‘earnings’. It would suffice that there was ‘an arrangement’ to that effect.
(2)	The basis upon which distributions had been made should be assessed in a common-sense way, which had regard to the relationship between the deceased, the respondent and the company of which they were directors, in which they were the shareholders, and of which they were employees. In essence, that is how the learned trial judge had approached the matter.
(3)	Evidence that the deceased and the respondent had conducted a partnership, and that incorporation had been forced upon them, justified a conclusion that in substance nothing changed in their financial relationship. In essence, the partnership had continued. The tax records showed, aside from the small distributions to the grandchildren, that this was so. The amounts paid as wages were evidently inadequate recompense for the work performed by each of them.
(4)	The most likely hypothesis was that there had been an agreement or arrangement of the kind described, even though making of distributions could be otherwise explained.
(5)	Assuming that the trust structure could have been used to minimise tax liability in respect of profits earned, that had not been done.
(6)	The appeal should be dismissed on the basis of the approach in the line of High Court authority culminating in Whisprun Pty Ltd v Dixon.[21] But in any event the findings made by the learned trial judge justified his conclusion – implicit rather than explicit – that the distributions had been made pursuant to an agreement to include such distributions, which were therefore earnings.

[21] (2003) 77 ALJR 1598.

Resolution of the appeal

Four questions

1. The following questions arise in connection with this appeal.

2. First, was the question whether there was no evidence which enabled conclusions that the employment agreements of the deceased and the company were relevantly that, in return for their labour in the business operated by the company, they were to be paid in part by wages and in part by a distribution of profits earned, a question which was ‘raised during [the] proceedings [before the County Court]’?

3. Second, and related to the first question, does the principle described in Whisprun operate, and if so, how, in respect of a question of law which was embedded in the proceeding below, but which was not raised – in the sense of being articulated – during the proceeding in the County Court?

4. Third, was a distribution of profits earned by the company as trustee for the Mario Azzopardi Family Trust capable of being ‘earnings’ when made to the deceased, and ‘money … earned … by … own personal exertion’ when made to the respondent?

5. Fourth, was there any evidence[22] that the employment agreements of the deceased and the respondent were relevantly of the kind described in question 1 above, and thus that the earnings of the deceased and the respondent included distributions of trust profits? If there was such evidence, it followed that the respondent had been wholly dependent upon deceased’s earnings; and that his average weekly earnings exceeded $1130 per week.

   [22]             The positive converse of ‘no evidence’.

6. In my opinion, the third and fourth questions should be answered ‘yes’. Further, and although it goes beyond what is necessary to decide the appeal, I consider that the evidence justified an affirmative answer to the fourth question on a balance of probabilities; and that the learned judge below may be taken to have so answered it.

7. In the event, the first and second questions need not be answered. It is, however, my provisional opinion, consistently with what I said in Victorian WorkCover Authority and another v Game,[23] that the first question was not raised during the County Court proceeding; and that, viewed through the Whisprun prism in one way or another, the appellants should not have been entitled to raise that question on this appeal.

   [23] (2007) 16 VR 393.

   The third question

8. It is a notable fact that three different phrases are used to describe relevant income (again I use a neutral word) in ss 92A(1), 92A(2) and 92B(3)(i), (b)(i) of the Act: ‘worker’s earnings’, ‘money earned … by … own personal exertion’ and the ‘pre-injury average weekly earnings’. Never let it be said that the Accident Compensation Act errs in favour of consistency of language.

9. ‘Earnings’ is not defined by the Act. Neither is ‘money … earned … by … own personal exertion’ defined, although a similar phrase, ‘income from personal exertion’, is defined by s 134AB(38) for the purposes of assessment of ‘serious injury’ in accordance with sub-ss (16) and (19) of that section.[24] ‘Pre injury average weekly earnings’ is defined, expansively, in order to address a variety of situations, by s 5A of the Act.

   [24] The definition states that the phrase ‘has the same meaning as in s 6(2) of the Transport Accident Act 1986’. In the latter Act, the phrase is defined to mean –

10. In the end, however, with one exception the differences in language were not said to be of significance. It was not in debate that ‘earnings’ is a word, where used in the Act, which is of wide import. It is capable of embracing payments in cash or kind.[25] It may embrace the entirety of moneys paid, even though the recipient must bear expenses out of what has been paid.[26] Limitations inherent in the concept, found in s5A(1), of ‘ordinary time rate of pay for … ordinary number of hours per week’,[27] do not preclude consideration of the value of non-cash items - at least in the circumstances dealt with by s 5A (6) (b) and (d) of the Act, and probably more broadly.[28]

    [25]             Paterson v Stanmorr Pty Ltd and Another (2000) 2 VR 460, 469-471, [18]-[22] (Winneke P), 481, [46] 483, [52] and 485 [58] (J D Phillips JA).

    [26]             Glazebrook v Accident Compensation Commission [1988] VR 454, 456-457 (Full Court).

    [27]             See Catlow v Accident Compensation Commission (1989) 167 CLR 543, Robertson v Accident Compensation Commission [1991] 2 VR 333.

    [28]             Paterson v Stanmorr Pty Ltd and Another (2000) 2 VR 460, particularly 468-470, [16]-[19], 471,[22], 472, [24], 473-474, [26] (Winneke P); 479, [43], 482-484,[51]-[54] and 485, [58] (J D Phillips JA, with whom Batt JA agreed).

11. Against that background, appellants’ counsel did not contend that a distribution of profits could never be a component of earnings. That would have been a hopeless proposition. Neither, as I noted earlier, did he contend that a discretionary distribution of part of the profits earned by the trustee of a trust to a person who was both employed by the trustee and was a beneficiary of the trust could never be a component of earnings. His submissions were rather that there was no evidence that the distributions were of such a character in this instance; and, in the case of the respondent, that such a distribution would not have been, in any event, money earned by her own personal exertion.

12. It is convenient to deal with the second of those submissions straightway. I reject it. Its acceptance depended upon the distributions being unrelated to the employment agreement between the respondent and the company. If the distributions were made in consequence of that agreement, and were not simply an exercise by the trustee of its assumed discretion to distribute profits to the various beneficiaries, then it was incorrect to say that the distributions made to the respondent were no different – in the sense of not having been earned – to the distributions made to the grandchildren. I add that Tindal,[29] understandably, was not relied upon by the appellants in this Court. Founded on particular statutory language, it did not assist their case.

    [29]             Tindal v Federal Commissioner of Taxation (1946) 72 CLR 608.

    The fourth question

1. ‘Earnings’, as Lord Macnaghten put it long ago, are -

   the full sum for which the man is engaged to work.[30]

   [30]             Abram Coal Co Ltd v Southern [1903] AC 306, 308, cited with approval many times, including by the Full Court (Crockett, O’Bryan and Vincent JJ) in Glazebrook v Accident Compensation Commission [1988] VR 454, 457. See also Paterson v Stanmorr Pty Ltd and another (2000) 2 VR 460, 469, [19] (Winneke P), 479, [44] (J D Phillips JA). Phillips JA also referred (480-481, [45]) to the different factual situations, exposing the same principle at work, which arose in Great Northern Railway Co v Dawson [1905] 1 KB 331 and Simmonds v Stourbridge Glazed Brick and Fire Clay Co Ltd [1910] 2 KB 269.

2. The same notion appears in authorities dealing with the expression, found in s 5A of the Act, ‘calculated at the worker’s ordinary time rate of pay for the worker’s normal number of hours per week’. The language used to describe that concept has not been identical, but I think that the differences have been of form rather than of substance.

3. In Catlow v Accident Compensation Commission,[31] Mc Hugh J said that it seemed natural to read the expression as a reference to the –

   ordinary time rate of pay for the worker’s standard or ordinary hours
   

   [31] (1989) 167 CLR 543, 560-561.

   per week fixed by award, agreement or contract. (my emphasis).

4. In Scott v Sun Alliance Australia Ltd,[32] the meaning of the expression ‘ordinary time rate of pay’ was said to be the product of the standard hourly rate multiplied by the standard number of hours

   fixed by legislation, industrial award or agreement. (my emphasis).

   [32] (1993) 178 CLR 1, 5.

5. Again, in Robertson v Accident Compensation Commission[33] Crockett and Southwell JJ stated that ‘ordinary time rate of pay’-

   has reference to the pay fixed by the relevant award or contract of employment …
   

   [33] [1991] 2 VR 333, 339-340.

   (my emphasis).

6. In the event, the constant theme is that ‘earnings’, by this measure, are to be determined by reference to whichever one or more of a worker’s individual employment contract, an arbitrated award, a collective agreement not embodied in an award, or legislation, is or are pertinent in the particular case. In the present case, if the distributions were paid as earnings, it could only have been by operation of the respective employment contracts.

7. Appellants’ counsel was therefore correct in submitting, in this Court, that the existence of an obligation[34] to make the distributions, as part of the amounts paid for the performance of work by the deceased and the respondent for the company, was the sine qua non of such distributions being ‘earnings’. But this is not to say that such contracts must have been express; or that they must have been in a particular form. A relevant agreement might be implied.[35]

   [34]             Here, by the terms of employment contracts.

   [35]             Within the last-mentioned category, there appears to be a sub-class of case in which the parties, as Nettle JA put it in Husain v O & S Holdings (Vic) Pty Ltd [2005] VSCA 269, [51], ‘drift into a contractual relationship’. Ormiston JA discussed authorities bearing upon the existence of such a sub-class in Vroon BV v Fosters Brewing Group Ltd [1994] 2 VR 32, 79-83.

8. In the present case, respondent’s counsel did not contend that there was evidence of an express agreement before the County Court. He argued, in part, that it would be enough if there was evidence of ‘an arrangement’ pursuant to which the distributions were made as part of the reward for services rendered to the company. If by that he meant that it was enough that there had been an agreement between the parties which was not attended by formality, I agree with his submission. And if he meant that a consideration of all the circumstances in which the distributions were made might lead to the conclusion, founded in inference, that they had been made pursuant to an informal agreement between the parties that such distributions were to be made as part of the reward for services rendered, then I also agree with his submission. But if he meant that it was enough if there was something less than an agreement which imposed a binding obligation upon the company to make the distributions which it did, then I do not agree.

9. Upon the question whether, as the appellants assert, there was no evidence to support certain intermediate findings made by the learned trial judge, and no evidence to support his Honour’s ultimate conclusions, two circumstances should be immediately noted. First, any obligation to make distributions to the deceased and the respondent as part of the reward for their labour must have been sufficiently certain. But I do not consider that this means that it must have been dollar certain. For instance, I consider that it would be enough if the company had agreed to distribute the profits[36] which had been earned in any year to husband and wife on an essentially equal basis, except to the extent that distributions were made to other discretionary beneficiaries.

   [36]             Or perhaps such proportion of those profits as its directors resolved could be distributed consistently with commercial propriety.

10. Second, it was implicit in the accountant’s letter, and argument proceeded upon the footing, that the trust was a family discretionary trust. Absent production of the trust deed, or of directors’ resolutions concerning the distributions, it was at least an available inference that the distributions were simply made in the ordinary exercise of the trustee’s discretion. But it was not argued for the appellants that a court was constrained to decide that the distributions must have been made on such a basis, because otherwise it would have impermissibly intruded upon the exercise of the trustee’s discretion.

11. It is next convenient to reflect upon the learned trial judge’s analysis of the matter. In my opinion, his approach can be fairly summarised this way:

• The deceased and the respondent received income (once again using a
neutral word) of two kinds from the company.

• One of those kinds of income, ‘wages’, was unarguably ‘earnings’.

• ‘Earnings’ having an extensive connotation, it could not be said that
the trust distributions fell outside the reach of the term.

• In the case of the respondent, the distributions, if they were earnings, had been earned by her personal exertion in the service of the company.

• The wages paid by the company to the deceased and the respondent were abnormally low for the work performed – particularly in the case of the deceased.

• The distributions made to each of the deceased and the respondent should be characterised as ‘earnings’ because such distributions were part of their ‘remuneration packages’. They would not have worked for the low wages which they did had they not anticipated or expected that they would receive such distributions. They would have otherwise have been paid substantially greater amounts as wages.

1. All but the last two steps in that reasoning were concerned with characterisation of the income received. The last two steps, in combination, provided a rationale why the trust distributions, which were able to be characterised as earnings, should be so characterised in this case.

2. Had his Honour simply concluded that the trust distributions were part of the remuneration packages of the deceased and the respondent, it would have been an almost inevitable inference that he regarded their employment contracts as providing for such payments.

3. His Honour did not simply conclude, however, that the distributions were part of the remuneration packages. In arriving at that conclusion, he adverted to the expectation and anticipation of the deceased and the respondent that such distributions would be made; and to what they would have been paid as wages had the distributions not been made.[37]

   [37]             See the passages in his reasons which I set out, with emphasis, at [42] and [45].

4. Expectation and anticipation of payment of the distributions, and a conclusion that the deceased and the respondent would otherwise have been paid greater amounts in wages, are circumstances which might, but would not necessarily, lead to a conclusion that the distributions were paid under legal obligation. I am inclined to think that his Honour did reach that conclusion. The concept of a remuneration package suggests something founded in obligation rather than discretion. The question in issue in any event, is whether there was any evidence which permitted a conclusion that the distributions were made under the respective employment agreements. The answer to that question does not necessarily depend upon acceptance of each step in the judge’s path of reasoning.

5. The attack upon the orders made below, as pursued in this Court, was not that the learned judge misdirected himself as to what could constitute ‘earnings’, or as to the need, if monies received were to be characterised as earnings, that they be paid as part of the agreed award for work performed; but rather that there was no evidence to support particular findings of fact and pertinent conclusions.

6. Only a few intermediate findings of fact were attacked as being unsupported by any evidence. See questions of law A(i)(a) and (c) and (perhaps) (f). Otherwise, the attack focused upon his Honour’s conclusion that the trust distributions formed part of the earnings of the deceased and the respondent, this inevitably leading him to the four conclusions identified in question of law A(ii).

7. In my opinion it was definitely open to the judge to infer that the deceased worked long hours. As I earlier noted, respondent’s counsel observed at trial, and the contrary was not suggested, that the deceased was ‘a managing director/working truck driver and was not working like a man who works in the bank, 38 hours per week, week after week’. That was said in the context of a submission that s 5A(6)(b) and (d) of the Act applied to the deceased’s circumstances. Further, it was not an assertion, in terms, that the deceased worked more than 38 hours per week – although it implied that such was the situation. So perhaps not too much could be made of counsel’s remark. The trust returns, however, showed that the company’s business earnings and net income were quite substantial – the latter, despite the significant amount of wages paid to the son. As counsel for the respondent submitted, ‘the net income earned by the company was more than twice the wages paid to’ the son in 2004/2005; and the income of the business dropped nearly $100,000 in 2005/2006, during which year the deceased worked only 22 weeks. Those circumstances justified the inference now under consideration.

8. I next consider that it was open to the judge to conclude on the evidence that it was illogical that the deceased would work for $17,800 in the year ended 30 June 2005.[38] If that was to be the entirety of the reward for his labour, it was surely a very inadequate amount – as the judge noted, less than $400 per week. Moreover, it was less than $400 per week in a business which generated net income, after paying that wage, of more than $125,000. Let it be assumed that payment of a low wage to the deceased would reduce, inter alia, necessary PAYG and accident compensation premium payments by the company. It did not follow that a finding was not open that it was illogical for the deceased to work for the company for only $17,800 a year.

   [38]             And for a comparable wage in the financial year which ended with his death in December 2005.

9. I turn to the proposition, made by question of law A(i)(f) that there was no evidence ‘able to support … the finding that … the terms of employment of the deceased or the [respondent] by the [company] had any bearing on how, when or to whom a distribution of funds from the Trust might be made.’ The proposition assumes that the judge did make such a finding. As I have already explained, it is arguable that he did so, notwithstanding that the issue was not squarely raised by counsel at trial.

10. I do not agree with the proposition that there was no such evidence. To the contrary, I consider that there was evidence which enabled a conclusion that the employment contracts of the deceased and the respondent were to the effect, inter alia, that for their work for the company they would be rewarded by payment of wages and by an essentially equal distribution of the large part of any profits earned by the company.

11. I agree with the submission by counsel for the respondent that, although the distributions could be explained as a simple exercise of the trustee’s discretion, the more probable hypothesis is that the monies were paid as part of the agreed earnings packages. I agree also with his submission that the content of the terms of the employment of each of the deceased and the respondent should be determined by consideration of all the circumstances, and in a common sense way.

12. The following matters, taken in conjunction, seem to me to have enabled the drawing of an inference that the distributions were part of the agreed earnings of the deceased and the respondent:

•	The history of the structure of the business preceding its incorporation. It was a ‘simple business partnership’ conducted by husband and wife until Baiada – no doubt to reduce various actual or potential liabilities, including liability to pay accident compensation premium against the prospect that the deceased would be accounted a deemed worker – insisted that it must deal with a company. The shares in partnership profits would have represented, prima facie, the reward for the work performed in conducting the partnership by the deceased and the respondent respectively.
•	Incorporation followed Baiada’s demand. Sensibly, as I said earlier, a trust structure was adopted. That enabled a share of any profits to be distributed to the grandchildren. But it is the fact that the lion’s share of the profits continued to be distributed almost equally between husband and wife, and that all of the company’s annual profits were distributed. That was true for 2004/2005 and (save as affected by the husband’s death) for 2005/2006. It was also true, according to the appellants’ analysis at trial, for 2003/2004. But I put the analysis for that year to one side because, as I noted earlier, the tax returns for that year did not get into evidence.
In the event, the pattern of distributions suggests that the company operated as a quasi partnership in which the distributions were a part of the agreed reward for services rendered to the company by the deceased and the respondent. So to conclude does not mean that the respondent’s case involved approbating and reprobating the incorporation. It simply explains, having regard to the past conduct of the business, and the circumstances forced upon the deceased and the respondent, the probable basis upon which the company’s financial affairs proceeded.

• The wages paid to the deceased, particularly, and to his wife were

extremely low. In the case of the deceased, they may be compared with the wages paid to the son. The drop in the company’s business earnings after the death of the deceased puts to rest any suggestion that his wages should not at the very least have approximated his son’s wages. The company’s financial results for 2005/2006 also show, I add, that the son’s work must have been substantial, for the company still earned quite considerable business income that year despite the death of the deceased in early December 2005.

• The small amount of wages paid to the deceased, particularly, and to the respondent, taken together with the amount of the distributions (which, added to the small distributions made to the grandchildren exhausted the company’s profits in 2004/2005 and 2005/2006) is suggestive that the distributions were part of the agreed reward for services rendered by them to the company. Further, the manner in which the deceased and the respondent accounted for the distributions showed that the trust was not conducted so as to minimise tax. Rather, the largest part of the company’s profits were distributed almost equally between husband and wife, and in a way that led to them being part of their taxable income.

• The deceased and the respondent were directors and office bearers of, and shareholders in, the corporate trustee. Except for their son, they were its only revealed employees. No employment agreements between the company and the individuals were put in evidence. It would be unsurprising if, in the particular circumstances, there were no formal agreements. In any event, upon such evidence as was before the County Court it seems to me to have been open to infer that the employment agreements were informal; and that, taken in conjunction with the other circumstances to which I have referred, they provided in part that the deceased and his wife would reward themselves, in return for their work, by making distributions to themselves of the lion’s share of any profits earned by the company.

• Neither the trust deed nor directors’ resolutions concerning the

distributions were put into evidence. One cannot speculate as to their content. The distributions could have been made as they were in fact made without the distributions being, in the case of the deceased and the respondent, part of the agreed award for the work performed by them for the company. But it does not follow, on consideration of the entirety of the revealed circumstances, that it was not more likely that the distributions were made to the deceased and the respondent on the latter basis.

The first question

1. In Victorian WorkCover Authority & Anor v Game[39] I said this -

   [39] (2007) 16 VR 393.

   Section 52(1) of the Act confers a right of appeal. But it is a confined right. It is a right of appeal ‘on a question of law raised during [the] proceedings’ which culminated in the impugned judgment or decision.

   The language of s 52(1) varies from, and is arguably more restrictive than, the language of ss 92 and 109 of the Magistrates Court Act 1989 and of s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 – each of which confers a right of appeal ‘on a question of law’, as the case may be, from a final order, or an order of the first instance entity.

   On the other hand, in Green v Victorian WorkCover Authority Tadgell JA said that s 52(1) should receive ‘much the same interpretation’ as had been accorded s 52(1) of the Administrative Appeal Tribunal Act 1984 in Transport Accident Commission v Hoffman. In Hoffman, the statute permitted an appeal ‘on a question of law, from a decision of the tribunal’. Young CJ and McGarvie J construed the provision as granting a right of appeal from a decision ‘on a question of law which is involved in the tribunal’s decision.’ A question whether there was any evidence upon which the tribunal could have reached its decision was, their Honours said, such a question. (Footnotes omitted)

   …

   That leaves the question whether the subject-matter of proposition 1 engages s 52(1). Its substance lies in the contention, which could have been advanced at trial – but was not – that the evidence was incapable of supporting a conclusion that Mr Game was working under a contract of service when he suffered his fatal injuries.

   and

   The key is the language of s 52(1). If that provision is given a Hoffman-like meaning - which may be said to run counter to ordinary principles of statutory interpretation by treating considerably different statutory language as having substantially the same meaning - the probable consequence is that an evidentiary question is to be treated as having been raised during the proceedings when in truth it was not. What the evidence connotes in a particular proceeding is pre-eminently a matter for consideration by the trial judge. Matters of impression can be important, particularly where the arrangement between parties was an informal one. If an appellant can raise a ‘no evidence' contention on a s 52(1) appeal, although it was not raised at trial, this Court will never know whether, inter alia, the judge at trial would have found some matter of impression to be important. It could not be said that the judge’s actual reasoning, set in a context defined by particular submissions, would have been the same had a different context been set. Nor could it be said that, by looking at a transcript, this Court would be in as good a position as the trial judge to pass upon a matter of impression. These considerations, having regard to the particular language of s 52(1), seem to me to stand in favour of that provision being given a more restrictive meaning than the provision considered in Hoffman.

   So, if it mattered, as at present advised I doubt that the issue sought to be agitated by proposition 1 was, within the language of s 52(1), a question of law raised during the proceedings below. In expressing that conclusion I have not forgotten that the proposition (which accords with the language of grounds 1-3) is not couched in terms of there being no evidence to support the relevant conclusion, but rather in the language that the conclusion was not available on the facts found. So framed, the enquiry focuses on the question stated by Wilson and Dawson JJ in Stevens v Brodribb Sawmilling Company Pty Ltd. Where it is not suggested that there was no evidence to support findings of fact, the question whether those findings are capable of supporting an ultimate conclusion is no different, in substance, to the question whether there was any evidence to support that conclusion. (Footnotes omitted)

1. Whether those tentatively expressed views were or were not correct was not the subject of submissions in the present case. There is no occasion for me to depart from them.

2. I have extensively described the way in which the trial proceeded before the County Court judge. My analysis of what was submitted leads me to conclude, consistent with the approach which I tentatively adopted in Game, that the ‘no evidence’ question, directed to whether the distributions were made as part of the agreed reward of the deceased and his wife by the company for their services, was not a question of law raised during the County Court proceeding.

   The second question

3. In Whisprun Pty Ltd v Dixon[40] the majority (Gleeson CJ, McHugh and Gummow JJ) carefully analysed the issues ventilated at trial and then on appeal and concluded that ‘the case formulated by the Court of Appeal was never run at the trial.[41]

   [40] (2003) 77 ALJR 1598.

   [41] Ibid 1707, [50].

4. Their Honours said this –

   It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.

   As Water Board v Moustakas makes clear, a point may be a new point even though it is within the pleadings or particulars. The pleadings and particulars are frequently decisive in determining whether a party is seeking to raise a new point on appeal. But they are not conclusive. To determine whether a party is raising a new point on appeal, it is ‘necessary to look to the actual conduct of the proceedings.’ (Footnotes omitted)

5. Whether a point taken on appeal was a point agitated at trial, one might think, ought not be too difficult to determine. Whisprun shows that is not necessarily so. That said, I consider, for the reasons which I have already attempted to explain, that the appellants did seek to raise a new case on the appeal.

6. If this was a general appeal, of the kind considered in Whisprun, what the majority said in that case should yield the result, I think, that the appellants were disentitled to put the new case on appeal. That is so even though it lay with the respondent to prove her case at trial, and though, as the appellants would now have it, there was a gap in the proofs. Had any such submission been made at trial, it seems likely that the respondent would have sought to address it by evidence – most particularly of the respondent and the accountant. That is what counsel for the respondent stated he would have done; and it seems logical that he would have done so. Whilst the content of the additional evidence cannot be known, it can at least be said that the respondent was deprived of the opportunity of meeting the submission which was not made by adducing additional evidence.

7. But the appeal provided for by s 52(1) of the Act is not a general appeal. It is an appeal of a more confined character. It seems to me, provisionally, that two analyses are possible in such circumstances.

8. The first possible analysis is that the application of s 52(1) is limited in the way which I postulated in Game. In that event, it could only be said that the application of Whisprun would yield the same outcome; or perhaps underline why s 52(1) should be read in such a way. The second possible analysis is that, if s 52(1) should not be read as I postulated in Game, then Whisprun might be regarded as a basis – particularly if a respondent was denied the opportunity of adducing additional evidence – why a question of law which was not in substance raised at the trial[42] ought not be permitted to be pursued on an appeal.

   [42]             That is, as distinct from it being ‘involved’ in the decision at trial.

   Orders

9. In my opinion the appeal should be dismissed.

REDLICH JA:
97	I agree for the reasons given by Ashley JA that the appeal should be

dismissed.

DODDS-STREETON JA:

1. I agree with the disposition proposed by Ashley JA, for the reasons his

   Honour has stated.

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(a)           the amount that is the income of that person consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered; and

(b)          the proceeds of any business carried on by that person either alone or in partnership with any other person; and

…
(f)	interest, unless that person's principal business consists of the lending of money, or unless the interest is received in respect of a debt due to that person for goods supplied or services rendered by the person in the course of the person's business; or
(g)	rents or dividends;