Bird v Palazzolo - [2009] NTMC 54

CITATION: Bird v Palazzolo [2009] NTMC 054

PARTIES: Bird

v

Frank Charles Palazzolo

TITLE OF COURT: WORK HEALTH COURT

JURISDICTION: Work Health

FILE NO(s): 20817485

DELIVERED ON: 2 November 2009

DELIVERED AT: Darwin

HEARING DATE(s): 20 October 2009

JUDGMENT OF: R J Wallace

CATCHWORDS:

Workers Compensation – “normal weekly earnings” – Workers Rehabilitation and Compensation Act (NT) s 49(1)

REPRESENTATION:

Counsel:
Worker: S Gearin
Employer: P Barr SC

Solicitors:
Worker: Ward Keller
Employer: Cridlands MB Lawyers

Judgment category classification: C
Judgment ID number: [2009] NTMC 054
Number of paragraphs: 12

IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20817485

BETWEEN:

BIRD
Worker

AND:

FRANK CHARLES PALAZZOLO
Employer

REASONS FOR JUDGMENT

(Delivered 2 November 2009)

Mr R J WALLACE SM:
1. This is an application for worker’s compensation pursuant to the Workers Rehabilitation and Compensation Act (“the Act”). For the time being the only live issue to be determined in relation to that application concerns the normal weekly earnings (“NWE”) of the Worker (who, it seems, prefers to be known simply as “Bird” – hence the somewhat unusual title of the proceedings). This issue has been reduced, so far as the Court is concerned, to a pure question of law, owing to the sterling work by the lawyers for both parties, who have produced a Statement of Agreed Facts of Worker and Employer (“the Agreed Facts”) set out in full below. Accordingly, a hearing listed for three days was reduced to legal argument of about one hour; my task was greatly simplified (for which I am grateful); the costly use of court time was avoided, and a magistrate made available to expedite other work. The public too, should be grateful.
2. The question of law is not particularly complicated, but I cannot find a way elegantly to state it, so, inelegantly:
A. NWE is defined in s 49(1) of the Act which provides:
““normal weekly earnings”, in relation to a worker, means-
(a) subject to paragraphs (b), (c) and (d), remuneration for the worker’s normal weekly number of hours of work calculated at his or her ordinary time rate of pay;
(b) in the case of a worker who had entered into concurrent contracts of service with 2 or more employers under which he or she worked full-time at one time for one employer and part-time at another time for one or more other employers – the gross remuneration for the worker’s normal weekly number of hours or work calculated at his or her ordinary time rate of pay in respect of his or her full-time employment;
(c) in the case of a worker who had entered into concurrent contracts of service with 2 or more employers under which he or she worked part-time at one time for one employer and part-time at another time for one or more other employers –
(i) the gross remuneration for the worker’s normal weekly number of hours of work calculated at his or her ordinary time rate of…

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.

Keep reading for free

Create a free CaseChat account to read Bird v Palazzolo and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NTMC 54
Decision Date: 2 November 2009

CaseChat Overview and Summary

In the case of Bird v Palazzolo, the issue before the Work Health Court was the determination of the worker's normal weekly earnings (NWE) as defined under the Workers Rehabilitation and Compensation Act. The worker, Bird, had entered into concurrent contracts of service, working full-time for one employer and part-time for two others. The Court had to decide whether Bird's NWE should be calculated under section 49(1)(b) or 49(1)(d)(ii) of the Act.

The central legal issue was which subsection of the Act correctly applied to Bird's situation, considering he received both monetary and non-monetary benefits from his full-time employment. Ms. Gearin, representing the worker, argued that the inclusion of non-monetary benefits meant Bird's NWE should be calculated under section 49(1)(d)(ii), following the reasoning in Sedco Forex Australia Pty Ltd v Sjoberg. Conversely, Mr. Barr SC, representing the employer, contended that section 49(1)(b) was applicable based on the authority provided in Hastings Deering, where the Full Court held that an employee's ordinary time rate of pay could include non-cash components.

The Court concluded that the reasoning in Hastings Deering was directly applicable to Bird's case. The Court held that Bird's receipt of both monetary and non-monetary remuneration did not exclude him from the scope of section 49(1)(b). Therefore, Bird's NWE should be calculated as per section 49(1)(b), which considers his gross remuneration for the full-time employment. The Court found that Bird's NWE, as per section 49(1)(b), was as stated in paragraph 5.4 of the Agreed Facts.

The Court ordered that the matter could be revisited if any other questions arose.

Orders