Brejwo v Public Trustee - [2002] NSWCA 115

CITATION: BREJWO v PUBLIC TRUSTEE [2002] NSWCA 115

FILE NUMBER(S): CA 40349/01

HEARING DATE(S): 11 April 2002

JUDGMENT DATE:
2 May 2002

PARTIES :

ANN AGATHA BREJWO
v
PUBLIC TRUSTEE OF NEW SOUTH WALES
As Trustee for Mary Brejwo

JUDGMENT OF: Handley JA at 1; Stein JA at 23; Heydon JA at 24

LOWER COURT JURISDICTION : Compensation Court

LOWER COURT
FILE NUMBER(S) : CC 14250/96

LOWER COURT
JUDICIAL OFFICER : Hughes CCJ

COUNSEL: Appellant - B Rayment QC/T Edwards
Respondent - J Poulos QC/E Wood/J Kirk

SOLICITORS: Appellant - Burgess Foat Newcastle
Respondent - Sparke Helmore Newcastle

CATCHWORDS: WORKERS COMPENSATION ACT - worker - deemed worker - CONTRACT - commercial relationship - familial situation - Court order - EQUITY - direction by Court to Public Trustee for payments pursuant to Damages (Infants and Persons of Unsound Mind) Act - performance of conditions - equitable personal obligation

LEGISLATION CITED: Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998

CASES CITED:
Zuijs v Wirth Bros Pty Limited (1955) 93 CLR 561
Griffiths v Kerkemeyer (1977) 139 CLR 161
Kars v Kars (1996) 187 CLR 354
Port Jackson Stevedoring Pty Limited v Salmond & Spraggon (Aust) Pty Limited (1978) 139 CLR 231
The Eurymedon [1975] AC 1
Gill v Gill (1921) 21 SR (NSW) 400
Muschinski v Dodds (1985) 160 CLR 583

DECISION: Appeal dismissed with costs

40349/01
CC 14250/96

HANDLEY JA
STEIN JA
HEYDON JA

2 May 2002

ANN AGATHA BREJWO v PUBLIC TRUSTEE OF NEW SOUTH WALES

AS TRUSTEE FOR MARY BREJWO

WORKERS COMPENSATION ACT – worker – deemed worker

CONTRACT – commercial relationship – familial situation – Court order

EQUITY – direction by Court to Public Trustee for payments pursuant to Damages (Infants and Persons of Unsound Mind) Act – performance of conditions – equitable personal obligation

The appellant made a compensation claim following the death of her husband. At the time of his death the husband was the full time carer of his severely retarded daughter, Mary Brejwo. The daughter had received a settlement payment of $1,500,000 from a claim against a negligent driver after a motor vehicle accident. The money was held on trust by the Public Trustee subject to an order that the Public Trustee pay not less than $150 per week to the husband on condition that he reside with his daughter and materially assist in her daily care and management.

Under cl 2 of Schedule 1 of the Workers Compensation Act 1987 (NSW) a person who contracts to perform work exceeding $10 in value (not being work incidental to a trade or business carried on by the contractor in his own name) who neither sublets the contract or employs a worker, is deemed to be a worker employed by the other party to the contract. The appellant contended that the husband had made a contract with the Public Trustee to perform work exceeding $10 in value and was a deemed worker. She also relied upon Port Jackson Stevedoring Pty Limited v…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Brejwo v Public Trustee

Details

AGLC: Brejwo v Public Trustee [2002] NSWCA 115
Case: [2002] NSWCA 115
Decision Date: 2 May 2002

CaseChat Overview and Summary

The appeal concerned the interpretation of a court order made under the *Damages (Infants and Persons of Unsound Mind) Act* directing the Public Trustee to make payments from a settlement sum to the respondent, Ms. Brejwo, who was described as a "deemed worker" under the *Workers Compensation Act*. The appellant, the Public Trustee, sought to characterise the relationship between Ms. Brejwo and the deceased, Mr. Brejwo, as a commercial one, thereby arguing that the payments were not for her maintenance and support. Ms. Brejwo contended that the payments were intended to provide for her maintenance and support, reflecting an equitable personal obligation arising from the court order.

The central legal issue before the Court of Appeal was whether the payments directed by the court order were to be characterised as a personal equitable obligation owed by the deceased to Ms. Brejwo, or whether they were a debt arising from a commercial relationship. This distinction was crucial for determining whether the Public Trustee was bound to continue making the payments from the settlement fund. The court had to consider the nature of the court order itself and the circumstances under which it was made, particularly in light of the familial context and Ms. Brejwo's status as a "deemed worker".

The Court of Appeal reasoned that the court order, made in equity, imposed a personal obligation on the deceased to ensure payments were made to Ms. Brejwo for her maintenance and support. This obligation was not merely a commercial debt but an equitable one, reflecting the court's concern for Ms. Brejwo's welfare. The court found that the Public Trustee, as the administrator of the settlement fund, was bound by this equitable obligation. The familial situation and the "deemed worker" status were significant factors in understanding the intent and purpose of the original court order.

The appeal was dismissed, and the Public Trustee was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	BREJWO v PUBLIC TRUSTEE [2002] NSWCA 115
FILE NUMBER(S):	CA 40349/01
HEARING DATE(S):	11 April 2002
JUDGMENT DATE:	2 May 2002
PARTIES :	ANN AGATHA BREJWO v PUBLIC TRUSTEE OF NEW SOUTH WALES As Trustee for Mary Brejwo
JUDGMENT OF:	Handley JA at 1; Stein JA at 23; Heydon JA at 24

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :	CC 14250/96
LOWER COURT JUDICIAL OFFICER :	Hughes CCJ

COUNSEL:	Appellant - B Rayment QC/T Edwards Respondent - J Poulos QC/E Wood/J Kirk
SOLICITORS:	Appellant - Burgess Foat Newcastle Respondent - Sparke Helmore Newcastle
CATCHWORDS:	WORKERS COMPENSATION ACT - worker - deemed worker - CONTRACT - commercial relationship - familial situation - Court order - EQUITY - direction by Court to Public Trustee for payments pursuant to Damages (Infants and Persons of Unsound Mind) Act - performance of conditions - equitable personal obligation
LEGISLATION CITED:	Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998
CASES CITED:	Zuijs v Wirth Bros Pty Limited (1955) 93 CLR 561 Griffiths v Kerkemeyer (1977) 139 CLR 161 Kars v Kars (1996) 187 CLR 354 Port Jackson Stevedoring Pty Limited v Salmond & Spraggon (Aust) Pty Limited (1978) 139 CLR 231 The Eurymedon [1975] AC 1 Gill v Gill (1921) 21 SR (NSW) 400 Muschinski v Dodds (1985) 160 CLR 583
DECISION:	Appeal dismissed with costs