CARRUTH v Bullock
[2006] WASCA 197
•29 SEPTEMBER 2006
CARRUTH & ANOR -v- BULLOCK [2006] WASCA 197
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 197 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:162/2005 | 8 SEPTEMBER 2006 | |
| Coram: | STEYTLER P WHEELER JA PULLIN JA | 29/09/06 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CALLUM G CARRUTH BELINDA JANE CARRUTH MURRAY JOHN BULLOCK |
Catchwords: | Workers' compensation – Application by employer to Conciliation and Review Directorate – Where worker spent part of year share fishing – Whether genuine dispute – Appeal to Compensation Magistrate – Construction of s 17 Workers' Compensation and Injury Management Act 1981 (WA) |
Legislation: | Workers Compensation and Injury Management Act 1981 (WA), s 5(1), s 17, s 60, Sch 1 cl 14 |
Case References: | Pots v Old Brown Dog [2002] WASCA 361 Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416 Ellis v Joseph Ellis & Co [1905] 1 KB 324 Greene v Moss & Anor (1995) 14 WAR 333 McKenzie v Fitzgibbon, unreported; Compensation Magistrate's Court (WA); CM 59/94; 15 November 1994 Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 75 Whitby v Kameruka Estate [1947] WCR 10 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CARRUTH & ANOR -v- BULLOCK [2006] WASCA 197 CORAM : STEYTLER P
- WHEELER JA
PULLIN JA
- BELINDA JANE CARRUTH
Appellants
AND
MURRAY JOHN BULLOCK
Respondent
ON APPEAL FROM:
Jurisdiction : COMPENSATION MAGISTRATE'S COURT
Coram : MR J R PACKINGTON CM
File No : CM 23 of 2005
(Page 2)
Catchwords:
Workers' compensation – Application by employer to Conciliation and Review Directorate – Where worker spent part of year share fishing – Whether genuine dispute – Appeal to Compensation Magistrate – Construction of s 17 Workers' Compensation and Injury Management Act 1981 (WA)
Legislation:
Workers Compensation and Injury Management Act 1981 (WA), s 5(1), s 17, s 60, Sch 1 cl 14
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellants : Mr M L Greenland
Respondent : Mr G T Stubbs
Solicitors:
Appellants : Greenland Brooksby
Respondent : Dwyer Durack
(Page 3)
Case(s) referred to in judgment(s):
Pots v Old Brown Dog [2002] WASCA 361
Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416
Case(s) also cited:
Ellis v Joseph Ellis & Co [1905] 1 KB 324
Greene v Moss & Anor (1995) 14 WAR 333
McKenzie v Fitzgibbon, unreported; Compensation Magistrate's Court (WA); CM 59/94; 15 November 1994
Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 75
Whitby v Kameruka Estate [1947] WCR 10
(Page 4)
1 STEYTLER P: I agree with Pullin JA.
2 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Pullin JA. I agree with those reasons and have nothing to add.
3 PULLIN JA: This is an appeal against the decision of Compensation Magistrate Packington dismissing the appellants' appeal from the decision of the Review Officer, who dismissed the appellants' application made under s 60 of the Act for a reduction in the weekly compensation payments payable to the respondent.
Facts
4 On 21 July 2003, the respondent suffered an injury in the course of his employment with the appellants. At the time of the injury, the respondent had been engaged by the appellants for three days, being 19, 20 and 21 July 2003, to muster goats for the purposes of the appellants' pastoral business. The respondent claimed to be totally incapacitated by the injury.
5 The respondent's claim for compensation was accepted, and the appellants commenced weekly payments of compensation to the respondent on the basis he was ordinarily an employee for the whole year (albeit with other employers as well). Compensation is payable under the Act by reason of s 18 which reads:
"If a disability of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1."
6 Schedule 1 cl 7(1) reads:
"… when total incapacity for work results from the disability a weekly payment during the incapacity equal to the weekly earnings of the worker are calculated and varied in accordance with this schedule."
7 Clause 14 is a provision which, if it applies, varies the entitlement to this weekly payment. It is set out below.
8 Some time after payments had commenced, the appellants became aware that the respondent's usual pattern of work included substantial periods each year working on fishing boats. As a result, on 20 October
(Page 5)
- 2004, the appellants applied to the Conciliation and Review Directorate seeking a reduction in weekly compensation payments pursuant to s 60 of the Workers' Compensation and Injury Management Act 1981 (WA) ("the Act").
Decision of the Review Officer
9 The issue for determination by the Review Officer at the Conciliation and Review Directorate was whether the appellants could establish that they had a lawful basis on which they could rely to show they genuinely disputed their liability to pay the present weekly payments of compensation.
10 Clause 14, Sch 1 of the Act provided:
"14. Casual or seasonal worker
In the case of a casual or a seasonal or other worker who is ordinarily employed for only part of the year, 'weekly earnings' means that fraction of the worker's weekly earnings calculated and varied in accordance with this Schedule as represents the same ratio that the number of weeks that he normally works each year bears to 52."
11 The evidence before the Review Officer was that the respondent spent parts of the year working for two fishing employers, Duthie Fishing and Baywide Holdings Pty Ltd (trading as Catalano Seafoods), and that he undertook some mechanical work on his own behalf.
12 Section 17 provides as follows:
"17. Crew of fishing vessel
This Act does not apply in respect of disabilities occurring to such members of the crew of a fishing vessel as contribute to the cost of working that vessel, and are remunerated by shares in the profits or the gross earnings of the working of that vessel."
13 The appellants contended in their application that as the respondent was engaged for much of year in a share fishing arrangement and was remunerated by shares in the profits or gross earnings of the working of the vessel, he was not a "worker" within the meaning of the Act during that time, by virtue of s 17. Therefore, it was argued that the weeks that
(Page 6)
- the respondent spent share fishing should be disregarded in the calculation of weekly payments according to the formula set out in cl 14.
14 The argument raised by ground 1 of this appeal was advanced unsuccessfully before the Compensation Magistrate. Ground 1 reads:
"1. The Compensation Magistrate erred in law in his Statement at paragraph 15 of his Reasons that the effect of Section 17 is not that a Share Fisherman is not a 'worker', but rather that a Share Fisherman, although a 'worker', has no entitlement to compensation under the Act if he or she suffers a disability.
His Honour should have interpreted Section 17 to mean that, where it applies, the Sharefisherman is not a worker for the purposes of the Act."
"14. The appellant made its s60 application on the basis that the weeks that the respondent spent fishing could not be included in the multiplier referred to above. As formulated by the appellant at review, its argument was that, during those weeks, the respondent could not be described as a 'worker' within the meaning of the Act, because of the provisions of s17, which provides that:
'This Act does not apply in respect of disabilities occurring to such members of the crew of a fishing vessel as contribute to the cost of working that vessel, and are remunerated by shares in the profits or the gross earnings of the working of that vessel.'
15. It is not in dispute that the respondent's arrangements with operators of fishing vessels were in the nature of share-fishing. The effect of s17, however, is not that a person engaged on such a basis is not a 'worker' within the meaning of the Act, but rather that a person so engaged, although a 'worker', has no entitlement to compensation under the Act if he or she suffers a disability (which is itself in any event, by definition, something that happens to a 'worker' see s18 of the Act)."
(Page 7)
Appellants' submissions concerning ground 1
16 The appellants say that the history of s 17 reveals that its purpose was to exclude share fishermen from the coverage of the Act, because it was perceived that they were self-employed and not workers. The appellants referred to predecessors to s 17 including s 7(2) of the English Workers' Compensation Act 1906 and s 19(4) of the Workers' Compensation Act 1912 (WA). Pots v Old Brown Dog [2002] WASCA 361 refers to the difference in wording between s 17 and s 19(4) of the previous Western Australian legislation, but that case says nothing about the policy behind the legislation. The reason prompting the passing of the differently worded English provision is said by the appellants to appear from pages of "Hansard" reporting proceedings in the House of Commons in December 1906, page 856, where an attempt was made to omit the provision from the Bill. According to what was said by one member, the fishermen themselves had asked to be excluded from the operation of the workers' compensation legislation. The court was not referred to any similar material from the Western Australian Parliament. Even if there had been some relevant extrinsic material, it may not be used to depart from the ordinary meaning of the text unless the meaning of the provision is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable: Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416 at 420. In my view neither of these conditions is satisfied in the present case.
17 The meaning of s 17 is plain. As it says, the Act does not apply in respect of "disabilities" occurring to "such members of the crew of a fishing vessel" as described by the conditions set out in s 17. Section 17 does not say, nor have the effect, that a person described in s 17 is not a worker. Ground 1 must be dismissed.
Ground 2
18 Ground 2 of the appellants' appeal reads:
"His Honour failed to consider the Appellant's submission that, regardless of Section 17, the Respondent was, while share fishing, self-employed, and therefore not a worker for the purposes of the Act.
His Honour's omission was an error of law. He should have concluded that there was a genuine dispute about whether the Respondent was self employed when share fishing."
(Page 8)
19 This ground must be dismissed. No such ground was raised for determination in the notice of appeal against the Review Officer's decision. Counsel for the appellants said that the point was discussed in argument before the Compensation Magistrate but that is no reason to permit the ground to be raised formally for the first time in this Court. Enough has gone wrong with the case (as explained by the Compensation Magistrate) without attempting to deal with an argument that was put, but not in support of any ground of appeal.
20 As the Compensation Magistrate said, and as the Review Officer said, other issues (including this issue) can be raised in a new s 60 application.
21 I would dismiss the appeal.
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