Hastings Deering (Australia) Ltd v Smith - [2004] NTSC 2

[Back to Main List] [Back to NTSC 2004 List] Hastings Deering (Australia) Ltd v Smith [2004] NTSC 2

PARTIES: HASTINGS DEERING (AUSTRALIA) LTD

SMITH, David John

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO: LA 17 of 2003 (20118381)

DELIVERED: 22 January 2004

HEARING DATES: 22 December 2003

JUDGMENT OF: THOMAS J

CATCHWORDS:
WORKERS COMPENSATION - EMPLOYER COMPULSORY SUPERANNUATION CONTRIBUTIONS - whether part of normal weekly earings.
Work Health Act 1992 (NT) s 49(d)(ii)
Murwangi Community Aboriginal Corporation v Carroll [2002] NTCA 9, Fox v Palumpa Station Pty Ltd (1999) NTMC 024, Normandy NFM Ltd v Turner [2003] NTSC 112, Re Manufacturing Grocers' Employees Federation of Australia & Anor; Ex Parte The Australian Chamber of Manufacturers & Anor (1986) 160 CLR 341, A Condon v G James Extrusion Company Dec 313/97 Print N9963 at 378, applied.
Bortolazzo and Saffron v Comcare Australia (1997) 75 FCR 385, Reynolds v Southcorp Wines Pty Ltd & Anor [2002] FCA 712, considered.
REPRESENTATION:

Counsel:
Appellant: D Trim QC and M Grant
Respondent: S Southwood QC
Solicitors:
Appellant: Hunt & Hunt
Respondent: Ward Keller

Judgment category classification: C
Judgment ID Number: tho200401
Number of pages: 11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Hastings Deering (Australia) Ltd v Smith [2004] NTSC 2
No. LA 17 of 2003 (20118381)

IN THE MATTER of an appeal under the Work Health Act

BETWEEN:

HASTINGS DEERING (AUSTRALIA) LTD

Appellant

AND:

DAVID JOHN SMITH
Respondent

CORAM: THOMAS J

REASONS FOR JUDGMENT

(Delivered 22 January 2004)

[1] This is an appeal from a decision of the Work Health Court delivered on 19 June 2003. In her reasons for decision, the learned stipendiary magistrate made the following findings:
"40. I have come to the conclusion that the arguments currently available to me militate in favour of allowing compensation for the employer funded contribution component to be included in normal weekly earnings. In coming to this conclusion, I fully appreciate that the contribution originally under s 20 Superannuation Guarantee (Administration) Act was 3% and by 2002-03 had increased to 9%. In making relevant calculations, the parties will need to ensure that the correct and relevant percentage is applied, and even then, must not be calculated to double up with any part of the contribution this Employer currently continues to make on behalf of the Worker.
41. I have come to the view that the Worker may well be entitled under either s 49(1)(a) or (d)(ii) Work Health Act, that is, the superannuation contributions may be regarded on one view as remuneration simpliciter. Alternatively, it may be more readily grounded in s 49 (1)(d)(ii). Initially I thought there may be a strong point in the Employer's argument that all workers could claim superannuation under this section but my researches since argument before me reveal at least one category of exempt employees being persons who work predominantly in a private or…

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 Hastings Deering (Australia) Ltd v Smith 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: [2004] NTSC 2
Decision Date: 22/01/2004

CaseChat Overview and Summary

The appeal in Hastings Deering (Australia) Ltd v Smith [2004] NTSC 2 was brought by the appellant, Hastings Deering (Australia) Ltd, against the respondent, David John Smith, regarding the calculation of the respondent's normal weekly earnings for the purposes of the Work Health Act. The appeal contested the Work Health Court's decision that employer-funded superannuation contributions should be included in the calculation of the respondent's normal weekly earnings. The legal issues centered on whether the superannuation contributions made by the employer were part of the respondent's "normal weekly earnings" under the Work Health Act and whether they should be considered as part of his remuneration.

The Supreme Court of the Northern Territory, exercising its Territory jurisdiction, reviewed the arguments presented by both parties. Counsel for the appellant, D Trim QC, argued that the Work Health Act should not be interpreted to include superannuation contributions in the respondent's normal weekly earnings, as it would result in the respondent being better off, contrary to the Act's policy. The respondent's counsel, S Southwood QC, contended that remuneration is a broader concept that includes superannuation contributions, as established in previous cases. The court considered various authorities and concluded that superannuation contributions, being part of the total sum for which the worker is entitled as a reward for services rendered, should indeed be included in the calculation of normal weekly earnings. The court dismissed the appeal, upholding the Work Health Court's decision.

Orders