Hector v Thiess Pty Limited (No 2)

[2020] NSWDC 455

District Court

New South Wales

Medium Neutral Citation:	Hector v Thiess Pty Limited and others (No 2) [2020] NSWDC 455
Hearing dates:	6-7 May 2020, 27 May 2020.
Date of orders:	27 May 2020
Decision date:	27 May 2020
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	See [13]
Catchwords:	COAL MINERS’ WORKERS COMPENSATION
Legislation Cited:	Whether plaintiff’s son (L), a student at Newcastle University was (a) a full-time student and (b) mainly dependant on the plaintiff until L’s 21st birthday
Cases Cited:	Allan Mills v Coalcliff Collieries Pty Ltd and Others, NSWDC, RJ195/04, 17 August 2004
Category:	Consequential orders (other than Costs)
Parties:	(Plaintiff) Andrew Clifton Hector (1st Defendant) Thiess Pty Ltd (2nd Defendant) Liddell Coal Preparation Plant Pty Limited (3rd Defendant) Liddell Coal Operations Pty Limited
Representation:	Counsel: (Plaintiff) P. O’Rourke (Defendant) S. McMahon Solicitors: (Plaintiff) Whitelaw McDonald (Defendant) Sparke Helmore Lawyers
File Number(s):	RJ00088/18
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: On 7 May 2020, I gave a decision in this case. The formal award was probably entered on 8 May 2020 when I signed short minutes of order that had been prepared by counsel. In the decision of 7 May 2020, I gave liberty to the plaintiff to apply by filing any necessary affidavit or affidavits to establish whether his son, Liam, was wholly or mainly dependent upon him support at all material times until 16 September 2016. On 16 September 16, Liam turned 21. According to the terms of the statute, he had to be under 21 years to be totally or mainly dependent. Accordingly, the putative dependency should cease on 15 September 2019.

2. The issue currently before me is whether Liam was materially dependent upon the plaintiff for support from the time that the weekly payments of compensation ceased to be $1,600 per week and was replaced by the statutory rate which, at the time of the decision that I made, on 7 May 2020, was at the rate for a worker with a dependent wife and one dependent child. The issue is whether Liam was totally or mainly dependent upon his father for support between the cessation of the weekly payments at the rate of $1,600 per week until 15 September 2019.

3. Liam obtained the Higher School Certificate in 2016. At the commencement of 2017, he enrolled at the University of Newcastle to study the degree of Bachelor of Commerce. His academic transcript is annexed to his affidavit of 21 May 2020 which is exhibit EE. During 2017, he studied four subjects in each of the two semesters. In 2018, he studied three subjects in each of the two semesters. In 2019, he studied four subjects in each semester.

4. A submission has been made that in 2018 Liam was not a fulltime student, as required by the terms of the statute. However, whether he was a fulltime student or not, would depend upon the stance taken by the University, probably in its statutes and bylaws. What they establish has not been proved. Liam has not been required for cross-examination, nor has Liam's father, the plaintiff, been required for cross-examination and, in the plaintiff's affidavit of 8 May 2020, he deposes to Liam being a fulltime student. Furthermore, the earning pattern of Liam, in casual employment, is consistent with his being a fulltime student.

5. The question then becomes, was he totally or mainly dependent. There is no suggestion he was totally dependent. The question is, whether he was mainly dependent. The authorities make it clear that being mainly dependent, Liam must have relied upon his father for, at least, 51% of his support in life, that is, whatever the total cost of his living might have been, his father was providing at least half.

6. In the plaintiff's affidavit, is this:

"1. My son, Liam has lived with me ever since his birth.

2. Liam has lived and continues to live in a bedroom of my home.

3. I pay all household bills in respect of the maintenance of the home and the usual outgoings, including electricity, water rates, etc.

4. I also pay for all the food and groceries that come into my house.

5. I do not take board from my son, Liam.

6. I provide to him, a study and desk, phone and internet and computer for him to undertake his studies at Newcastle University.

7. I also pay for my son, Liam's mobile phone.

8. At all relevant times, I have paid for the registration, comprehensive insurance and third party insurance for the motor car Liam drives, in order that he can travel to university."

7. That is mirrored in Liam's affidavit which contains this matter:

"13. I live at home with my parents at Buttaba.

14. I do not pay or contribute to household expenses, food or groceries that I consume at my home. I do not pay board. These expenses are paid for me by my father, Andrew Clifton Hector. My father also pays for my telephone, internet, computer and study facilities at home."

8. It is clear, from Liam's affidavit, that he has been working part time to earn, what might be described as, "spending money". For the period from 18 September 2017, he undertook part time casual work, firstly at Domino’s Pizza, as a delivery boy until week ending 14 October 2018. He later obtained employment at the Wangi Hotel in November 2018 and continued in that employment until January 2020. During the period from 17 September 2017 to 30 June 2018, he earned $236.76 net per week. During the period from 1 July 2018 to 30 June 2018, he earned an average of $337.95 net per week. For the period from 1 July 2019 until, relevantly, 15 September 2019, he earned an average of $292.31 per week.

9. His affidavit then continues thus:

"11. I utilise these earnings to pay for the petrol for the car that I drive to university, food at university, parking expenses at university and extremely limited social activities.

12. I have very little money left. After I have paid for these expenses, I buy some of my academic study/consumables, including paper and textbooks."

Of course, what is meant by "very little money", is a matter of opinion and would vary, depending upon the amount of a person's income and what was left. What might be very little for a university student, would be completely different to what might be, "very little" for a tycoon.

10. The cost of board and lodging, the provision of electrical connectivity and the cost of transportation is quite heavy. Mr McMahon, for the defendant, referred me to the decision of Ashford DCJ made at Wollongong on 16 August 2004 in Allan Mills v Coalcliff Collieries Pty Ltd and Others (Unreported, RJ195/04). In that case her Honour found that the plaintiff's wife was not totally or mainly dependent upon him. Her Honour pointed this out:

"For the year 99/00, the plaintiff earned $345 per week and his wife, $273 per week. In 2000/2001, the plaintiff earned $355 and his wife earned $334. In 2001/2002, he earned $373 and his wife earned $313."

A little later, her Honour continued thus:

"As can be seen, the differential in earnings varies. The first period referred to is $720 per week, the second, $21 per week, the third, $60 per week and the fourth period, $6.08 per week."

The fourth period to which her Honour referred, was the financial year 2002/2003 when the claim closed, do not represent the total difference during the whole financial year, when, in fact, the wife was earning, on average, more than the plaintiff.

11. Here, it must be borne in mind that, whilst he was working, and during the period that the weekly payments are payable to the plaintiff, he would have been earning, but for injury, $4,100 per week and, I have found that his ability to earn injured, was still $2,500 per week.

12. Minds may vary, but the difference between what the plaintiff was earning and what Liam was earning was particularly great and, furthermore, the services which were being provided by the plaintiff to Liam, namely board and lodging, his telephone, internet and computer access, and his motor vehicle, were all very valuable, and in my view, were far exceeded the amounts which Liam was actually earning in his part time employment when he was a fulltime student.

13. I have no hesitation in finding that at all material times, that is, from the date that the weekly payments commences at the statutory rate until 15 September 2019, Liam Hector was mainly dependent upon his father for support. The award of weekly payments is to be varied during that period by an increase in the amount to represent a further dependent child during that period.

14. The costs order continues. The defendant can pay the plaintiff's costs of today.

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Decision last updated: 18 August 2020