HWE Contracting Pty Ltd v Young

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HWE Contracting Pty Ltd v Young and

Newmont Australia Limited v Kastelein [2007] NTSC 42

PARTIES:  HWE CONTRACTING PTY LTD
v
YOUNG, Damian
and
NEWMONT AUSTRALIA LIMITED
v
KASTELEIN, Robert
TITLE OF COURT:  FULL COURT OF THE SUPREME
COURT OF THE NORTHERN
TERRITORY
JURISDICTION:  APPEAL FROM THE WORK HEALTH
COURT EXERCISING TERRITORY
JURISDICTION
FILE NOS:  LA 20 of 2006 (20428221)
LA 21 of 2006 (20517529)
DELIVERED:  27 August 2007
HEARING DATES:  15-16 August 2007
JUDGMENT OF:  MARTIN (BR) CJ, ANGEL and
RILEY JJ
CATCHWORDS: 

WORKERS COMPENSATION – Appeal – ‘normal weekly earnings’ – worker’s remuneration – s 49 Work Health Act (NT) 1986 – whether value

of residential accommodation provided by employer is included in worker’s
remuneration – whether residential accommodation should have been

properly excluded from worker’s remuneration – appeal dismissed.

WORKERS COMPENSATION – Appeal – whether a benefit was an

‘allowance’ for the purposes of s 49 Work Health Act (NT) 1986 – whether

identified non-cash benefits included in remuneration – rent, board and
electricity not an allowance but remuneration – appeal dismissed.

WORKERS COMPENSATION – Cross-appeal – expert evidence – s 110A Work Health Act – court may inform itself – valuation evidence by experts in a general field – too narrowly defined – error in law does not vitiate

decision – appeal dismissed.

WORKERS COMPENSATION – Cross-appeal – whether failure to give
reasons for decision – obliged to reach conclusions on information available

– appeal dismissed.

Murwangi Community Aboriginal Corporation v Carroll (2002) 171
FLR 116, followed
Normandy NFM Limited v Turner (2003) 180 FLR 212, approved
Alice Springs Town Council v Mpweteyerre Aboriginal Corporation (1997)
115 NTR 25 at 35, approved
Fox v Palumpa Station Pty Ltd [1999] NTMC 024, referred
Dothie & Ors v Robert McAndrew & Co [1908] 1 KB 803, referred
Skailes v Blue Anchor Line Ltd [1911] 1 KB 360 at 363-364, referred
Dawson v Bankers and Traders Insurance Co Ltd (1957) VR 491 at
497, referred
Rofin Australia Pty Ltd v Newton (1997) 78 IR 78 at 81, referred
AAT Kings Tours Pty Ltd v Hughes (1994) 4 NTLR 185 at 193-194, referred
Mutual Acceptance Ltd v Federal Commissioner of Taxation (1944) 69 CLR
389 at 396, considered

REPRESENTATION:

Counsel:

Appellant:  P Barr QC
 Respondent:  S Gearin

Solicitors:

Appellant:  Hunt & Hunt Lawyers
Respondent:  Withnalls Territory Lawyers

Judgment category classification: B

Judgment ID Number:  ril0717
Number of pages:  27

IN THE FULL COURT OF THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA

AT DARWIN

HWE Contracting Pty Ltd v Young and

Newmont Australia Limited v Kastelein [2007] NTSC 42

Nos LA 20 of 2006 (20428221) and LA 21 of 2006 (20517529)

IN THE MATTER OF the Work Health Act

AND IN THE MATTER OF an appeal against decisions handed down in the Work Health Court at Darwin

BETWEEN:

HWE CONTRACTING PTY LTD

Appellant

AND:

YOUNG, Damian

Respondent

NEWMONT AUSTRALIA LIMITED

Appellant

AND:

KASTELEIN, Robert

Respondent

CORAM:  MARTIN (BR) CJ, ANGEL and RILEY JJ

REASONS FOR…

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Details
Case
[2007] NTSC 42
Decision Date

CaseChat Overview and Summary

The case of HWE Contracting Pty Ltd v Young involved an appeal against a decision concerning workers' compensation under the Work Health Act (NT) 1986. The dispute centered around the interpretation of "normal weekly earnings" and whether certain benefits provided by the employer should be included in the worker's remuneration for compensation purposes. Specifically, the appeal questioned whether the value of residential accommodation provided by the employer should be included in the worker’s remuneration and if it should have been excluded as remuneration. Additionally, the case examined whether certain non-cash benefits, such as rent, board, and electricity, should be considered as allowances rather than part of remuneration.

The court was required to decide whether the evidence provided by two valuers qualified as "expert evidence" under section 110A of the Work Health Act, which allows the court to inform itself on any matter in the manner it deems fit. Furthermore, the court needed to determine whether the failure to provide reasons for the decision constituted a significant error and whether the court was obliged to reach conclusions based on the information available. The court also had to examine whether the exclusion of certain benefits from the worker’s remuneration was justified.

The court dismissed the appeal, concluding that the evidence provided by the two valuers, though not strictly confined to the valuation of remote area accommodation, still constituted expert evidence that could assist the court. The court took a broader view of the field of expertise, recognizing that experts could provide valuable insights into the process of valuation and the challenges associated with it. The court held that the error in narrowly defining the field of expertise did not vitiate the decision and that the court was not obliged to provide detailed reasons for its valuation of the residential accommodation. The court ultimately found that the decision reached by the magistrate was not flawed to the extent that it required the appeal to be allowed.

The final order of the court was to dismiss the appeal, affirming the decision of the magistrate.

Orders

Orders of the court

1. Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In the matter of Damian Young, the respondent worker has lodged a cross- appeal against the decision of Mr Trigg SM to the effect that the evidence of two valuers was not “expert evidence”. Further he contends that the reasoning process of his Honour in providing a value to the provision of meals and accommodation for compensation purposes was not revealed. Expert evidence The relevant evidence was from Mr Martin Gore and Mr Mark Harris. Each witness had qualifications in the valuation of property and had prepared and provided a valuation report. There was, in the material provided by Mr Gore, an assessment of the difficulties of the task being undertaken, a discussion of relevant methods of valuation and identification of the problems with each approach to valuation in the particular circumstances of the case. His Honour considered the evidence of the two valuers and then observed: The learned magistrate then went on to consider the information that had been provided to him by each of the witnesses. He said (par183): “I do not accept that a field of expertise exists in the valuing of mine accommodation, such that expert evidence can be given on it. Further, whilst I accept both valuers as experts in their field, I do not find that they are able to give expert evidence on this topic, due to the relatively new nature of it. I will make my own assessment. In doing so I have taken on board what the two valuers have said in evidence more as a submission, rather than as expert evidence.” Mr Trigg SM then had regard to the evidence pursuant to the provisions of s 110A of the Work Health Act which provides that proceedings within the Work Health Court shall be conducted with as little formality and technicality and with as much expedition as the requirements of the Act and a proper consideration of the matter permits. Section 110A(3) of the Act provides that the Court is not bound by any rules of evidence and may inform itself on any matter in such manner as it thinks fit. His Honour considered the information provided by the two witnesses and discussed it in detail. In approaching the matter in this way his Honour took a narrow view of what may be regarded as the relevant field of expertise. He regarded the field to be limited to the valuing of the non-cash benefits the employee Expert evidence need not be confined in this way. Significant assistance can be provided to a court or tribunal by the provision of expert evidence of a more general nature which then may be considered in light of the circumstances of the particular matter to hand. Experts with relevant training and/or experience may assist in identifying appropriate information upon which to rely and appropriate approaches to that information. For example, in the present case the Work Health Court may be assisted by the information provided by the acknowledged experts as to the available approaches to remote area valuations, the process of valuation of accommodation generally and the nature of information which may be of assistance in the particular circumstances of this case. The Court may be alerted to the dangers or shortcomings of different approaches to valuing this accommodation in these circumstances and assisted by the view of the experts as to how those challenges may be met. The information obtained from the experts can be harnessed by the court and used to guide it in reaching a conclusion as to the best approach to the problem at hand. Such evidence is conducive to more reliable decision making – see generally the discussion in Ligertwood, Australian Evidence, 4 th ed, Butterworths at 484 to 487.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.