Illawarra Coke Company Pty Limited v Daly
[2006] NSWWCCPD 125
•20 June 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Illawarra Coke Company Pty Limited v Daly [2006] NSWWCCPD 125
APPELLANT: Illawarra Coke Company Pty Limited
RESPONDENT: Daniel Anthony Daly
INSURER:QBE Workers Compensation ( NSW) Limited
FILE NUMBER: WCC7258-05
DATE OF ARBITRATOR’S DECISION: 5 September 2005
DATE OF APPEAL DECISION: 20 June 2006
SUBJECT MATTER OF DECISION: Adequacy of evidence for a claim for dependant children.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: QBE In-House Legal
Respondent: Lough Wells Duncan
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 5 September 2005 is confirmed.
2. The Appellant Employer is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
1.Daniel Anthony Daly (‘The Respondent Worker’) was employed by Illawarra Coke Company Pty Limited (‘the Appellant Employer’), as a boilermaker. He suffered a number of injuries during the course of his employment, principally on 8 October 1987 when he was involved in a motor vehicle accident whilst on a journey home from work. He suffered significant injuries to his neck and arms.
2.In proceedings No. 21092 of 1995 in the former Compensation Court, by an award dated 24 June 1999 by Burke J (as he then was) the Respondent Worker was awarded weekly compensation on the basis of total incapacity from October 1995 to date and continuing, pursuant to section 37 of the Workers Compensation Act 1987 (‘the 1987 Act’) together with compensation pursuant to sections 66 and 67 of the same Act.
3.In his application before the Court, the Respondent Worker had claimed three children as dependent. In his judgment, Burke J determined that “the Applicant’s three children are not totally or mainly dependent for support on him as [sic] any relevant time.”
4.On 18 May 2005, the Respondent Worker filed an ‘Application to Resolve a Dispute’ in the Commission seeking an increase in weekly benefits on the basis that he had, since 24 June 1999, three dependant children. It was noted in that Application that the Appellant Employer had commenced making weekly payments for one child who had resided with the Respondent Worker since 11 February 2005.
5.On 8 June 2005, the Appellant Employer filed a Reply disputing that the three children were “totally or mainly dependent” on the Respondent Worker within the meaning of section 37(4) of the 1987 Act.
6.The matter was listed for conciliation/arbitration hearing on 15 August 2005. On 5 September 2005, a ‘Certificate of Determination’ with accompanying ‘Statement of Reasons’ was issued. The determination of the Arbitrator was as follows:
“1.Payments by the Respondent of weekly compensation to the Applicant are to be made at the rate for a worker plus three dependant children from 11 November 2002 to date pursuant to s.37 of the Workers Compensation Act 1987; and thereafter to continue in accordance with the provisions of the Act.
2.That the Respondent pay the Applicant’s costs as agreed or assessed.”
7.On 4 October 2005, the Appellant Employer filed an ‘Appeal Against Decision of Arbitrator’. Briefly, the Appellant Employer submits that the Arbitrator made errors of fact and law in determining that the three children were “wholly or mainly” dependent upon the Respondent Worker.
8.On 12 October 2005, the Respondent Worker filed a ‘Notice of Opposition’ to the Appeal. The Respondent Worker submits that “… the facts as found by the Arbitrator and the law as properly applied by the Arbitrator fully support the decision, and the Appellant’s appeal should be dismissed.”
LEAVE TO APPEAL
9.The appeal was filed within the time limits prescribed by section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The amount at issue on appeal satisfies the criteria set out in section 352(2) of the 1998 Act.
10.Leave to appeal is granted.
ON THE PAPERS REVIEW
11.Both parties submit that the appeal is not suitable for a determination ‘on the papers’. The Appellant Employer submits that “… in this matter there are a number of reasons why there should be an oral hearing.” No particular reasons are specified. The Appellant Employer further submits that: “[a]n oral hearing will enable both parties to deal with the other’s competing submissions in a manner which is more satisfactory than exchanging written submissions in reply possibly on more than one occasion” and that: “… Natural justice and procedural fairness dictate that in substantial matters an oral hearing should take place.”
12.The Respondent Worker merely submits that “… [t]here ought to be an oral hearing … for the reasons previously set out by the Appellant.”
13.The claim relates solely to the issue of dependency. The Arbitrator noted: “[b]oth parties made oral submissions in the Application and Reply”. Copies of a number of authorities were provided to the Arbitrator and contained in his file. Both parties have made extensive submissions on appeal and again refer to a number of authorities.
14.Ms Hennen, the Respondent Worker’s former wife, gave oral evidence. Whilst the Arbitrator noted: “[u]nfortunately, due to a technical problem, no recording of this evidence, or of the oral submissions was possible. The parties were advised of this and agreed to proceed …”, neither party takes issue with the absence of a transcript. Both parties have agreed that the Arbitrator’s summary of the oral evidence in paragraph 6 of his ‘Statement of Reasons’ is “a fair summary” of the evidence, although the Respondent Worker has added a few further comments in his ‘Notice of Opposition’.
15.Section 354(6) of the 1998 Act provides that:
“If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
16.Having carefully read all the material before the Arbitrator, the submissions and the authorities to which the parties have referred, I am satisfied that I have sufficient information to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
THE ISSUES IN DISPUTE
17.The only issue in dispute is whether the Arbitrator’s finding that the Respondent Worker had three dependent children from 11 November 2002 was supported by the evidence and consistent with a number of authorities to which the parties referred.
18.The circumstances in the present case were such that the parents had separated and effectively maintained two households. The question was whether the children could be regarded as totally or mainly dependant upon both parents.
THE GROUNDS OF APPEAL
19.The Appellant Employer lists five grounds of appeal as follows:
“1.The Arbitrator erred in law when he failed to distinguish the facts in the present case from the facts which existed in a number of authorities to which he referred.
2.The Arbitrator erred in fact when he found that there had not been a great disparity between the incomes of the Respondent/Worker and Ms Hennen.
3.The Arbitrator erred in fact when he determined that the allegedly dependant children spent ‘a little more time’ residing with Hennen than the Respondent/Worker.
4.The Arbitrator erred in fact when he failed to determine that the subtraction of the Respondent/Worker’s income would not have had any real effect upon the support of the children by Ms Hennen.
5.The Arbitrator erred in law when he regarded as being relevant that the support of the children was the ‘joint and several’ responsibility of Ms Hennen and the Respondent/Worker, whether separated or not, when the issue was whether the children were wholly or mainly dependant upon the Respondent/Worker.”
SUBMISSIONS, EVIDENCE AND FINDINGS
20.In proceedings before the Arbitrator, the Appellant Employer submitted that the finding of the Compensation Court on 24 June 1999 that the children were not dependent on the Respondent Worker constituted an estoppel such that the Respondent Worker needed to show a change in circumstances since that time in order to succeed.
21.No issue is taken on this point on appeal. Much of the Arbitrator’s reasons deal with the ‘change of circumstances’ of the Respondent Worker since the award of 24 June 1999.
22.The thrust of the Appellant Employer’s submissions is that the children cannot be mainly dependent on both parents if they are separated, and that in this case, the facts disclosed that they were not mainly dependent on the Respondent Worker. In support of this proposition, the Appellant Employer identified a number of factors, such as; that at all material times, Ms Hennen had a significantly greater income than the Respondent Worker; that the children spent the majority of time in the care of their mother, Ms Hennen, and the allocation of the parenting allowance was 75% to Ms Hennen and 25% to the Respondent Worker.
23.The Appellant Employer submits that:
“The evidence of Ms Hennen was to the effect that the Respondent Worker provided very little in the way of support to the children and that it was she who purchased the groceries, paid the other household bills and paid the instalments on the mortgage from her own financial resources… the children from a factual point of view were mainly dependent from day to day upon their mother for support.”
24.The Appellant Employer refers to two authorities to which the Arbitrator referred, notably Campbell v Department of Community Services (2000) 19 NSWCCR 336 (‘Campbell’s case’) and Spenceley v Deniliquin Shire Council [2001] NSWCC 110 (‘Spenceley’s case’) and submits that the facts of these cases were quite different to the present case such that “… the Arbitrator has erred in law and in fact by failing to distinguish the various authorities.”
25.The Arbitrator listed at paragraph 7 of his ‘Statement of Reasons’ the documentary evidence before him. That evidence included a number of letters or ‘testimonials’ from the Respondent Worker’s friends, neighbours and colleagues as to their authors’ observations of the Respondent Worker’s ‘support’ of his children, together with the Respondent Worker’s detailed statements. The Appellant Employer relied substantially on the judgment of the Compensation Court and some Child Support Agency documents.
26.At paragraph 14, the Arbitrator correctly noted that: “[t]he question is whether the relevant circumstances have changed since 24 June 1999 such that an entitlement for weekly payments in respect of dependent children arises.”
27.The parties do not seem to be at variance on the facts as found by the Arbitrator on this issue. The Respondent Worker and Ms Hennen apparently separated in about 1993. Ms Hennen worked full-time up until September 2000 when she commenced studies and then worked part-time. The Arbitrator stated at paragraph 18 as follows:
“It seems to me that the factual situation is that, for the period claimed, the Applicant and his former spouse maintain separate households, as they have since approximately 1993. The Applicant’s spouse worked fulltime up to September 2000 when she commenced studies and then worked part-time. This caused some financial strain but she got by with the assistance of the parenting allowance. Child support payments were made on an ‘ad hoc’ basis to her by the Applicant up to 2002 when they became more regular, as shown on the transaction summary dated 10 August 2005. Since November 2002, the parenting allowance is paid to both parents, 25% to the Applicant, and 75% to his former spouse. The children were not with the Applicant much until November 2002 when an arrangement was made for the children to be with their father every second weekend and half the school holidays. From Ms Hennen’s evidence, the contact with the Applicant before this was considerably less than that degree. It is also from November 2002 that there is evidence of regular child support payments by the Applicant.”
28.The Arbitrator concluded at paragraph 19 as follows:
“It does not seem to me that the situation had changed much up to November 2002 from the time of Burke J’s orders on 24 June 1999. Access was irregular and some small child support was paid from time to time, as was the situation up to the time of the Court judgment. The Applicant in his statement contends that the lump sums awarded by the Court allowed him to provide better for the children when with him. I accept this, but given the irregular contact and support payments, the opportunity was limited, and I do not see this as of any great significance in the overall position. There is no documentary evidence of significant support prior to November 2002 … the basics of shelter, food and clothing and other sustenance were overwhelmingly provided by Ms Hennen up to November 2002. I find that none of the children were wholly or mainly dependent on the Applicant up to November 2002.”
29.The real issue from the Appellant Employer’s perspective is not so much the fact of the children’s increased contact with the Respondent Worker since November 2002 but whether those circumstances support a finding that the children were ‘mainly dependent’ for support on him.
30.The Arbitrator noted the Appellant Employer’s submission at paragraph 21 as follows:
“The Respondent submits that children may be dependent on both parents in some circumstances, but that this cannot be the case when the parents are separated. I take it that the Respondent contends that when the care of children is shared between separated parents, they can only be wholly or mainly dependent on one. I do not accept that submission. It is not supported by any principle that I am aware of. The intention of the legislation is to provide benefits to support the dependent children of injured workers, and it would be an unfortunate result if dependent children were denied such support where there would otherwise be an entitlement merely because their parents had separated.”
31.At paragraphs 22 – 25, the Arbitrator considered the various ‘facts’ upon which he reached his ultimate determination. For the purposes of this appeal, it is appropriate to set out in detail his reasons as follows:
“22.The difference, I think, is in the way the factual situation is assessed to determine whether what the Applicant is providing is sufficient for the children to be totally dependent or mainly dependent on him. The circumstances of this particular case are that there are two households maintained, between which the children move, obtaining care and support at each. Each parent provides shelter, food, clothing, entertainment, warmth and other sustenance with all the bills that go with the provision of those things. This has been the position since November 2002. It seems likely the children’s mother is now earning more than the Applicant, but this is not the determining factor on the above principles. From 2002 to 2004, when Ms Hennen was working casually and studying, both incomes were relatively small …
23.The disparity between incomes has at no time been so great, on the imprecise evidence available, that one source is overwhelmed. This situation of separated parents gives rise to slightly amended criteria. It seems to me that the provision of the household support framework for the children by the Applicant and his former spouse should be given more importance in determining dependency than the individual income. The relative financial contribution of a worker to one household is more significant than in our circumstances here where a complete and separate household is maintained by the Applicant.
24.The children may spend a little more time residing with their mother than with the Applicant, but since November 2002, have been ‘… totally dependent upon each of two sources of income, the continuation of which is necessary for the support …’ [Campbell’s case]. Even if the Applicant’s support does not reach this level, the children have at least ‘been mainly, though perhaps not totally, dependent upon the Applicant, even though … also dependent to a considerable degree upon [their mother] … [Spenceley].
25.Taking all of the evidence into account, the children have been either totally dependent on the Applicant has part of the ‘joint and several’ responsibility of the parents, whether separated or not, or at least mainly dependent on him since 11 November 2002. I take this date for convenience from the commencement of regular child support payments, because of the evidence of increased care arrangements from November 2002.”
32.The Appellant Employer takes issue with a number of the ‘facts’ as set out by the Arbitrator. For example, the Arbitrator’s statement that “the disparity between incomes has at no times been so great … that one source is overwhelmed.” The Appellant Employer submits that: “[t]he evidence disclosed that at all material times, Ms Hennen had a significantly greater income.” The Arbitrator’s statement, the Appellant Employer submits, is an error of fact since “the limit of the Respondent Worker’s income was the maximum statutory weekly payment applicable to a worker without dependents.” The Arbitrator accepted the Respondent Worker’s contention in his statement that the significant lump sums awarded by the Court (approximately $100,000.00) allowed him to provide better for the children, notwithstanding his ultimate finding that this was not of any great significance for other reasons. It certainly seems that prior to 1999 or 2000, Ms Hennen did earn more than the Respondent Worker, but his circumstances changed somewhat following the receipt of his award in 1999. As the Arbitrator noted, the evidence was “imprecise”, but his finding that the “disparity between incomes” was not overwhelming, was in line with the totality of the evidence before him.
33.As to the Arbitrator’s statement that: “[t]he children may spend a little more time residing with their mother than with the Applicant…”, the Appellant Employer submits that:
“At all times the children resided with their mother and she provided them with a home and paid all the expenses in relation thereto. The children visited their father at the weekend and for half of the school holidays and this arrangement is correctly reflected in the allocation of the parenting allowance.”
34.It is the Appellant Employer’s submission that paragraph 24 of the Arbitrator’s ‘Statement of Reasons’ is “a factual error”. This is not strictly true. The Respondent Worker submits:
“The Appellant’s submissions are based upon an entirely inaccurate assessment of the facts and do not sufficiently attend to the legal principles that apply to the facts … Ms Hennen did not support the children whilst the children were in the care and control of the Respondent Worker, nor did she assert otherwise. When the children were under the care and control of the Respondent Worker, it was the Respondent Worker who solely contributed to their care and support. It is obvious … that the Appellant has proceeded on the basis that the three children at all times resided with their mother and that they only ‘visited’ their father. Leaving aside the insensitivity of such an analysis, it does not properly or accurately reflect the factual situation in this case … during these extensive periods of time the children lived with their father, they were more than guests and they did not ‘visit’ him. Whilst the children were living with their father, they were cared for completely by him in the manner fulsomely described by the Arbitrator.”
35.This is a more accurate analysis of the circumstances of the children’s residence and accords with the Respondent Worker’s statements and other documentary evidence before the Arbitrator.
36.Ultimately, it must be said that the facts as described by both parties are open to interpretation. The question is, was the Arbitrator’s interpretation of facts valid in the context of his ultimate finding?
37.It is appropriate at this point to make reference to a number of authorities on the issue of dependency. At paragraph 15 of his ‘Statement of Reasons’, the Arbitrator quoted extensively from the decision of Acting Deputy President Handley in Coles Myer Limited v Rudzinski [2005] NSWWCCPD 51 wherein, both Spenceley’s case and Campbell’s case were considered at length. The Arbitrator quoted as follows:
“In Campbell, a decision of Curtis J in the Compensation Court of NSW, the Applicant suffered injuries at a time when she was earning $35,000.00 per annum and her husband $42,000.00. His Honour rejected a submission that a child is mainly dependent upon the parent who earns more money. He said ‘a child may in some circumstances be totally dependent upon each of two sources of income, a continuation of which is necessary for the support of that child …’
In Spenceley, a decision of Armitage J in the Compensation Court of NSW, His Honour said … ‘that the obligation of each parent to support a child is joint and several, and a child may in a particular case be totally dependent upon one parent for support notwithstanding that he or she is totally dependent also upon the other parent … Total dependence is not incompatible with the receipt of support from someone else …
Armitage J said … that he was also guided by the decision in Campbell, where Curtis J recognised the dependency as a question of fact, ‘to be judged on the circumstances of a particular case, and is not always excluded as a matter of law in circumstances where a child receives support also from a parent other than the injured worker.’ ”
38.The Respondent Worker also referred the Arbitrator to the Court of Appeal decision in So v So [2004] NSWCA 67. Santow JA, when summarising a number of decisions, particularly in death claims, referred to the decision of Mason J in the leading case of Aafjes v Kearney [1976] 180 CLR 199 as follows:
“The dominating consideration here … is a strong disinclination, founded on commonsense, to attribute to the legislature an intention to deprive an Applicant of a claim based on total dependency for support where a legal obligation to provide that support exists which has not been abandoned, merely because the Applicant is in receipt of benefits from others, whether proceeding from charity or some other motive.”
At paragraph 16 of his decision, Santow JA said:
“In any event, as is clear from cases following Aafjes v Kearney the focus is not upon the relative amounts each parent actually paid or provided. Rather, it is upon the legal obligation of the deceased parent to have supported the child and the reliance placed by that child upon fulfilment of that parental obligation.”
39.In other words, both parents have a ‘joint and several’ legal obligation to support their children. In the circumstances of this particular case, the relative ‘incomes’ of each parent are not determinative where separate households, with their attendant costs and expenses, are maintained by each parent.
40.Similarly with the issue of ‘time spent’ at each home with which the Appellant Employer takes issue, it is not disputed by the Appellant Employer that the oldest daughter, residing permanently with the Respondent Worker since February 2005, is “totally and mainly” dependent for support on him. As to the other two children, again, the evidence supports the Arbitrator’s finding that “… the provision of a household support framework for the children … should be given more importance in determining dependency than the individual incomes.”
41.The Appellant Employer submits that the evidence of Ms Hennen:
“[w]as to the effect that the Respondent Worker provided very little in the way of support to the children and it was she who purchased the groceries, paid the other household bills and paid the instalments on the mortgage from her own financial resources.”
42.As to that evidence, the Arbitrator stated at paragraph 17 of his ‘Statement of Reasons’:
“Ms Hennen … gave oral evidence at the hearing that seemed quite direct, although I am conscious of the context for all the evidence given by the parents after separation … given the emotional factors when the issue is the support of their children … I found Ms Hennen’s evidence reasonably unadorned on the relevant issues. To some extent it added detail to some of the more general points in the Applicant’s statements.”
43.This evidence then simply added to the ‘picture’ of the overall circumstances of the children’s ‘dependency’. The Arbitrator’s conclusion that the children were either totally or mainly dependent on the Respondent Worker “… as part of the ‘joint and several’ responsibility of parents…” was in line with the authorities to which I have referred. The Appellant Employer’s contention that:
“That Arbitrator erred in law when he regarded as being relevant that the support of the children was the ‘joint and several’ responsibility of Ms Hennen and the Respondent Worker whether separated or not when the issue was whether the children were wholly or mainly dependent upon the Respondent Worker”
is inconsistent with those authorities, and I can see no error either of fact or law in the Arbitrator’s determination.
44.One further issue raised by the Appellant Employer is this:
“… an award should not have been made in favour of the Applicant with regard to his own entitlement. That entitlement is already provided for by an award of the Compensation Court which continues to operate.”
45.This is quite true. However, the Arbitrator’s award as I read it merely reflects the rate of compensation payable to the Respondent Worker in line with the award made in his favour in the earlier proceedings, such that I can see no reason to alter or amend it.
CONCLUSION
46.The decision of the Arbitrator was supported by the totality of the evidence before him and was in accordance with the authorities to which he (and I) have referred. I can see no error of fact or law that would justify the revocation of his order.
DECISION
47.The decision of the Arbitrator dated 5 September 2005 is confirmed.
COSTS
48.The Appellant Employer is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
20 June 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
2
0