Kastelein v Newmont Australia Limited - [2006] NTMC 81

CITATION: Kastelein v Newmont Australia Limited [2006] NTMC 081

PARTIES: ROBERT KASTELEIN

NEWMONT AUSTRALIA LIMITED

TITLE OF COURT: Work Health Court

JURISDICTION: Work Health Act

FILE NO(s): 20517529

DELIVERED ON: 28 September 2006

DELIVERED AT: Darwin

HEARING DATE(s): 8, 9, 10, 11 May 2006

JUDGMENT OF: Jenny Blokland CM

CATCHWORDS:

WORK HEALTH CLAIM – Non Cash Benefit - Valuation

Work Health Act, ss49

Clark v Ryan (1960) 103 CLR 486
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 805
Murwangi Community Aboriginal Corporation v Carroll (2001) 166 FLR 247
William Payne v McArthur River Mining Pty Ltd [2004] BTMC 22
PQ v Red Cross Society [1992] 1 VR 19
English Exporters (London) Limited v Eldonwall Limited [1973] 1 CH 415, 420
Borowski v Quail [1966] VR 382
Millirrpum v Nabalco Pty Ltd (1971) 17 FLR 141
Damian Young v Henry Walker Eltin Contracting Pty Ltd (In Administration) [2006] NTMC 063
Fox v Pulumpa Station Pty Ltd (1999) NTMC 024
Hasting Deering v Smith [2004] NTCA 13
Great Northern Railway v Dawson (1905) 1KB 331
Dophie & others v Robert McAndrew and Co. (1908) 1KB 803
Skailes v Blue Anchor Line Limited [1911] 1KB 360
Sharpe v The Midland Railway Co. (1903) 2KB 26
Normandy NFM Ltd v Turner (2003) 180 FLR 212
Ligertwood, “Australian Evidence” 4th Edition, Butterworths
Freckleton, “The Trial of the Expert”, OUP
Hansard, Northern Territory Legislative Assembly, 14 October 2004

REPRESENTATION:

Counsel:
Worker: Ms Gearin
Employer: Ms Mangan

Solicitors:
Worker: Ward Keller
Employer: Lavan Legal

Judgment category classification: B
Judgment ID number: [2006] NTMC 081
Number of paragraphs: 59

IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20517529
[2006] NTMC 081

BETWEEN:

ROBERT KASTELEIN
Worker

AND:

NEWMONT AUSTRALIA LIMITED
Employer

REASONS FOR DECISION

(Delivered 28 September 2006)

Ms BLOKLAND CM:

Introduction

1. This claim for benefits under the Work Health Act (NT) concerns primarily a claim for specified normal weekly earnings where the component of non-cash benefits is disputed between the worker and the employer. The dispute between the parties commenced in much wider terms but was narrowed significantly during the course of the hearing.

2. What was not in dispute at the conclusion of the hearing was that Mr Robert Kastelein, (“the worker”) was employed by Newmont Australia (“the employer”) as a supply officer at the Employer’s Tanami Granites Mine in the Tanami Desert, Northern Territory from 2 September 2003 to 3 November 2004. Further, it is not in dispute the worker was employed on a “fly in fly out” basis at the Tanami Granites Mine during the period of employment. This form of employment involved a requirement to work 14 days, each day a 12 hour shift followed by seven days off. It is well known, (as is evident in many cases in this jurisdiction), that this is a regular mode of employment in remote areas, particularly in the mining and related sectors. The employer also points out that it was a term of the worker’s employment…

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 Kastelein v Newmont Australia Limited 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: [2006] NTMC 81
Decision Date: 28 September 2006

CaseChat Overview and Summary

This case involved a dispute between Robert Kastelein, the worker, and Newmont Australia Limited, the employer, regarding the calculation of the worker's normal weekly earnings, specifically the valuation of non-cash benefits. The dispute was heard by Chief Magistrate Jenny Blokland in the Work Health Court. The primary issue was whether the non-cash benefits provided to the worker, such as accommodation, food, and amenities at a remote mine site, should be included in the calculation of the worker's normal weekly earnings under the Work Health Act. The worker argued that these benefits were part of his remuneration, while the employer contended they were excluded allowances.

The court ruled that the non-cash benefits provided to the worker were indeed part of his remuneration. The court relied on previous cases such as Fox v Pulumpa Station Pty Ltd and Murwangi Community Aboriginal Corporation v Carroll to support this decision. The court found that the provision of accommodation and food was a significant benefit to the worker and should be included in the calculation of normal weekly earnings. The court also rejected the employer's argument that these benefits were excluded allowances under the Act.

Regarding the valuation of the non-cash benefits, the court admitted the expert evidence of Mr Bill Linkson, a property valuer, who assessed the benefits based on a direct comparison approach. However, the court found that some of the comparisons used by Mr Linkson were too generous and adjusted the valuation accordingly. The court valued the accommodation at $25 per day and the meals at $25 per day, totaling $350 per week.

The court's final decision included the worker's average gross weekly remuneration, the employer's compulsory superannuation payments, and the adjusted value of the non-cash benefits. The court requested the parties to finalize the calculations and set a date for final orders and any issues concerning costs and interest.

Orders