Malbunka v TIO Board - [2004] NTSC 30

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PARTIES: MALBUNKA, Angelina

THE TERRITORY INSURANCE OFFICE BOARD

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: M4 of 2001 (20105164)

DELIVERED: 24 June 2004

HEARING DATES: 25 & 26 May 2004

JUDGMENT OF: MARTIN (BR) CJ

CATCHWORDS:
MOTOR ACCIDENTS COMPENSATION - reference to Motor Accidents (Compensation) Appeal Tribunal - definition of dependent child - effect of punctuation - whether child was "primarily dependent" on the deceased for financial support - appeal dismissed.
Motor Accidents (Compensation) Act (NT) ss 4, 7 and 29.
Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177; Aafjes v Kearney (1976) 180 CLR 199; Victims Compensation Fund Corporation v Brown & Ors (2003) 201 ALR 260, applied.
Hooper v Territory Insurance Office (2002) 11 NTLR 182, considered.
REPRESENTATION:
Counsel:
Applicant: K Kilvington
Respondent: C Ford and T Ling
Solicitors:
Applicant: CAALAS
Respondent: Cridlands
Judgment category classification: B
Judgment ID Number: Mar0408
Number of pages: 18

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

Malbunka v TIO Board [2004] NTSC 30
No. M4 of 2001 (20105164)

BETWEEN:

ANGELINA MALBUNKA
Applicant

AND:

THE TERRITORY INSURANCE OFFICE BOARD
Respondent

CORAM: MARTIN (BR) CJ

REASONS FOR JUDGMENT

(Delivered 24 June 2004)

[1] This is an appeal by way of reference to the Motor Accidents (Compensation) Appeal Tribunal ("the Tribunal") pursuant to s 29 of the Motor Accidents (Compensation) Act ("the Act").
[2] Sherelle Malbunka ("the child") was born on 25 May 1992 to Monica Armstrong ("Monica"). The father of the child was Dixon Malbunka ("the deceased"). The deceased died on 21 April 1997 as a consequence of injuries sustained on 11 April 1997 when he was struck by a motor vehicle while attempting to cross the Stuart Highway at Alice Springs.
[3] Angelina Malbunka ("Angelina"), the sister of the deceased, is the litigation guardian of the child. On 9 December 1999 Angelina made application on behalf of the child for benefits payable under the Act as a consequence of the death of the child's father. It is common ground that the child is only entitled to benefits if it is a "dependent child" for the purposes of the Act. On 30 November 2000 a designated person determined that the child was not a dependent child for the purposes of the Act and that no benefits were payable. By Determination dated 6 March 2001, the Board of the Territory Insurance Office upheld the Determination of the designated person.
[4] Pursuant to s 29 of the Act, the applicant has referred the matter to the Tribunal constituted by a Judge of this Court. The hearing before the Tribunal is a hearing de novo. The Tribunal may make such determination as the Board could have made on the application as the Tribunal considers proper in the circumstances having regard to the intention of…

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.

Continue reading Malbunka v TIO Board

Details

AGLC: Malbunka v TIO Board [2004] NTSC 030
Case: [2004] NTSC 30
Decision Date: 24/06/2004

CaseChat Overview and Summary

Angelina Malbunka, the sister of Dixon Malbunka, sought benefits under the Motor Accidents (Compensation) Act (NT) after the death of Dixon, her brother, in a motor vehicle accident. The key legal issue was whether the child of Dixon, Sherelle Malbunka, was a "dependent child" as defined by the Act at the time of Dixon's death. Specifically, the court had to determine if Sherelle was primarily dependent on Dixon for financial support.

The court examined the definition of "dependent child" in the Act, which includes being primarily dependent on the deceased for financial support. The court concluded that the Legislature intended to compensate only those in specified categories who were "primarily dependent" on the deceased for financial support. The court found that the payments made by Dixon to Angelina were irregular and of varying amounts, and a significant part of these funds were understood to be a contribution by Dixon to the costs associated with his living in the family home. The court also considered evidence of Dixon's heavy alcohol consumption, which suggested that he was not in a position to regularly provide financial support for Sherelle.

The court determined that Sherelle was not primarily dependent on Dixon for financial support, as the substantial majority of her financial support came from Angelina and Centrelink. The appeal was dismissed, and no benefits were payable to Sherelle under the Act.

Orders