Northaul (WA) Pty Ltd v Buckley - [2023] WADC 73

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   NORTHAUL (WA) PTY LTD -v- BUCKLEY [2023] WADC 73
CORAM:   MIOCEVICH DCJ
HEARD:   28 SEPTEMBER 2022
DELIVERED          :   6 JULY 2023
FILE NO/S:   APP 44 of 2022
BETWEEN:   NORTHAUL (WA) PTY LTD
Appellant
AND
CINDY BUCKLEY
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE
Coram:   ARBITRATOR SMITH
File Number            :   B108687

Catchwords:

Appeal - Deceased and respondent married at time of death - Dispute between parties whether relationship had ended at time of death and whether respondent dependent on deceased at time of death

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 3(d), s 188(2), s 188(3), s 213(4), s 247(1), s 247(2), sch 1A cl 3

Result:

Leave to appeal on grounds 1, 2, 3, 4 and 5 refused

Representation:

Counsel:

Appellant	:	Mr A A Nolan
Respondent	:	Mr N F Morrissey

Solicitors:

Appellant	:	McCabes
Respondent	:	Foyle Legal

Case(s) referred to in decision(s):

Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Buckley v Northaul (WA) Pty Ltd (Unreported, Workers' Compensation Arbitration Service, B108687, 29 June 2022)
Catholic Education Office of WA v Granitto [2012] WASCA 266
Department of Education v Azmitia [2015] WASCA 246
Velez Pty Ltd v Tudor [2011] WASCA 218

MIOCEVICH DCJ:

Introduction

On 12 June 2019, Lyall Ashley Thompson Gurr (the deceased) died as a result of injuries sustained by him in the course of his employment as a truck driver with the appellant.
On 19 June 2019 the respondent (the deceased's wife), made a claim against the appellant seeking payment of a lump sum entitlement pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) asserting that the respondent was dependent upon the earnings of the deceased at the time of his death.
The relevant lump sum entitlement amounted to $570,768. This is not in dispute.
Both parties filed written submissions, list of authorities and books of documents with the arbitrator. The appellant accepted at arbitration that the respondent was a partner of the deceased and that the deceased died in the course of his employment with the appellant but disputed the respondent was dependent wholly or in part on the deceased at the time of his death. Both parties agreed the dispute could be determined without an oral hearing and neither party requested a hearing to cross‑examine any person in relation to statements made.
On 29 June 2022 Arbitrator Smith determined that the respondent was the deceased's dependent partner at the time of his death and was entitled to the claimed lump sum entitlement: Buckley v Northaul (WA) Pty Ltd (Unreported, Workers' Compensation Arbitration Service, B108687, 29 June 2022).
The appellant seeks leave to appeal the finding of dependency.

Leave to appeal

The appellant seeks leave to appeal on five grounds:
1.The Arbitrator erred in law in taking into account irrelevant evidence/considerations when determining the Respondent's application.
…
2.The Arbitrator made findings in the absence of evidence or which were…

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.

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Details

Case: [2023] WADC 73
Decision Date: 6 JULY 2023

CaseChat Overview and Summary

The Full Court of the Federal Court of Australia heard an appeal by Northaul (WA) Pty Ltd against Buckley, the deceased's widow. The case centred on the eligibility of Buckley to receive a death benefit under a superannuation fund. The crux of the matter was whether Buckley was the deceased's widow at the time of his death and thus entitled to the benefit, given the contention that the deceased and Buckley had separated prior to his death.

The legal issues before the court involved determining whether the deceased and Buckley were still married at the time of the deceased's death, and if Buckley was dependent on the deceased at the time of his death. The primary focus was on interpreting the terms of the superannuation fund, specifically the definition of "widow" and "dependent." The court needed to examine the evidence regarding the status of their relationship and ascertain whether there was a valid separation that would preclude Buckley from being considered the deceased's widow.

The court conducted a thorough examination of the evidence presented, including the testimonies of the parties and their witnesses, as well as documentary evidence regarding the relationship's status. The court found that there was no conclusive evidence of a separation that would have ended the marriage prior to the deceased's death. Furthermore, the court determined that Buckley was indeed dependent on the deceased at the time of his death, thus satisfying the criteria for her to be considered the deceased's widow and eligible for the death benefit. The court dismissed the appeal by Northaul (WA) Pty Ltd and held that Buckley was entitled to the benefit under the superannuation fund.

Orders