Northaul (WA) Pty Ltd v Buckley
[2023] WADC 73
•6 JULY 2023
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 unsupported by the evidence.
…
3.The Arbitrator appeared to have overlooked evidence.
…
4.The Arbitrator failed to give any or any proper consideration to the Appellants challenges to the Respondents character, credibility or behaviour and found that those challenges were mostly irrelevant to the determination of whether the Respondent was dependent at least in part on the deceaseds earning at the time of his death.
…
5.The Arbitrator misconstrued/misapplied section 1A of WCIMA.
…
Relevant legislative provisions
A purpose of the Act is to make provision for the hearing and determination of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick: s 3(d).
The practice and procedure governing hearings and determinations by an arbitrator is contained in pt XI div 4. Relevantly, s 188(2) and s 188(3) of the Act provide:
188.Practice and procedure, generally
…
(2)The Evidence Act 1906 does not apply to proceedings before an arbitrator and an arbitrator -
(a)is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)An arbitrator may inform himself on any matter as the arbitrator thinks fit.
Section 247(1) of the Act provides that a party may, with the leave of the District Court, appeal to the District Court. Pursuant to s 247(2), leave can only be granted if a question of law is involved. An error of law can involve an error of mixed law and fact.
What is an error of law has been discussed in many cases. The appellant refers to Mazza J in Department of Education v Azmitia [2015] WASCA 246 [120]:
The question of whether an appeal 'involves' a question of law was discussed in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] (Buss JA); BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3] (Pullin JA) and Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [20] (Buss JA). The term 'a question of law is involved' is broader in its scope than provisions which stipulate that an appeal may be brought 'on a question of law'. The authorities to which I have referred do not seek to define the scope of the matters that may be decided where 'a question of law is involved', although they stand for the proposition that an appeal 'involves' a question of law where either an error of law or an error mixed fact and law is involved. An error of fact alone is insufficient.
In Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17, Buss JA stated [21]:
If a ground of appeal by a party, properly analysed, does not involve a question of law, linguistic gymnastics in the formulation of the ground cannot alter the position. A ground that asserts a decision is against the evidence and the weight of the evidence does not raise an issue involving a question of law. A court, tribunal or statutory decision‑maker does not make an error of law merely because the court, tribunal or decision-maker finds facts wrongly or upon a doubtful basis. …
In Catholic Education Office of WA v Granitto [2012] WASCA 266, Murphy JA stated [57]:
Where leave is granted and a review is undertaken, the appellant must still, for the purposes of the review, provide a proper basis for disturbing the arbitrator's decision by pointing to some error in it; the appellant may not simply invite the commissioner just to ignore the arbitrator's decision and start again with a view to having the commissioner substitute his or her own decision for that of the arbitrator. …
In this case there is no dispute the respondent was the married partner of the deceased and as such was entitled to compensation if she was dependent upon him at the time of death. The issue in dispute was whether the respondent was dependent upon the deceased at the time of death. The arbitrator at par 14 of his decision correctly sets out the test for dependency:
Clause 3 relevantly defines a person who is a 'partner' as a 'dependant' if the person 'was wholly or in part dependent upon the earnings of the worker at the time of the workers death.' The adjective 'dependent' is not defined in the Act but its relevant ordinary meaning is 'requiring someone or something for financial or other support.' Ms Buckley will therefore be a dependent if, at the time of Mr Gurr's death, she wholly or in part relied on Mr Gurr's earnings for financial support. Whether a person is wholly or in part dependent upon another is a question of fact.
(original emphasis)
(citations omitted)
In deciding this case I bear in mind:
1.Section 3(d) of the Act - one of the stated purposes of the Act is that the hearing and determination of disputes between parties should be dealt with in a manner that is fair, just, economical, informal and quick.
2.Leave to appeal can only be granted if a question of law or mixed law and fact is involved.
3.In the original dispute before the arbitrator, both parties relied on lodged written submissions, list of authorities and books of documents.
4.Neither party requested an oral hearing.
5.The respondent and the deceased were still legally married. The appellant in essence contended the parties separated in 2016. The issue in dispute was whether the respondent was dependent on the deceased at the time of death.
6.The rules of evidence do not apply and the arbitrator is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
Ground 1 - The arbitrator took into account irrelevant considerations when determining the respondent's application
Particulars
The payment of $5,000 for the claimant's hysterectomy in 2017 was a one-off payment and did not amount to evidence of dependency on the earnings of the deceased at the time of his death on 12 June 2019.
There is no dispute the deceased made this payment. The complaint is the operation took place approximately two years prior to the deceased's death and that the payment was not evidence of maintenance and support at the time of his death.
The appellant submitted to the arbitrator that the respondent and the deceased had separated in August/September 2016 when the deceased had suffered a stroke and by 22 July 2017 was living in Western Australia separate from the respondent. From this I understand the appellant to be saying that from the time of the stroke or at least the time he moved to Western Australia, the respondent was no longer dependent on the deceased as they had separated.
The respondent in her statutory declaration dated 2 February 2022 says:
…
5.I was wholly or in part dependent upon the earnings of Mr. Gurr.
…
12.I needed a medical operation, a hysterectomy, and Mr. Gurr paid $6,000 for this operation.
13.I needed Mr. Gurr to pay these monies because I was not working and could not pay any of it.
…
17.I relied upon my husband, Lyall Gurr, to provide monies for me to live on while together and while he was working in Western Australia.
18.We always planned that Mr. Gurr would work in Western Australia and support me and our household from his work there.
The arbitrator at [27] refers to this payment but it is also important to read [25] and [26] to put it in context:
25.It appears that Mr Gurr had taken a job in the northwest of Western Australia about two years before his death. Ms Buckley remained in Queensland. According to Ms Buckley's statutory declaration, Mr Gurr and Ms Buckley, 'always planned that Mr Gurr would work in Western Australia and support [Ms Buckley and their] household from his work there.'
26.As well as the statutory declaration of Jay Buckley, statutory declarations from Bryan Allan Buckley (Ms Buckley's father), Meryl Dee Buckley (Ms Buckley's mother), Jodie Lynell Burke, Kerri Ann Coventy, and Judith Ann Sokol, and an affidavit from Brooke Meredith attest to the longevity and interdependence of Ms Buckley and Mr Gurr's relationship up to the time of his death.
27.Ms Buckley also claimed that Mr Gurr had paid her $6000 to pay for an operation and produced a bank withdrawal receipt from her own account dated 23 October 2017 in the amount of $5000, which was said to have originated from Mr Gurr and to have been a payment towards the operation undergone by Ms Buckley.
(original emphasis)
The arbitrator at [48] makes a number of findings of fact and at [48(m)] finds:
Mr Gurr paid for or made a significant contribution to the cost of an operation Ms Buckley underwent in around 2017.
The issue for the arbitrator was whether at the time of death the respondent was dependent upon the deceased. The answer to this question does not involve just looking at the circumstances as they existed at the date of death but also as to past events and the nature of the relationship between the parties. Where the appellant has alleged a separation between the parties back to 2016, which is denied by the respondent, evidence as to payments made by the deceased on behalf of the respondent, after 2016, is evidence in support of the respondent that she had not separated and was still dependent upon the deceased after 2016.
In my view the finding of fact of the payment made for the hysterectomy in 2017 was a relevant consideration to the issue of when or if the deceased and the respondent separated. Whether and when the parties had separated was a relevant issue as to whether the respondent was dependent upon the deceased at the time of death, however it was not determinative of that issue.
No error of law or fact is established, I would refuse leave to appeal.
Ground 2 - the arbitrator made findings in the absence of evidence or which were unsupported by the evidence
Particulars
(i) The deceased contributed to the utility bills at [anonymised address], up to the time of his death.
(ii) That the respondent's income as a cleaner was not so generous that she could be said not to be partly dependent on the deceased's contribution.
(iii) That the respondent could not have afforded to pay the rent at [anonymised address] on the income she was receiving from her cleaning job.
(iv) That the respondent would not have been able to afford the rent on [anonymised address] without the deceased's contribution.
Particular (i) - Payment of electricity bill
The respondent in her statutory declaration dated 2 February 2022 stated at par 15:
I needed money to pay my power bill to Ergon for our residence at [anonymised address], and Mr. Gurr paid this bill in full allowing me to keep the power on at our home.
The appellant in its submissions to the arbitrator refers to the statement of Ms McMillan (the deceased's daughter), par 16, where she accepts the deceased may have paid that power bill as he was a generous person.
The arbitrator found at [48(n)]:
Mr Gurr contributed to the utilities bills at [anonymised address] up to the time of his death.
It is not disputed the deceased paid a utilities bill for the appellant prior to his death. No date is given as to the payment of the bill. The complaint of the appellant appears to be that the finding suggests the deceased paid more than one utilities bill. Whilst it may have been more accurate for the arbitrator to have found 'Mr Gurr paid a utilities bill at [anonymised address] prior to his death', in my view the actual finding of the arbitrator is not necessarily an error. The payment of the utilities bill could be described as the deceased contributing to the utilities bills up to the time of his death.
If I am wrong in my interpretation of the finding, then I would find the error to be one of fact and not of law. I was reminded by the respondent in their submissions of the comments of Buss JA in Atanasoka v Inghams Enterprises Pty Ltd (with whom Wheeler & Pullin JJA agreed) [21] that:
… A court, tribunal or statutory decision-maker does not make an error of law merely because the court, tribunal or decision-maker finds facts wrongly or upon a doubtful basis.
Particulars (ii) - (iv) - Respondent's income and ability to pay rent
The three particulars all relate to a finding of fact that the respondent was not able to afford the rent on [anonymised address], on her income, without the contributions of the deceased. It is submitted such a finding was in absence of evidence or unsupported by the evidence.
In relation to [anonymised address] the arbitrator found at [48(h)] that in mid‑2016 the deceased and the respondent rented a property at [anonymised address] and that they renewed the agreement in January 2019. The appellant contended to the arbitrator that the new lease, purportedly signed by the deceased, was a forgery: [43]. The arbitrator rejected that suggestion (at [43] - [44]) and in any event determined it was largely irrelevant to the question of whether the respondent was dependent upon the earnings of the deceased at the time of his death as there was no dispute that the deceased was the actual source of the rental payments. That is, it was not disputed that the rent was $350 a week, the deceased paid $350 a week from his pay into the account of the respondent and she would then pay the rent from her account.
The respondent in her statutory declaration dated 2 February 2022 swore:
•She was wholly or in part dependent on the deceased.
•The deceased paid the full rent of $350 and she depended upon this rent.
The respondent did not give sworn evidence as to her income however she did provide bank statements which showed the respondent being paid by Cairns Cleaning every fortnight on average $1,122.96 (arbitrator's decision [23]). The statements also showed there was very little money in her account and in May 2019 her account was in debit by approximately $177.
The arbitrator at [26] referred to the statements of the respondent's father and mother, Ms Burke, Ms Coventy, Ms Sokol and Ms Meredith who 'attest to the longevity and interdependence of Ms Buckley and Mr Gurr's relationship up to the time of his death'. Further, the statutory declaration of Ms Coventy specifically stated:
I have known lyall and cindy curr for the last 22 years and in that time I have all ways known that lyall was the main fincal supporter in there relationship I known this as after layll passing I had to help cindy out finally to help keep the roof over her head as she had lost the fincal support that lyall had always provided her. In the 22 year I have known cindy she has never asked me for fincal help.
(reproduced as per original)
The appellant in par 4.28 of its submissions to the arbitrator refers to the bank statements and makes the following submission:
…
The Applicant is silent on whether she earned any other income but it is highlighted that there are other credits which are not explained in the statement namely:
Cairns Cleaning - 9 April 2019, 24 April 2019, 8 May 2019, 22 May 2019, 4 June 2019, 18 June 2019, 12 March 2019, 26 March 2019.
An inference can be drawn that this was a payment from the Applicant's employer. The Respondent asks the Arbitrator to draw an adverse inference against the Applicant as to why she did not comment on whether she earnt income from any other source.
The Applicant's evidence is such that she wishes the Arbitrator to find that she was highly dependent upon the deceased's income at the time of his death. The payments made to the Applicant by the cleaning services clearly indicates that that was not the case.
The arbitrator did draw the inference that the respondent was being paid by Cairns Cleaning for work performed. The arbitrator by his decision has not drawn the adverse inference advanced by the appellant above. In my view, the evidence referred to above formed a sufficient basis for the arbitrator to make the decisions complained of in particulars (ii) - (iv), in essence that her income as a cleaner was insufficient to cover the rent and she relied upon the contribution of the deceased in the sum of $350. The financial information before the arbitrator, together with the anecdotal evidence of dependency from others, was more than sufficient to sustain the arbitrator's findings. It would have been preferable for the respondent in a declaration to set out what her income was from all sources, however there was no error of law or facts in the findings by the arbitrator complained of. They were inferences reasonably open upon the evidence before the arbitrator.
No error of law or fact is established, I would refuse leave to appeal.
Ground 3 - The arbitrator appeared to have overlooked evidence
Particulars
Part 2 div 1 cl 3(2) of the General Tenancy Agreement for [anonymised address] made the deceased jointly and severally liable for the rent at the property.
The appellant in its submissions to the arbitrator (par 4.1.2.3) submitted that because the appellant was jointly and severally liable under the lease,
by paying the $350 per week, the deceased was not meeting the Applicant's liability pursuant to the lease but his own.
As such, he was paying no more than what he was obliged to legally.
He was not paying for and on behalf of the Applicant.
Therefore in the words of Lord Loreburn there was no dependency at all as the amount paid of $350.00 was as much as he was obliged to pay on his own behalf not for and on behalf of the Applicant.
The appellant in its submission maintains the arbitrator did not give consideration to this issue and submitted (appellant's submissions, par 44):
The tenancy agreement was evidence capable of supporting a finding against dependency at the time of the deceased's death, that is, it was evidence that the payments made by the deceased were nothing more than the deceased was legally obliged to pay.
I accept the respondent's argument that the ground is without foundation. The arbitrator at [45] dealt with this issue as follows:
Northaul's assertion that Mr Gurr was paying the rent not because of a desire to provide accommodation for Ms Buckley but because he was jointly and severally liable to do so is also largely irrelevant. The question is whether Ms Buckley relied, at least in part, on the rental payments. There are few necessities as fundamental as a roof over one's head and Ms Buckley's income as a cleaner was not so generous that she could be said not to be partly dependent on Mr Gurr's contribution. There is no compelling evidence to suggest that Ms Buckley was receiving financial support of any significance from any other person, such as Mr Ford. However, such support would not necessarily disentitle Ms Buckley to a finding that she was partially dependent on Mr Gurr. I accept that, 'It is not the mere fact of receipt of support but the dependence or reliance upon another to provide it that matters.' However, the facts point strongly to a conclusion that Ms Buckley was both in receipt of and dependent upon the rental payments of Mr Gurr.
(original emphasis)
The arbitrator's reasons reflect common sense. That a spouse is paying rent that they are liable to pay does not mean the other spouse is not dependent on those payments being made.
No error of law or fact is established, I would refuse leave to appeal.
Ground 4 - The arbitrator failed to give any or any proper consideration to the appellant's challenges to the respondent's character, credibility or behaviour and found that those challenges were mostly irrelevant to the determination of whether the respondent was dependent, at least in part, on the deceased's earnings at the time of his death
Particulars
(i)The respondent as the applicant had a vested interest in showing that the evidence established her dependency.
(ii) The veracity of the respondent's evidence was challenged by the respondent and despite having the opportunity to rebut criticisms of her character, credibility or behaviour chose not to lead any evidence contrary to that of the appellant.
(iii)Ms McMillan and Ms Stuntz gave evidence that the relationship ended at or about the time the deceased suffered a stroke directly contradicting the respondent's evidence as she and the deceased remain living together (albeit on the deceased's off swing) and in an ongoing relationship at the time of his death.
Particular (i)
Every applicant for compensation has a vested interest in their application. This particular suggests such an interest should be a matter of comment or consideration when assessing the character, credibility or behaviour of the applicant for compensation. Somehow, the applicant is inherently suspect simply because they make an application and therefore have a vested interest. If this is the submission of the appellant, then as a matter of common sense it must be rejected. The arbitrator was not required to comment on or treat as inherently suspect the evidence of the applicant on the basis that she had a vested interest in the claim.
Particulars (ii) - (iii)
From the documents and submissions filed with the arbitrator it is clear that there was significant dispute between the parties as to whether the respondent and the deceased separated after his stroke in 2016. If they had in fact separated, this would support the appellant's contention that the respondent was not dependent upon the deceased at the time of his death.
The respondent maintained that she was in an ongoing relationship with the deceased at the time of his death. Despite this dispute both parties elected to rely on the filed documents and did not seek to cross‑examine any person on their statements.
The arbitrator at [9] - [10] in his decision reminded himself of s 213(4) of the Act, that in giving his decision:
9.…
(a)I need only identify the facts I have accepted in coming to the decision and give the reasons for doing so; and
(b)I need only identify the law that I have applied in coming to the decision and give the reasons for doing so; and
(c)I need not canvass all the evidence in the case; and
(d)I need not canvass all the factual and legal arguments or issues arising in the case.
10.Nevertheless, I have carefully considered the evidence and the submissions provided by the parties in coming to this decision.
(footnotes omitted)
In Velez Pty Ltd v Tudor [2011] WASCA 218 Murphy JA (with whom Pullin JA & Newnes JA agreed) observed at [68]:
In relation to s 213(4) of the Act, in Sotico Pty Ltd v Wilson [2007] WASCA 112 Wheeler JA (Steytler P agreeing) observed [23] - [24]:
It is important, in my view, to have regard to s 213 against the factual context in which it was enacted. Arbitrators are frequently called upon to give reasons in cases where there will be a very significant number of medical reports, many of which will conflict with each other in terms of the history taken, the diagnosis reached and the prognosis which is given. Injured workers may suffer from a number of different conditions at the same time, and different medical practitioners may assess each different condition in different percentage terms, giving rise to a very large number of potential outcomes. It is against that background that the Arbitrator is required only to identify the facts accepted and to give the reasons for doing so.
By implication, it seems to me, the legislature was intending that the Arbitrator should not be required to engage in an exhaustive process of specifying which opinions were rejected, and the reasons for their rejection. Of course, where some of the opinions rejected attack the reasoning process of the opinion which is accepted, or are based, for example, on a clinical examination which has a result very different from that outlined in the reports to be accepted, it will no doubt be necessary for the Arbitrator, in explaining why he accepts the facts which he does, to explain his preference for that reasoning or for accepting that history as correct, and thereby, indirectly, to engage with the reasoning or fact finding process of those opinions which are to be rejected.
Both parties filed detailed written submissions to the arbitrator in support of their case and urged the arbitrator to make findings of fact in their favour. The appellant went further in its submissions and positively asserted that the arbitrator must accept the evidence of Ms McMillan, Mr Gurr and Ms Stuntz. There is no appeal ground that the arbitrator was bound to accept their evidence.
The arbitrator at [28] - [34] summarises the evidence of Ms McMillan, Mr Gurr and Ms Stuntz. The arbitrator at [34] specifically deals with this evidence in the following way:
Northaul's evidence comprised the above three signed witness statements. Many of the factual assertions are second- or third‑hand hearsay. The parties agreed to have the matters determined on the papers, so it is true that the facts asserted have not been expressly contradicted in the sense of being subjected to cross‑examination. This does not mean that I am obliged to accept Northhaul's evidence in its entirety. Although I am not bound by the rules of evidence, to the extent that Northhaul's evidence is hearsay, unsubstantiated by reliable documentary evidence, I afford it little probative value. I prefer to rely on the undisputed documentary evidence, in particular the bank statements, which unambiguously show that Mr Gurr was effectively paying the entire rent of the residential property in which Ms Buckley lived.
Shortly after the above finding, the arbitrator at [36] makes the following finding:
… To the extent that Northaul's submissions also invite me to make inferences or findings of fact generally adverse to Ms Buckley's character, credibility or behaviour, they are mostly irrelevant to the determination of the question which will determine Ms Buckley's application: was she dependent, at least in part, on Mr Gurr's earnings at the time of his death?
Looked at in the context of the respondent and the deceased being legally married at the date of death, the arbitrator did give consideration to the appellant's challenges to the respondent's character, credibility and behaviour and rejected them on the basis that they were second and third-hand hearsay and unsubstantiated by reliable documentary evidence. The arbitrator then went on to consider the ultimate issue of whether the respondent was dependent upon the deceased at the time of death, and in answering the question looked at the undisputed documentary evidence that the deceased was paying the $350 weekly rental payments for the house the respondent was living in. The arbitrator then proceeded to make various findings of facts [34] ‑ [48].
To the extent necessary, to deal with the ultimate issue of whether the respondent was dependent upon the deceased at the time of death, I find the arbitrator did deal with the issues complained of by the appellant. In my view the arbitrator was not required to give any further explanation for coming to the reasons he did.
No error of law or fact is established, I would refuse leave to appeal.
Ground 5 - The arbitrator misconstrued/misapplied s 1A of WCIMA
Particulars
The finding of dependency was reached after having considered the totality of the respondent's alleged dependency over the course of her relationship with the deceased rather whether there was a dependency at the time of the deceased's death.
The error identified in the written submissions of the appellant is that the arbitrator made a finding of dependency based upon payments made at various times (often unspecified) across the totality of the relationship between the deceased and the respondent when he should have just considered whether the respondent was dependent on the deceased's earnings at the time of the deceased's death, as required by sch 1A of the Act.
The other payments were identified as (appellant's written submissions, par 53):
a.the arbitrator's consideration of payment for a surgery approximately two years prior to the deceased's death; and
b.the arbitrator's consideration of alleged payments for car repairs, power bills and other expenses at various unstated dates/times;
…
In its written submissions the appellant submits these findings 'are telling' (added emphasis). I understand this ground of appeal and the submissions to mean that because the arbitrator made these findings as to payments that occurred before the date of death he has not considered and confined himself to the ultimate issue as to whether the respondent was dependent at the time of death.
It is clear the arbitrator was aware that the issue of dependency was to be determined at the date of death. He said so on nine occasions during his decision at the following paragraphs:
5.The sole issue in dispute in this case is whether Ms Buckley was wholly or in part dependent upon Mr Gurr's earnings at the time of his death.
…
11.For the reasons which follow, I find that Ms Buckley was in part dependent on Mr Gurr's earnings at the time of his death. …
12.… There is no dispute that Mr Gurr was a 'worker' within the meaning of the Act at the time of his death …
…
14.Clause 3 relevantly defines a person who is a 'partner' as a 'dependant' if the person 'was wholly or in part dependent upon the earnings of the worker at the time of the worker's death.' The adjective 'dependent' is not defined in the Act but it
's relevant ordinary meaning is 'requiring someone or something for financial or other support.' Ms Buckley will therefore be a dependant if, at the time of Mr Gurr's death, she wholly or in part relied on Mr Gurr's earnings for financial support. Whether a person is wholly or in part dependent upon another is a question of fact.15.… Neither Ms Sloman, Ms McMillan nor Mr Hugh Gurr have made a claim in this matter and none asserts that they were dependent upon Mr Lyall Gurr at the time of his death.
…
17.… These facts, in themselves, do not prove that Ms Buckley was dependent on Mr Gurr at the time of his death but are part of the factual circumstances of this case.
…
35.In essence, Ms Buckley submits that the evidence proves that she was, at least in part, dependent upon Mr Gurr's earnings at the time of his death. …
…
43.Northaul's contention that the signature purporting to be that of Mr Gurr on the rental agreement on January 2019 was forged is largely irrelevant to the question of whether Ms Buckley was partly dependent upon Mr Gurr's earnings at the time of his death. …
…
49.Having considered the evidence and for the reasons above, I find that Ms Buckley was Mr Gurr's dependent partner at the time of his death and is entitled to the lump sum entitlement sought.
The other payments referred to above were findings made by the arbitrator in a background of where the appellant put in issue the entirety of the relationship of the deceased and the respondent from 2016 onwards. The other payment findings do not support a view that the arbitrator did not assess the issue of dependency at the date of death.
No error of law or fact is established, I would refuse leave to appeal.
Conclusion and final orders
Leave to appeal on each of grounds 1, 2, 3, 4 and 5 is refused.
I will hear the parties as to final orders and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JM
Associate to Judge Miocevich
6 JULY 2023
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