Potts v Old Brown Dog Pty Ltd
[2002] WASCA 361
•23 DECEMBER 2002
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: POTTS -v- OLD BROWN DOG PTY LTD [2002] WASCA 361
CORAM: PARKER J
TEMPLEMAN J
OLSSON AUJ
HEARD: 6 DECEMBER 2002
DELIVERED : 23 DECEMBER 2002
FILE NO/S: FUL 45 of 2002
BETWEEN: DARREN PAUL POTTS
Appellant (Plaintiff)
AND
OLD BROWN DOG PTY LTD
Respondent (Defendant)
Catchwords:
Appeal - Statutory interpretation - Workers compensation - Whether worker contributed a fishing vessel by reason of a profit sharing arrangement - Whether Act excluded - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant (Plaintiff) : Mr T H Offer
Respondent (Defendant) : Ms P A Saraceni
Solicitors:
Appellant (Plaintiff) : Trewin Norman & Co
Respondent (Defendant) : Cocks Macnish
Case(s) referred to in judgment(s):
Greene v Moss & Anor, unreported; FCt SCt of WA; Library No 950682; 13 December 1995
Case(s) also cited:
Nil
PARKER J: For the reasons published by Templeman J, I agree this appeal should be dismissed.
TEMPLEMAN J: This appeal raises a short question of construction of s 17 of the Workers' Compensation and Rehabilitation Act 1981. The section provides:
"This Act does not apply in respect of disabilities occurring to such members of the crew of a fishing vessel as contribute to the cost of working that vessel, and are remunerated by shares in the profits or the gross earnings of the working of that vessel."
The appellant was the member of a crew of a fishing vessel who claims to have been injured in the course of his employment on 24 April 1996. The appellant brought a claim for damages for negligence against the respondent, on the basis that it was "the owner of or had the occupation and control of" the fishing vessel on which the appellant claims to have been injured.
Implicit in the appellant's claim, is the assertion that the Act does not apply to him. The respondent disputes that contention. The issue thus raised was tried in the District Court as a preliminary issue. It was formulated as follows:
"Was the nature of the (appellant's) engagement with the (respondent) as at 24 April 1996 such that the provisions of the Workers' Compensation and Rehabilitation Act are excluded by reason of s 17 of the said Act(?)"
The nature of the appellant's engagement with the defendant was set out in a number of slightly different ways in the materials before the District Court Judge. His Honour observed that he had not been provided with a memorandum of agreed facts but that he had received an outline of evidence of the appellant and had also received the respondent's submissions directed to the preliminary issue, which submissions identified agreed and assumed facts. In his reasons, the learned primary Judge said an examination of those documents demonstrated that it was appropriate to proceed on the following factual basis:
"1.The (appellant) worked as a deck-hand on the (respondent)'s fishing vessel 'Souwester'.
2.There were no set hours of work, but there was a regime whereby the (appellant) worked two trips on and one off. He was at liberty to negotiate the 'work on trips'.
3.The (appellant) and (respondent) did not have a written agreement identifying the terms of their relationship.
4.The (appellant) did not receive a weekly wage, the basis of his remuneration being that he received 11 per cent of the net product of the sale of the fish caught on the trip less a deduction therefrom of the 'running costs of the vessel' being fuel, bait, ice, freight costs for provisioning the vessel and despatching the catch to market, and provisions for the sustenance of the crew. The other deck-hand, and the skipper (being the total crew complement) were similarly remunerated, although the percentage appears to have varied according to responsibility and experience. The (respondent) made a deduction from each crew member's entitlement, for tax in accordance with their respective PAYE obligations.
5.At the conclusion of each trip a record was completed setting out the financial consequences of the trip, calculating the percentage share due to each member of the crew, and identifying the manner of payment.
6.The (appellant) completed and submitted to the Australian Taxation Office an employment declaration form wherein he declared himself an employee, named the (respondent) as employer, and specified the nature of the employment.
7.The (respondent) maintained a statutory worker's compensation insurance policy covering the skipper and crew."
In my view, it was open to the Judge to find those facts on the materials before him. It was not suggested in the hearing of this appeal that his Honour erred in so doing.
As the learned primary Judge noted, s 17 of the Act has replaced s 19(4) of the Workers' Compensation Act 1912. It was there provided:
"This Act does not apply in respect of accidents to such members of the crew of a fishing vessel as are remunerated by shares in the profits or the gross earnings of the working of such vessel."
As the Judge pointed out, the essential difference between that provision and s 17 of the current Act is the addition of the requirement that the crew member "contribute to the cost of working that vessel". In other words, the Act is excluded not only where the crew member is remunerated by shares in the profits or the gross earnings of the workings of the relevant vessel: he must also contribute to the cost of working that vessel.
It is to be noted that s 17 refers to "profits" or "gross earnings" of the working of a vessel. It is implicit in the word "profit" that there is to be a deduction from gross earnings to reflect the expenses incurred in producing those earnings. In that sense, a crew member who is remunerated by shares in the profits of working his vessel, must be said to be contributing to the cost of working the vessel.
That being so, the additional requirement introduced by s 17, that the Act is not to apply in respect of disabilities occurring to such members of the crew of a fishing vessel as contribute to "the cost of working that vessel" must be taken to reflect a legislative intent to refer to some kind of contribution greater than that necessarily implied in the concept of a profit-sharing enterprise.
That was the approach taken by the learned primary Judge, who said:
"Having regard to the fact that remuneration by receipt of a percentage of the value of the catch is the common basis for remuneration of crew members of fishing vessels, and given the notoriety of that custom within the industry, I think the Parliament added the requirement under consideration so that only those who could be said to be joint venturers or have an entrepreneurial interest in the activity, would not be covered by the Act."
Later in his reasons, the Judge said:
"There can be no doubt that the [appellant] was remunerated by way of a share in the profits or gross earnings of the working of the vessel, and the [respondent] does not contend otherwise. The question is whether it can also be said that the [appellant] thereby contributed to the cost of working the vessel. If the answer to that question in the particular circumstances, is in the affirmative, it would suggest that no distinction can be drawn between the concept of the cost of working the vessel, and that of receiving a share in the profits or the gross earnings of the working of the vessel. The principles of statutory interpretation dictate that cannot be so."
In my view, for the reasons set out above, that was the correct approach to the problem.
In the present case, all that could be said on behalf of the appellant was that he received 11 per cent of the net profit from the sale of the fish caught on each trip, that profit being calculated after deducting some part of the running costs of the vessel from the gross proceeds of sale. That being so, I am in complete agreement with the conclusion of the learned primary Judge that the appellant was not contributing to the costs of working the vessel in the way contemplated by s 17. The Act is not therefore excluded in the present case.
In reaching his conclusion, the Judge referred to Greene v Moss & Anor, unreported; FCt SCt of WA; Library No 950682; 13 December 1995 which involved a consideration of the application of s 17 of the Act to a crewman of a fishing vessel whose contract of employment was governed by a share-fishing agreement.
In that case, the agreement provided that the crewman was to bear 5 per cent of the operating expenses of the vessel: expenses which included the cost of fuel, oil, bait and general provisions for the sustenance of the crew. The Full Court held that the share-fishing agreement was within s 17: and the Act did not, therefore, apply to the crewman in question.
In the present case, the learned primary Judge distinguished Greene v Moss & Anor on the basis that the appellant had no contractual liability to the respondent to contribute to the costs of working the vessel.
While I agree that this is a distinguishing feature in the present case, I do not think it could be said that a binding agreement by a crewman to contribute to the costs of working his vessel is a necessary pre-requisite to the satisfaction of s 17 and hence, to the exclusion of the Act. Each case must turn on its particular facts.
The learned primary Judge regarded the conclusion that s 17 of the Act does not affect the appellant's employment, as being entirely consistent with the primary purpose of the legislation. His Honour had earlier quoted from the relevant second reading speech in which the Honourable the Minister for Labour and Industry, although not referring expressly to s 17, explained the object of the legislation as follows:
"I consider it important to recapitulate on the overall content and intent of this Bill … the Bill applies to all individuals properly classified in a somewhat broad sense as workers who have an employer responsible for their conditions of work and with the right to exercise some control over the manner in which the worker performs the task he is employed to do."
It was urged on the Court by counsel for the respondent that the Act is a species of beneficial legislation which must therefore be interpreted liberally. It is somewhat ironic, in the present case, that the appellant seems not to regard the Act as beneficial to him: he would rather the Act was excluded so that he could pursue a common law remedy. But despite the peculiarity of the appellant's position, the Act must, be regarded, generally, as in the remedial or beneficial category. However, in my view, it is not necessary to resort to a liberal interpretation. The issue can be resolved, as the learned primary Judge resolved it, by applying the normal canons of construction.
In my opinion, this appeal should be dismissed.
OLSSON AUJ: I have had the advantage of reading, in draft, the reasons for decision published by Templeman J. I am in entire agreement with those reasons and would also dismiss this appeal.
0
1