Public Trustee v A M Hoipo Pty Ltd - [1999] NSWCA 466

CITATION: Public Trustee v A M Hoipo Pty Ltd [1999] NSWCA 466

FILE NUMBER(S): CA 40298/99

HEARING DATE(S): 12/11/99

JUDGMENT DATE:
17 December 1999

PARTIES :

Public Trustee
A M Hoipo Pty Ltd

JUDGMENT OF: Sheller JA at 1; Beazley JA at 2; Hodgson CJinEq at 39

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S) : 31927/97

LOWER COURT JUDICIAL OFFICER: O'Meally CCJ

COUNSEL: Appellant: L Ellison
Respondent: I G Harrison SC/ M Chan

SOLICITORS: Appellant: P J Whitehead
Respondent: Sparke Helmore

CATCHWORDS: Workers Compensation; Apportionment; Lump sum entitlements of dependents; Workers Compensation ; parties; apportionment application; Workers Compensation; costs; apportionment application

ACTS CITED: Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Workers Compensation Act 1987 (NSW)
Suitor's Fund Act 1951 (NSW)

DECISION: Appeal allowed; Cross-appeal dismissed

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40298/99
CC 31927/97

SHELLER JA
BEAZLEY JA
HODGSON CJ in Eq

Friday, 17 December 1999

PUBLIC TRUSTEE v A M HOIPO PTY LIMITED

FACTS

A M Hoipo Pty Limited (Hoipo) was the employer of Colin Edward Banville who died in a work related accident in 1997. He was survived by his wife, Helen Banville and several dependent children and step-children (the claimants). The claimants were entitled to lump sum compensation under s 25 of the Workers Compensation Act 1987 (NSW) (the WCA) which, under the provisions of the WCA, was required to be apportioned amongst them, either by the Public Trustee or the Compensation Court.

The Public Trustee as it was entitled to do (s 29(3)) apportion the fund in view of the different relationships and varying degrees of dependency of the children. The widow then brought an apportionment application in the Compensation Court, naming Hoipo as the respondent.

When first before the Court the matter was adjourned to allow separate representation; Hoipo was excused from further attendance, and, on the Court motion, the Public Trustee was joined as a respondent. The order excusing Hoipo from attendance was subsequently vacated.

Consent orders were eventually made in the apportionment application, but the question of costs remained in issue. Curtis CCJ ordered the costs of the claimants be borne by the Public Trustee and Hoipo in equal portions.

The Public Trustee and Hoipo each appealed against the costs order made against it.

HELD

Per Beazley JA (Sheller JA and Hodgson CJ in Eq)

(i) The Public Trustee should not have been made a party. The proper respondent to the application was Hoipo as the party liable to pay compensation.

(ii) Hoipo was liable for the costs: ss 112 and 116 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

Per Hodgson CJ in Eq

(i) Considering the Workplace Injury Management and Workers Compensation Act 1998 (NSW) the effect of finding that neither the Public Trustee nor Hoipo liable for the claimants would be that legal advisers of the claimants could not recover costs of disbursement from anyone.

(ii) It could not have been the legislators intention that claimants should be…

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 Public Trustee v A M Hoipo Pty Ltd 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: [1999] NSWCA 466
Decision Date: 17 December 1999

CaseChat Overview and Summary

The Public Trustee, as administrator of the estate of the deceased worker, brought an application for apportionment of a lump sum entitlement under the *Workers Compensation Act 1987* (NSW) against A M Hoipo Pty Ltd, the employer. The dispute concerned how the lump sum payable to dependants of the deceased worker should be divided amongst them. The matter came before the Court of Appeal of New South Wales.

The primary legal issue before the court was the proper method for apportioning a lump sum entitlement for dependants under the *Workers Compensation Act 1987* (NSW). This involved determining the principles to be applied when calculating the respective shares of dependants, particularly where there were multiple dependants with varying degrees of dependency. The court also considered issues relating to costs associated with such apportionment applications.

The court's reasoning focused on the statutory framework for lump sum entitlements and the principles of apportionment. It was held that the apportionment should reflect the degree of dependency of each claimant on the deceased worker. The court analysed the relevant provisions of the Act and considered previous case law on the subject, emphasizing that the ultimate aim was to achieve a just and equitable distribution based on individual need and dependency. The court also addressed the principles governing the award of costs in such proceedings.

The appeal was allowed, and the cross-appeal was dismissed.

Orders

Orders of the court

Appeal allowed; Cross-appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Public Trustee v A M Hoipo Pty Ltd [1999] NSWCA 466
FILE NUMBER(S):	CA 40298/99
HEARING DATE(S):	12/11/99
JUDGMENT DATE:	17 December 1999
PARTIES :	Public Trustee A M Hoipo Pty Ltd
JUDGMENT OF:	Sheller JA at 1; Beazley JA at 2; Hodgson CJinEq at 39

LOWER COURT JURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S) :	31927/97
LOWER COURT JUDICIAL OFFICER:	O'Meally CCJ

COUNSEL:	Appellant: L Ellison Respondent: I G Harrison SC/ M Chan
SOLICITORS:	Appellant: P J Whitehead Respondent: Sparke Helmore
CATCHWORDS:	Workers Compensation; Apportionment; Lump sum entitlements of dependents; Workers Compensation ; parties; apportionment application; Workers Compensation; costs; apportionment application
ACTS CITED:	Workplace Injury Management and Workers Compensation Act 1998 (NSW) Workers Compensation Act 1987 (NSW) Suitor's Fund Act 1951 (NSW)
DECISION:	Appeal allowed; Cross-appeal dismissed