Suich v NTA [2010] NTSC 41
PARTIES: KALIKAMURTI SUICH v NORTHERN TERRITORY OF
AUSTRALIATITLE OF COURT: SUPREME COURT OF THE
NORTHERN TERRITORYJURISDICTION:
SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO: LA11 of 2009 (20730437) DELIVERED: 11 August 2010 HEARING DATES: 11 March 2010 JUDGMENT OF: KELLY J APPEAL FROM: BRADLEY R/SM CATCHWORDS: Interpretation Act 1978 (NT), s 62A
Workers Rehabilitation and Compensation Act, s49, 64, 65
J & H Timbers Pty Ltd v Nelson [1972] 126 CLR 625; Sedco Forex Australia
Pty Ltd v Sjoberg (1997) NTLR 50; Thompson v Groote Eylandt Mining Co
Ltd [2003] NTCA 5; Victims Compensation Fund Corp v Brown (2002) 54
NSWLR 668; and Workcover v Nolan [1999] SAWCT 20, referred to.REPRESENTATION:
Counsel:
Appellant: B O’Loughlin Respondent: G Macdonald Solicitors:
Appellant: Priestleys Respondent: Solicitor for the Northern Territory Judgment category classification: C
Judgment ID Number: KEL 10007 Number of pages: 16 IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINSuich v NTA [2010] NTSC 41 No. LA11 of 2009 (20730437)
BETWEEN:
KALIKAMURTI SUICH
Appellant
AND:
NORTHERN TERRITORY OF
AUSTRALIA
Respondent
CORAM: KELLY J REASONS FOR JUDGMENT
(Delivered 11 August 2010)
| [1] | Australian Mental Health Services, which is a Northern Territory | Ms Suich was employed by the defendant as a counsellor for the Central a client punched her. It is common ground that the injury arose out of or in the course of her employment with the defendant. |
| [2] | In her government employment, Ms Suich worked varying hours per week and was paid a gross hourly rate for that work. In the 12 months before the injury she worked for 34 weeks and was paid $25,719.15, which amounts to average weekly earnings of $756.45 for that employment. | |
| [3] | At the time of her injury, Ms Suich was also earning income from a business which she conducted independently (with the knowledge and approval of the defendant). In that business, Ms Suich provided services to various clients | |
| as a counsellor, yoga instructor, trainer and facilitator. On most occasions the income received by the business was paid to her by clients of the business by reference to the hours worked by Ms Suich, but on some occasions payment was as a lump sum (for writing assessment reports) or per student (in relation to yoga classes). All income from that business was paid to the Kalikamurti Enterprises Trust of which Ms Suich was the trustee. | ||
| [4] | Although the body of the trust deed makes provision for the inclusion of a discretionary class of beneficiaries and enables distributions of income to those beneficiaries at the discretion of the trustee, the relevant item in the schedule to the deed was never completed and in fact the sole beneficiary of | |
| the trust was Ms Suich herself. All of the expenses of the business were paid by Ms Suich from the trust bank account and all distributions of income from the trust were paid to Ms Suich. The business expenses included rent, |
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- AGLC
- Suich v NTA [2010] NTSC 41
- Case
- [2010] NTSC 41
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to determine included the precise meaning of "remuneration" and "remunerate" as used in the relevant statutory provisions, specifically s 49(d)(ii). It was argued that "remuneration" should be narrowly construed to exclude income from business activities, as opposed to income from employment. The court examined dictionary definitions and considered the broader scheme of the Act to arrive at a resolution. The appellant argued that to include business income in the calculation would not only be impractical but also inconsistent with the legislative intent.
The court found that the terms "remuneration" and "remunerate" in the Act should be interpreted narrowly to mean remuneration from employment with an employer. This interpretation aligns with the overall scheme of the Act, which consistently uses remuneration from employment in its calculations. The court rejected the idea that business income should be included in the definition of "remuneration", as such income is not a method by which a worker is remunerated, but rather a method by which a business owner is compensated. Consequently, the court held that business income should not be included in the calculation of average gross weekly remuneration.
The final orders of the court affirmed that business income is not part of the remuneration for the purposes of calculating average gross weekly earnings under the Act, thereby resolving the dispute in favor of the respondent.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The question for determination on this appeal, therefore is: is the income from the appellant’s business activities part of that with which “the worker is remunerated”, bringing the definition in s 49(d)(ii) into play, and, on the same basis, is that business income to be included in calculating the average gross weekly remuneration? “Remunerated” and “remuneration” are not defined in the Act. The Macquarie Dictionary defines “remunerate” as: “v. tr 1. reward; pay for services rendered. 2. serve as or provide recompense for (toil etc) or to (a person).” It has been pointed out that “remuneration” is a wider term than “salary” and that it would include whatever consideration a person receives for providing services[4]. Counsel for the appellant concedes that “remuneration” in s 49(d)(ii) would not include rent or other income derived from the investment of capital in a business, and concedes that it may not always be easy to separate income However, that reasoning leaves out the crucial initial step of determining with precision what meaning should be given to the words “remuneration” and “remunerate” in s 49(d)(ii) so that, whatever difficulty there may be in practice in working out what should be counted in an individual case, there is in principle a clear meaning given to the provision in the Act being construed. One possible solution, is to limit the meaning of “remuneration” in the Act in such a way as to avoid the difficulties. However, they provide some reason to question whether the legislature intended a construction which would produce such a result. More importantly, there is nothing in the scheme of the Act to support this construction. The other, more obvious, solution is to construe the terms “remunerated” and “remuneration” in s 49(d)(ii) as limited to remuneration from employment with an employer. Such a construction is compatible with the scheme of the Act. First, the term used in s 49(d)(ii) is “the worker is remunerated” – which is an indication that the remuneration must be something received by a person in the person’s capacity as “worker”. The definition of “worker” in the Act is lengthy. For the purposes of the present analysis it is sufficient to note that, in that part of the definition supplied for the purposes of the workers compensation provisions of the Act, for a person to be a “worker” requires the identification of an employer. The appellant contends that to construe s 49(d)(ii) in this way would be to read the words “earned as a worker” into the Act. I do not agree. That concept is inherent in the phrase “the worker is remunerated”. Business income received by a person is not a method whereby a worker is remunerated: it is a method whereby a business owner (who may in another context also be a worker) is remunerated. Thirdly, all of the other parts of the definition of normal weekly earnings in s 49 [ie s 49(a), (b) and (c)] clearly utilise remuneration from employment only in their calculations, and there is no logical reason why workers who are remunerated on, say, a weekly basis, should have income other than employment income included in calculating their normal weekly earnings, while those remunerated on an hourly basis do not.