Workers Compensation (Dust Diseases) Authority v Cunha - [2017] NSWCA 111

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Workers Compensation (Dust Diseases) Authority v Cunha [2017] NSWCA 111
Hearing dates: 18 April 2017
Decision date: 25 May 2017
Before: Meagher JA at [1];
Leeming JA at [2];
Simpson JA at [67]
Decision:
1. Appeal allowed.
2. Set aside orders 1, 2, 3 and 4 made by the District Court on 4 August 2016.
3. Cross-appeal dismissed.
4. Remit the matter to the District Court for decision in accordance with law.
5. The Authority to pay Ms Cunha’s costs of the appeal.

Catchwords: WORKERS COMPENSATION – worker injured by exposure to dust – surviving spouse dependent upon worker – whether surviving spouse wholly or partially dependent on worker immediately before worker’s death – primary judge disregarded spouse’s receipt of federal age pension and found spouse wholly dependent – appeal allowed and matter remitted – Workers’ Compensation (Dust Diseases) Act 1942 (NSW) s 8(2B) considered
Legislation Cited: District Court Act 1973 (NSW), s 142N
Regulatory and Other Legislation (Amendments and Repeals) Act 2016 (NSW), item 4.1 of Sch 4
Social Security Act 1991 (Cth), s 37; Module G of Pt 3.2 of Ch 3
Workers’ Compensation (Dust Diseases) Act 1942 (NSW), s 8(2B)
Cases Cited: Allianz Australia Insurance Ltd v Bluescope Steel Ltd (2014) 87 NSWLR 332; [2014] NSWCA 276
B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481
Claydon v Jayton Pty Ltd t/as Stocktrans (1999) 18 NSWCCR 381
Daley v SAS Trustee Corporation (2016) 91 NSWLR 525; [2016] NSWCA 111
Dionisatos (For the Estate of the late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd (2015) 91 NSWLR 34; [2015] NSWCA 281
Fatovic v Standard Telephones & Cable Pty Ltd (unreported, 4 March 1991, Burke J)
Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177
Lembcke v SAS Trustee Corporation (2003) 56 NSWLR 736; [2003] NSWCA 136
Miles v SAS Trustee Corporation [2017] NSWCA 86
North Broken Hill Ltd v Tumes (1999) 18 NSWCCR 412; [1999] NSWCA 309
Patrick Operations Pty Ltd v Comcare (2006) 68 NSWLR 131; [2006] NSWCA 142
SAS Trustee Corporation v Woollard (2014) 86 NSWLR 367; [2014] NSWCA 75
Workers’ Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221
Workers’ Compensation Dust Diseases Board of NSW v Cook [2015] NSWCA 270
Category: Principal judgment
Parties: Workers Compensation (Dust Diseases) Authority (Appellant / Cross Respondent)
Maria Cunha (Respondent / Cross Appellant)
Representation:
Counsel:
M Allars SC (Appellant)
G J Parker SC / J L Sharpe (Respondent)
Solicitors:
Insurance & Care NSW (Appellant)
Taylor & Scott Lawyers (Respondent)

File Number(s): 2016/259179
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Residual jurisdiction

Citation:

[2016] NSWDC 227

Date of Decision:

04 August 2016

Before:

Neilson DCJ

File Number(s):

RJ00043/2016

Judgment

MEAGHER JA: I agree with Leeming JA.
LEEMING JA: Ms Maria Cunha is the widow of the late Jose Henrique Cunha, who suffered…

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: [2017] NSWCA 111
Decision Date: 25 May 2017

CaseChat Overview and Summary

The Workers Compensation (Dust Diseases) Authority appealed to the Court of Appeal of New South Wales against a decision of the District Court concerning the dependency of a surviving spouse on a deceased worker. The dispute centred on whether the surviving spouse was wholly or partially dependent on the worker immediately before his death, a determination crucial for calculating compensation payable under the *Workers’ Compensation (Dust Diseases) Act 1942* (NSW).

The primary legal issue before the Court of Appeal was whether the District Court judge erred in disregarding the surviving spouse's receipt of a federal age pension when assessing her dependency on the deceased worker. Specifically, the court had to consider the proper interpretation and application of section 8(2B) of the *Workers’ Compensation (Dust Diseases) Act 1942* (NSW) in determining the extent of dependency.

The Court of Appeal found that the primary judge had erred by failing to consider the impact of the age pension on the surviving spouse's dependency. The court reasoned that the receipt of a government pension, such as the age pension, is a relevant factor in assessing whether a spouse was wholly or partially dependent on the deceased worker. Consequently, the appeal was allowed, the District Court's orders were set aside, and the matter was remitted to the District Court for redetermination in accordance with the law. The Authority was ordered to pay the surviving spouse's costs of the appeal.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside orders 1, 2, 3 and 4 made by the District Court on 4 August 2016.

3. Cross-appeal dismissed.

4. Remit the matter to the District Court for decision in accordance with law.

5. The Authority to pay Ms Cunha’s costs of the appeal.

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.

Medium Neutral Citation:	Workers Compensation (Dust Diseases) Authority v Cunha [2017] NSWCA 111
Hearing dates:	18 April 2017
Decision date:	25 May 2017
Before:	Meagher JA at [1]; Leeming JA at [2]; Simpson JA at [67]
Decision:	1. Appeal allowed. 2. Set aside orders 1, 2, 3 and 4 made by the District Court on 4 August 2016. 3. Cross-appeal dismissed. 4. Remit the matter to the District Court for decision in accordance with law. 5. The Authority to pay Ms Cunha’s costs of the appeal.
Catchwords:	WORKERS COMPENSATION – worker injured by exposure to dust – surviving spouse dependent upon worker – whether surviving spouse wholly or partially dependent on worker immediately before worker’s death – primary judge disregarded spouse’s receipt of federal age pension and found spouse wholly dependent – appeal allowed and matter remitted – Workers’ Compensation (Dust Diseases) Act 1942 (NSW) s 8(2B) considered
Legislation Cited:	District Court Act 1973 (NSW), s 142N Regulatory and Other Legislation (Amendments and Repeals) Act 2016 (NSW), item 4.1 of Sch 4 Social Security Act 1991 (Cth), s 37; Module G of Pt 3.2 of Ch 3 Workers’ Compensation (Dust Diseases) Act 1942 (NSW), s 8(2B)
Cases Cited:	Allianz Australia Insurance Ltd v Bluescope Steel Ltd (2014) 87 NSWLR 332; [2014] NSWCA 276 B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481 Claydon v Jayton Pty Ltd t/as Stocktrans (1999) 18 NSWCCR 381 Daley v SAS Trustee Corporation (2016) 91 NSWLR 525; [2016] NSWCA 111 Dionisatos (For the Estate of the late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd (2015) 91 NSWLR 34; [2015] NSWCA 281 Fatovic v Standard Telephones & Cable Pty Ltd (unreported, 4 March 1991, Burke J) Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 Lembcke v SAS Trustee Corporation (2003) 56 NSWLR 736; [2003] NSWCA 136 Miles v SAS Trustee Corporation [2017] NSWCA 86 North Broken Hill Ltd v Tumes (1999) 18 NSWCCR 412; [1999] NSWCA 309 Patrick Operations Pty Ltd v Comcare (2006) 68 NSWLR 131; [2006] NSWCA 142 SAS Trustee Corporation v Woollard (2014) 86 NSWLR 367; [2014] NSWCA 75 Workers’ Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221 Workers’ Compensation Dust Diseases Board of NSW v Cook [2015] NSWCA 270
Category:	Principal judgment
Parties:	Workers Compensation (Dust Diseases) Authority (Appellant / Cross Respondent) Maria Cunha (Respondent / Cross Appellant)
Representation:	Counsel: M Allars SC (Appellant) G J Parker SC / J L Sharpe (Respondent) Solicitors: Insurance & Care NSW (Appellant) Taylor & Scott Lawyers (Respondent)
File Number(s):	2016/259179
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Residual jurisdiction Citation: [2016] NSWDC 227 Date of Decision: 04 August 2016 Before: Neilson DCJ File Number(s): RJ00043/2016