BRAEMA PASTORAL COMPANY LTD and ANOR v HUTCHISON [1993] NSWCA 33

BRAEMA PASTORAL COMPANY LTD and ANOR v HUTCHISON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and POWELL JJA 9 November 1993, 9 November 1993

[1993] NSWCA 33

COMPENSATION TO RELATIVES ACT — WHETHER SELF-EMPLOYED DECEASED PAID TAX — PRESUMPTION OF LEGALITY APPLIED.

The deceased was electrocuted in January 1986 while painting a homestead owned by the appellants. His widow brought an action under the Compensation to Relatives Act. The deceased's eldest daughter gave evidence that a director of the first appellant had told her father that the power had been turned off and this was recorded in a statement by her taken by a police constable five days after the accident. The director did not give oral evidence at trial because of his poor health and age, but the trial Judge offered to attend his home to take evidence. This offer was not taken up. The trial Judge found a verdict for $477,683, which was challenged on a number of factual grounds. One of these grounds was that the assessment was based upon the absence of any evidence that the deceased had lodged income tax returns and paid tax.

Held: (1) An inference against the defendants was open because of their unexplained failure to take advantage of the trial Judge's offer to take evidence on commission at the director's home; Jones v Dunkel (1959) 101 CLR 298 followed; (2) In the absence of evidence to the contrary the Court should proceed on the presumption of legality and regularity so that it should infer that the deceased was lodging tax returns and paying income tax. Marine Investment Company v Haviside [1872] LR 5 HL 624 referred to.

Handley JA This is an appeal by the defendants from a judgment of Carruthers Jwho heard an action under the Compensation to Relatives Act during the special sittings in the Common Law Division in May this year. The appeal has been expedited and properly so. It is a matter of some regret that the trial was not expedited although the widow made an application for expedition. For some reason which mystified Carruthers J and which mystifies me, Master Monaghan refused expedition. As a result a widow who had a claim under the Act for her own benefit and the benefit of her four children had to wait six years to have her action heard, the action having been commenced some two years and three months after the date of death. Fortunately, as I said, this Court has been able to expedite the appeal. Carruthers J gave judgment on 19 July and this Court is hearing the case today.