Spencely v Deniliquin Shire Council [2001] NSWCC 110

Reported Decision : (2001) 22 NSWCCR 7

Compensation Court of New South Wales

CITATION : Spencely v Deniliquin Shire Council [2001] NSWCC 110 PARTIES : Anthony Arthur Spencely Deniliquin Shire Council MATTER NUMBER(S) : 23257 of 1995 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 22/05/01 EX TEMPORE JUDGMENT DATE : 05/22/2001

FOR APPLICANT:Mr P Jeffriess instructed by White Barnes LEGAL REPRESENTATIVES: FOR RESPONDENT:Mr D Saul instructed by W K Chambers and Hunt & Hunt (Canberra)

JUDGMENT: 1. This is a notice of motion by the applicant, Anthony Arthur Spenceley, seeking that an existing award earlier pronounced by me for weekly payments to Mr Spenceley be varied to reflect the statutory rate for a worker with one dependent child, and that such variation be backdated to 26 June 1999. The motion is supported by two affidavits, one of Kathryn Maree Nethery, the applicant's solicitor, sworn 21 February 2001, and the second sworn by the applicant himself on 27 April 2001. The first affidavit, that of Ms Nethery, simply traces a number of attempts in correspondence by herself to obtain the agreement of the respondent's insurer to a variation of the award along the lines sought in the notice of motion. The second affidavit, that of the applicant himself, is rather more detailed and annexes both a copy of my previous award dated 15 April 1997, and a large volume of financial records. 2. It is sufficient however to summarise the applicant's affidavit as follows. On 26 June 1999 the applicant's wife, who at all material times has been in full time employment, gave birth to a daughter of the marriage, Nykita Ashleigh Spenceley. The applicant's income and that of his wife are applied in ways demonstrated by par 10 of the applicant's affidavit. Some variation to the detail contained there is required, because the applicant revealed in cross-examination by Mr Saul on his affidavit today that in fact he pays for food and some household expenses by means of a credit card and that this card is paid for by his wife, rather than himself, so that the table in par 10 of the applicant's affidavit is incorrect where it suggests that the applicant himself pays $400 per month for food and household expenses. Subject to that variation, however, the cross-examination as I understood it did not materially alter the worker's evidence in affidavit form in the table to par 10 of his affidavit as to his and his wife's monthly expenditure. 3. The respondent employer, Deniliquin Shire Council, resists the motion by pointing to s 37(4) of the Workers Compensation Act 1987 ("the 1987 Act"). It reads: For the purposes of this section, a person is a dependent wife, husband, de facto spouse or other family member, child, brother or sister in relation to a worker if the person is totally or mainly dependent for support on the worker at the date compensation becomes payable to the worker or (whether married to the worker or born before or after that date) becomes so dependent after that date. 4. Mr Saul for the respondent takes me to the decision of Johns J in Ritchie v Wambo Mining Corporation Ltd (1995) 12 NSWCCR 273 in which his Honour held that the terms of s 37(4) are such as to require a Court to look at the actual situation as at the date compensation becomes payable, rather than, as one would otherwise have done, by having regard to the definition of "dependents" in s 3 of the 1987 Act, and therefore to the situation which would have prevailed had the incapacity due to the injury not intervened. That general definition is now contained in the Workplace Injury Management Act 1998 ("the 1998 Act") in s 4(1) which says relevantly that "dependents" of the worker means: such of the members of the worker's family as were wholly or in part dependent for support on the worker at the time of the worker's death, or would but for the incapacity due to the injury have been so dependent ... . 5. S 3(1AA) of the 1987 Act now provides: In this Act, words and expressions have the same meanings as they have in the 1998 Act, unless this Act provides otherwise. 6. "The 1998 Act" as a result of s 2A(1) of the 1987 Act means the Workplace Injury Management and Workers Compensation Act 1998 which I have already referred to as "the 1998 Act". This means that for the purposes of the 1987 Act, "dependents" has the meaning I have just quoted from the definition thereof in the 1998 Act unless (see s 3(1AA) of the 1987 Act) "this Act provides otherwise". The question for decision therefore is whether 37(4) of the 1987 Act "provides otherwise". 7. Johns J in Richie's case (supra) thought it did, and I agree. The plain intent, I think, of s 37(4) is to focus attention on the events that have actually happened at the time compensation becomes payable, so as to exclude the notion of weekly compensation nevertheless being payable in respect of persons who would, but for the incapacity created by the injury, have been dependent upon the worker, but are in fact not at the relevant time so dependent. 8. O'Meally J (as he then was) in Taylor v Merck Sharpe & Dohme (Aust) Pty Ltd (unreported, 8 December 1993) awarded compensation to an injured worker on the basis that his wife remained totally dependent upon him in circumstances where the wife had in fact returned to work, but only as a result of necessity created by the injury. Johns J did not follow this decision in Richie's case, and I respectfully agree with Johns J in this regard because it appears to me apparent that s 37(4) is intended in its specific provisions to prevail over the more general provisions in the definition at that time contained in the 1987 Act, but now contained in the 1998 Act and applicable to the 1987 Act, so that additional weekly compensation is not payable to a worker in respect of persons who but for the injury would have been dependent upon him, if they are not in fact dependent when such compensation becomes payable. This means that the enquiry in this case is focused upon whether in fact the child Nykita has been totally or mainly dependent upon the applicant from her date of birth abovementioned until the present time and continuing for the purposes of s 37(4). 9. Mr Saul, for the respondent, after submitting that I should adopt the interpretation of s 37(4) in its interaction with the definition of "dependents" in the 1998 Act at which I have already in fact arrived, strongly submits that the table in par10 of the applicant's affidavit, together with the applicant's answers in cross-examination in relation to his wife in fact paying for the credit card with which he met the cost of food and household expenses, indicates that the child Nykita could not be, and has not been at any material time, either totally or mainly dependent upon the applicant. The basis upon which he makes this submission is the disparity between the applicant's income and that of his wife which is disclosed by par11 of the applicant's affidavit, which shows that the applicant's monthly worker's compensation benefits, which are his only income, are $893 and his wife Natalie's monthly income is $1,536. The paragraph also discloses a fortnightly family allowance received in the sum of $116.20, as I understand the affidavit, but this would appear to be a social security payment which because of s 37(5) of the 1987 Act is irrelevant to the present problem and may be disregarded. 10. Mr Jeffriess for the applicant worker, however, while conceding that Mr Saul's argument is probably correct as to the inapplicability of the general definition of "dependents" in the 1998 Act to s 37 because of sub(4) thereof , nevertheless with at least equal strength submits that par 10 and par 11 of the applicant's affidavit are not inconsistent with the child Nykita being totally or mainly dependent upon the applicant within s 37(4), and that they in fact lead to the conclusion that such child was at least mainly dependent upon the applicant at all material times. This says Mr Jeffriess is because although the income of the wife Natalie undoubtedly exceeds that of the applicant, which is derived solely from weekly payments of compensation, the fact that both parents supply most of the household necessities according to the table, and that by implication the supply of these household necessities benefits the child Nykita as well as her parents, indicates that the child is totally or at least mainly dependent upon the applicant, even though she may well be and probably is totally or mainly dependent also upon the wife Natalie. 11. The household expenses paid by both parents as disclosed by par 10 of the applicant's affidavit are "HCF" (which I gather means health insurance), car insurance, "home contents" (meaning I gather home contents insurance), fuel, nappies, wood, clothes for family, car, electricity, phones both household and mobile, and rates (I gather council rates). The expenses paid by the wife are the mortgage and car loan repayments and post office rental (meaning I gather rental of a post office box) together with, from the applicant's answer in cross-examination, probably most if not all of the food and household expenses. Baby sitting, which is in the not inconsiderable sum of $200 per month, is according to the table in the affidavit still paid by the applicant, and the contrary was not suggested to him in cross-examination. 12. Mr Saul strongly submits that I should not have any regard whatsoever to the cases cited by Mr Jeffriess on the meaning of total and partial dependency for purposes of the death benefits provided by the 1987 Act in s 25 and s 26 thereof, because he says they must be read in light of the general definition of "dependents" from which I have quoted above which is now contained in the 1998 Act and applies to the 1987 Act but which is inapplicable here because of s 37(4) thereof. Thus, he says, I should pay no regard to such cases as McCafferty's Management Pty Ltd v Pimlott (1995) 12 NSWCCR 360 and Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629. In fact I nevertheless gain some general guidance from those cases, in particular from the remark of Meagher JA in Pimlott's case at 364B that the obligation of each parent to support a child is joint and several, and a child may be in a particular case totally dependent upon one parent for support notwithstanding that he or she is totally dependent also upon the other parent. I gain also considerable assistance from the observation by Giles JA at 642 [51] in Holdlin that "total dependence is not incompatible with the receipt of support from someone else". I gain guidance from these cases because they do not seem, at least in the case of McCafferty, to be reliant on the particular provisions in the definition in s 3 of the 1987 Act, now reproduced in s 4(1) of the 1998 Act, in that they deal with actual dependency, not dependency but for injury, at the relevant time, i.e. the date of death. 13. If those remarks are applicable to the concept of total dependency they are even more apt, one would have thought, as a matter of logic, to the proper interpretation of the expression "mainly dependent" in s 37(4) of the 1987 Act in relation to the expression "totally or mainly dependent" used there. The decision of Curtis J in Campbell v Department of Community Services (2000) 19 NSWCCR 336 also cited by Mr Jeffriess is also of some guidance. Curtis J there recognised in a weekly payments context, as here, the principle that total dependency, being a question of fact, is to be judged on the circumstances of the particular case, and is not always excluded as a matter of law in circumstances where a child receives support also from a parent other than the injured worker. 14. Those cases obviously do not resolve the present problem for me, because it is necessary to examine the factual circumstances of this case which are largely (but not entirely) set out in par 10 and par 11 of the applicant's affidavit. I have of course had regard to the totality of the evidence in this case and in particular to the whole of the applicant's affidavit and to his answers in cross-examination upon it today. Nevertheless, the position appears to me to be that par 10 and par 11 of the applicant's affidavit disclose a situation where although the child Nykita is substantially dependent upon her mother, there is also a substantial degree of dependency upon her father. When one looks at the way the total monthly income of the applicant and his wife of $2,655.40 net (see par 11 of applicant's affidavit) is spent in sums totalling $2,480.20 per month (see par 10 of that affidavit) it is obvious that subtraction of one or other parent's income would be catastrophic to the household finances generally, and by extension to the support provided by both parents to Nykita. 15. It seems to me reasonable in those particular circumstances to say that the child Nykita has at all material times been mainly though not totally dependent upon the applicant, even though she is also dependent to a considerable degree upon her mother Natalie. The situation would have been different of course in circumstances where the wife's income exceeded to a much greater degree the income of the worker in weekly payments of compensation. It is not difficult to envisage circumstances where it could not be said in any meaningful sense that a child is totally or mainly dependent upon an injured worker where, for example, the injured worker's wife or husband were successful in regaining employment in a professional or trade capacity resulting in much more substantial earnings than those available to the wife in the present case. 16. In this case, however, a monthly income accruing to the wife of $1,536 is relatively insubstantial by today's standards and the compensation benefits are correspondingly substantial as compared to the wife's monthly income. It seems to me in those circumstances more realistic to find that the true situation is that at all material times the child Nykita has been totally or mainly dependent upon the worker, notwithstanding that the expression "mainly" may also be applicable to her dependency upon her mother, the worker's wife. It seems to me that the expression "mainly" is intended to focus not so much on the relative contributions of the worker and other persons to a child's support but rather upon whether the child has any income of his or her own and the degree to which that interacts with the support received from the worker, although of course the support received from other persons, such as in this case the wife, must also be relevant in that calculus. 17. Thus, for the reasons I have expressed, the applicant is entitled to succeed on the motion and I order that my award of weekly payments in the present matter be varied to reflect the statutory rate for a worker with one dependent child from 26 June 1999 to date and continuing. 18. As to costs, the situation would appear to be that on 26 March 2001 the matter was adjourned because the respondent required an affidavit of the applicant regarding the dependency of the child Nykita upon the applicant. Mr Jeffriess urges for the applicant that this was the first time this requirement was flagged by the respondent and that it was the respondent's fault that the matter was adjourned for lack of such an affidavit. I disagree. Those advising the applicant should have apprehended that the motion on its very terms required the applicant to prove that his daughter was totally or mainly dependent upon him at all material times. This could not be and was not established by the affidavit of Ms Nethery to which I have referred, which simply annexed correspondence showing that the applicant's solicitors had asked the respondent's insurer to consent to increasing the applicant's award to cover the dependency of the child Nykita and that no reply had been received from that insurer to that request. 19. In my view the application was adjourned on 26 March last because of a step not taken by the applicant's solicitors which ought to have been taken on his behalf, and consequently the applicant ought have no costs of that day. However I am told from the bar table by Mr Jeffriess for the applicant without demur from Mr Saul for the respondent that only a day before 15 May 2001 did the applicant's solicitors receive notice that the applicant was required for cross-examination on his affidavit, and that it was impracticable to secure his attendance from Deniliquin, given that notice, the following day. I agree with that submission and it seems to me that the applicant should have his costs of 15 May 2001, and the order for costs I make upon this motion should include the costs of and incidental to that day. 20. I order that the respondent pay the applicant's costs of this motion. 21. I certify for counsel's fees on a motion basis. 22. It is also urged that the applicant's costs on the motion ought include costs incurred by the applicant from 30 June 1999 until the present time, confined to his solicitors efforts to have the respondent consent to the order which was sought on the present motion. No submission is made by the respondent that such costs ought not be included in the general costs order I have made, and I so order. Mr P Jeffriess instructed by White Barnes appeared for the applicant Mr D Saul instructed by W K Chambers and Hunt & Hunt (Canberra) appeared for the respondent