Hills v Duncombe & Ors [2001] NSWCC 172

Compensation Court of New South Wales

CITATION : Hills v Duncombe & Ors [2001] NSWCC 172 Jacqueline Hills PARTIES : v Robert Duncombe & Ors MATTER NUMBER(S) : 34057 of 2001 JUDGMENT OF: Neilson J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 23/10/01, 24/10/01, 25/10/01 EX TEMPORE JUDGMENT DATE : 10/25/2001

FOR APPLICANT: Mr R Harrington instructed by Carroll & O'Dea appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr T Willis instructed by Somerville Laundry Lomax appeared for the first respondent. Mr A Candy instructed by William Clinton apppeared for the second respondent.

JUDGMENT: 1. This claim arises from the death of the late John Joseph Duncombe who drowned probably late in the evening Sunday 2 April 2000 when the vessel of which he was master capsized and sank in the high seas off Cabarita Beach on the north coast of New South Wales. It must be frankly conceded that for the Duncombe family at large the deceased's death and this claim have become a tragedy. The applicant is the former de facto wife of Mr John Joseph Duncombe who was not working at the time of his death and who was then pregnant with the deceased's second child. That child was subsequently born and has been named 'Jack' in memory of his father. 2. No submission has been put to me that the applicant, Jacqueline Hills, and her two children, Charlie Lexi Duncombe and Jack Duncombe, were not totally dependent for support upon the deceased at the time of his death. In the past the applicant had worked for the Billabong Clothing Company as a designer of ladies fashion-wear but had given up that occupation at the request of the late Mr Duncombe so that she could, firstly, care for the young child, secondly, care for herself during her second pregnancy and, more importantly, so that the pair could spend more time together. 3. The late Mr Duncombe's occupation as a fisherman required him to work generally from dusk in the evening to the early hours of daylight on the following day. The applicant's work practice when she was working for the Billabong Clothing Company was to start work early in the morning about 7 am. What then can be seen is that when the applicant was working at Billabong Clothing Company and the deceased was at sea they would not see much of each other. The only thing which could be put forward to defeat the applicant's claim for total dependency upon her late de facto husband was the fact that she was in receipt of social security payments at the time of the deceased's death. 4. However, that appears to have been prompted largely by the fact that for some three months in early 2000 the deceased's vessel, the 'Gloria J', had been rendered unseaworthy after striking the bar on the Tweed River mouth and was unable to be used for fishing until necessary repairs had been made. That meant that the deceased's source of income was temporarily suspended but he still had the outgoings of paying off his vessel, the Gloria J. Because of the entire financial circumstances engendered by that event, the applicant sought benefits from the Commonwealth of Australia. However, in accordance with authority, the receipt of such benefits would not deprive the applicant of a finding that she was totally dependent upon the deceased at the time of his death and I so find. No submission was put that the deceased's two children were not totally dependent upon him for support - one actually and the other putatively - at the time of the deceased's death. 5. The first respondents in this case are Mr Robert James Duncombe and his wife, Trudy. Robert Ronald Duncombe is one of the six siblings of the deceased worker. John Joseph Duncombe was the youngest of seven children and Robert Duncombe was the sixth of those seven children. The late John Joseph Duncombe was born on 15 March 1973 and accordingly was 27 years old at the time of his death. Robert Ronald Duncombe was born on 19 February 1972 and was accordingly one year older than the deceased. 6. During the evidence the late John Joseph Duncombe was described initially by his Christian name of 'John' but thereafter by his well-known nickname of 'Jacko' and I shall so describe him henceforward. Robert Ronald Duncombe was described merely as 'Rob' and I will refer to him by that nickname as well. The second respondent to these proceedings is the WorkCover Authority of New South Wales as administrator of the Uninsured Liability and Indemnity Scheme because it is common ground that the first respondents, Rob and his wife Trudy, were not insured for their liability, if any, under the Workers Compensation Act 1987. The tragedy can be seen in the fact that Jacko has died, leaving a wife and two children totally dependent upon him for support at the time of his death, and that a claim for compensation, if successful, may well be visited upon his brother, Rob, and his sister-in-law, Trudy, who have their own personal and medical problems as well as financial problems and the obligation to raise two young children themselves. 7. It appears that at an early age both Jacko and Rob entered the fishing industry initially as deckhands and they had both in due course qualified to be skippers of fishing vessels. Jacko earned his skipper's licence at the age of 19. In mid or late 1996 it appears that Jacko and Rob formed a partnership involving the use of the vessel Gloria J. That vessel from, it appears, that time and until the time of the deceased's death was operated by Jacko under a lease arrangement with the vessel's owner, Thomas Leslie Olley. Effectively, under the lease, Jacko became the owner of the vessel and Mr Olley the financier. 8. The partnership between Rob and Jacko did not last very long. Jacko had allowed Rob to manage the books of the business but when the applicant got hold of them she found what she considered to be irregularities which she drew to Jacko's attention and it appears that the partnership was quickly dissolved and thereafter Jacko continued with the Gloria J on his own account. It is clear that there was animosity between Jacko and his wife, the applicant, and Rob for some short time but I am persuaded on the evidence that the bad blood between them would have evaporated within say six months of the event and would have been a matter merely of historical note by say mid-1997. 9. In probably August 1999 Rob purchased his own vessel, the Nite Linger. That was bought in the joint names of himself and his wife, Trudy. Rob engaged from about November 1999 a deckhand, Leslie Aaron Austin Claydon who everyone knew by his nickname of 'Sleepy' and I mean no disrespect to him by so describing him hereafter. Prior to the significant events (to which I shall shortly turn my attention) it appears that Rob was operating the Nite Linger with Sleepy as his deckhand out of the port of Iluka. Jacko was operating his vessel, the Gloria J, with his usual deckhand, Mr Darren Tooney, from the port of Tweed Heads. Both vessels were only engaged in intra-state fishing. Darren Tooney was referred to in the evidence by his nickname of 'Shorty' and I mean it as no disrespect to him to so describe him hereafter. 10. In January 2000 Rob and his wife, Trudy, developed matrimonial disharmony leading to an estrangement. Rob left the matrimonial home at 68 Charles Street, Iluka and went to stay for a couple of weeks with his mother, Anne Duncombe, who lived at 3 Koala Close, Iluka. After a few weeks staying at his mother's house Rob took a flat elsewhere in Iluka. He did not resume co-habitation with his wife prior to 15 March 2000 at which time Trudy was admitted to hospital. However, during that period Rob would call in to the matrimonial home to visit his two young children and clearly was seeking reconciliation with his wife. 11. On 15 March 2000 Trudy was admitted to hospital for a gynaecological procedure necessitated by a number of earlier ectopic pregnancies. On the evidence before me a major mistake was made during that surgery and a laser beam pierced Trudy's bowel leading to a major life-threatening illness. Indeed it is fairly clear that it was thought that Trudy would not survive that post-surgical complication. Trudy was admitted to intensive care at the Grafton Base Hospital for about 11 days. The evidence suggests that the sudden deterioration of Trudy's condition occurred on 17 March 2000. 12. Clearly there was major concern and indeed panic in the Duncombe family when it was thought that Trudy might not survive her medical condition. It was necessary for Rob to stop working and to look after his children and also to be with his wife. Rob told me, without any challenge, that with the exception of one day and night he spent the whole period of Trudy's admission in the intensive care ward at the Grafton Base Hospital. When Trudy was eventually discharged from hospital there was a period of eight weeks when he needed to stay at home and look after both his wife and his two children. When Rob was at the hospital trying to console his wife during her illness, one of his sisters-in-law cared for the two young children. 13. It is fairly clear that the crisis caused by Trudy's severe illness was communicated to Jacko. The applicant told me that Jacko's mother, Annie, telephoned him on a number of occasions about Rob having "gone missing". Such conversations between Mrs Annie Duncombe and Jacko were denied by Mrs Duncombe. The applicant also told me that Jacko told the applicant that Mrs Annie Duncombe's home was collateral for the lending of $150,000 which had enabled Rob to buy the Night Linger. The applicant told me that, about two weeks before Jacko took over the operation of the Night Linger, Mrs Annie Duncombe called and asked whether Jacko and/or his defacto, the applicant, who was referred to as 'Jacqui', had seen Rob at Tweed Heads. The applicant said that in another conversation that Jacko had with his mother, Annie, his mother had expressed her concern that her house might be re-possessed because payments on the vessel, the Night Linger, were not made. Those conversations were all denied by Mrs Annie Duncombe. 14. However, Mrs Duncombe's evidence can be seen to be unreliable and understandably unreliable. For example, it is common ground that Rob and Trudy were estranged for at least two months between early to mid-January 2000 and 15 March 2000. According to Mrs Annie Duncombe the estrangement was only for initially two weeks, one of which weeks he spent at her home, another week of which he spent at a flat but then she said that the estrangement was only for one week. Her evidence in that regard is obviously inaccurate. 15. Mrs Duncombe did not provide me with her age but the inference I drew from seeing and observing her is that she was in her eightieth decade, that is she was more than 70 years old. However, age can be unkind to some. She may be younger but she would have to be at least in her late 60s. Mrs Annie Duncombe clearly has good reason for having an unreliable memory. She told me that she had had three cerebro-vascular accidents or, as she referred to them, 'strokes' and that her memory was not good. She recited to me a litany of medications, some of which might interfere with mentation. When pressed in cross-examination about financial affairs she told me that she did not speak to her sons about such matters but her sons talked to her partner, Ian, about that. Clearly, Mrs Annie Duncombe was upset not only by the death of Jacko but by the potential of this claim to hurt Rob and his family. In other words I formed the view that Mrs Annie Duncombe besides being unreliable for understandable reasons also had a partisan view of the dispute which has arisen between her daughter-in-law Jacqui and her son Rob. I cannot put any reliance and do not on the evidence of Mrs Annie Duncombe. 16. It appears to me that it is likely that there was some discussion between Jacko and his mother. It was communicated to Jacqui about Mrs Annie Duncombe's concern about Rob "going missing" which merely may have been his move from her house to a flat elsewhere in Iluka and her losing contact with him on a temporary basis. I am also persuaded that it is likely that there was some conversation between Jacko and his mother about her concern about losing her dwelling house if payments were not kept up to the financier, Esanda, for the purchase of the Night Linger. In any event very little probably turns on those conversations. 17. The applicant, Jacqui, told me of a conversation that she had with Jacko in their car. It appears that this was after the problem with Trudy's health had been communicated to him. She said that Jacko said that "he'd take over the boat" (meaning Rob's boat, the Night Linger). That upset Jacqui because "our boat" (meaning the Gloria J) had been out of use for approximately 12 weeks, because of damage done when the boat struck the bar at Tweed Heads, and they were in financial difficulties, and now that the vessel was seaworthy Jacko was proposing to operate his brother Rob's vessel. The applicant said that Jacko said that he was only doing it because his mother's house was collateral for Rob's debt to Esanda and he wanted to save his mother's house. 18. I am persuaded that Jacko did say that, but, of course, that does not prove that that was his real motive. It is not uncommon for spouses to dissemble with each other and because of what had occurred in the past Jacko may have thought that if he wished to help out Rob it would be more prudent on a matrimonial basis to tell his wife that he was doing it merely to protect his mother's interests. The applicant told me that Jacko said that he would engage a skipper to work on the Gloria J, paying him 20 per cent of the catch, and that he would take 25 per cent of the catch of the Night Linger whilst he operated it for his brother Rob and that therefore his family would come out ahead. Of course Jacko's telling that to Jacqui does not mean that that agreement had been reached with Rob. 19. The applicant told me of a further conversation between Jacko and Rob on the telephone in which Jacko said to Rob "you get all the paperwork ready and when you're ready I'll take the boat". The applicant told me that she was angry about the whole dealing that had been arranged. In any event she thought on Thursday 23 March at about 2 am she left the family home at Elanora to drive down to Iluka which was reached at about 5 am. The purpose was to take Jacko down to Iluka so that he could take over the vessel, the Night Linger. The applicant herself stayed at her father's house at Iluka for about four days. She told me that during those days she spoke with her husband each day presumably by telephone. The applicant then returned to Elanora, the family home, in the Tweed Heads area. It is common ground that the deceased, Jacko, steamed the Night Linger up to Tweed Heads and fished it off Tweed Heads, often working in tandem with his own boat, the Gloria J. 20. Despite a vigorous defence in which everything possible point could be taken a number of things are common between the parties, between the applicant and the first respondents. The first is that an arrangement was made whereby Jacko took over Rob's vessel, the Night Linger, with a view to continuing to operate it. It is also common ground that and must therefore have been discussed that the vessel was to operate out of Tweed Heads rather than its usual port of Iluka. It is common ground that the Night Linger would operate with its usual deckhand, Sleepy, and that Sleepy would be paid his share of the catch by Rob, that is, as had always been done. 21. It is also common ground that Rob would pay for the ice needed to preserve the catch of the fishing vessel and would pay for the fuel necessary to run the fishing vessel. It became clear from concessions made by Rob in his evidence that he expected to receive the usual owner's cheque from the fishbuyer for the purchase of the daily catch. From that cheque it is clear that Rob anticipated paying the deckhand, Sleepy, paying the financier, Esanda, paying the other outgoings of the vessel and, hopefully, making some profit as income for himself and his family. 22. The applicant's case is that it had been agreed that Jacko would receive 25 per cent of the catch being the master's share of the catch for "wages". This is strenuously denied by Rob who says that a question of a percentage was never discussed. However, he conceded that he could not expect his brother to make a loss out of assisting him and expected that he would take a percentage of the catch and said at one time that he would have paid to his brother whatever his brother demanded of him. When pressed in that regard Rob made it quite clear that he expected his brother to act reasonably. I suggested to Rob that if Jacko had taken 100 per cent of the catch that he would scream 'blue murder'. Rob agreed with that proposition. He clearly expected sufficient to be left by Jacko to enable him to pay his financier and to pay other necessary outgoings and enough to pay his deckhand, Sleepy. He also conceded that the usual percentage paid to a skipper was 20 per cent of the catch but that an extraordinary skipper might be paid 25 per cent by some. One common factor in this case is that all the witnesses agree that Jacko was one of the best skippers of fishing vessels on the north coast of New South Wales and Rob conceded that Jacko could have commanded 25 per cent of the catch. 23. When it is all boiled down to tin tacks the only disagreement really is whether it had been agreed between Jacko and Rob that Jacko take 25 per cent of the catch or whether there was no agreement as to any amount, it being merely left by the one brother, Rob, to trust his brother, Jacko, to do the right thing by him. As I said, arguendo, to Mr Willis for the first respondent does that dispute make any difference to the outcome of the case? If the consideration is an agreed amount of work done and that is the money recoverable in an action for breach of contract. If the quantum of consideration is not agreed, the action is in quasi-contract on a quantum meruit basis. That necessitated the first respondent to change slightly the grounds of defence. Although it is probably not necessary, I shall determine the issue as to whether any agreement was reached between Jacko and Rob as to the percentage which Jacko would take of Rob's catch. 24. I have already recited the evidence given by the applicant, Jacqui, of what Jacko told her. Of course that does not mean, as I already said, that that had been agreed between Rob and Jacko although it does point slightly in that direction. Evidence was adduced from Mr Russel John Leeson who was also a professional fisherman. He said that he had had several conversations with the deceased in the short period prior to his death when the deceased was operating the Night Linger. He told me that he was the skipper of a vessel known as the 'Spring Tide' and he received a skipper's percentage of 20 per cent. He told me that he had been in the industry for some 20 years and skippers were always paid a percentage of the catch. 25. That is common ground in this case and the evidence discloses that the normal and almost invariable practice in the fishing industry is for deckhands to be paid a certain part of the catch by the owner of the vessel and the skipper, if he be not the owner of the vessel, to be paid a higher percentage of the catch. It appears that deckhands when they start off may be only paid a very small percentage but they are usually paid between 10 and 15 per cent catch. Skippers are paid between 15 to 20 per cent of the catch and sometimes up to 25 per cent. According to Mr Leeson, Jacko said that he was working on the skipper's percentage. He said that he was working on 25 per cent of the catch and only had to pay 20 per cent of the catch to the skipper of his vessel and therefore he was "5 per cent ahead". Mr Leeson said that he talked several times about that issue to Jacko. 26. It was Mr Leeson who first noticed wreckage at sea which indicated that the Night Linger had foundered. He told me that the vessel had foundered 6.1 nautical miles east of Cabarita and 19.8 nautical miles north of Cape Byron, in 32 fathoms of water. That fishing ground which was a usual fishing ground for prawns in this area was one-and-a-half hours steaming from Tweed Heads. He said that the nets of the Night Linger were out indicating that the Night Linger was trawling at the time it foundered. Clearly the arrangement which Mr Leeson discussed with Jacko, was the same arrangement that Jacko had mentioned to Jacqui. Consistency again points in the direction of a definite arrangement having been made. 27. I have already mentioned that Mr Darren Tooney or 'Shorty' was the usual deckhand on the Gloria J. Shorty also had some conversations with Jacko. Jacko outlined to Shorty what he proposed to do and Shorty said that he would not work Gloria J as skipper. Although qualified to act as skipper he did not like acting as skipper. Jacko, however, said to Shorty that he would not trust his vessel to anyone other than Shorty and Shorty then agreed to act as skipper. He took on his brother as deckhand and the brothers Tooney pooled the 20 per cent skipper's take and the 15 per cent deckhand's take by each taking 17.5 per cent of the catch. Shorty told me that Jacko told him that he will be working Rob's boat on "skipper's wages" but no percentage of the catch was mentioned. It may be that it was mentioned and Shorty has forgotten. It may be that it was never mentioned because Jacko did not want Shorty to find out that he was making a profit by letting Shorty skipper Jacko's vessel. 28. Evidence was also adduced from Mr Thomas Leslie Olley, the owner of the Gloria J, but really its financier. He obviously knew Jacko and the other members of the family fairly well. He confirmed that in the early part of the year 2000 the Gloria J was not at sea but undergoing repairs. He inspected the boat from time to time as it was being repaired, no doubt because it was in his own financial interest to see that the boat was repaired promptly and repaired properly. It is also clear that whilst the vessel was not seaworthy that Jacko would fall behind on his lease repayments to Mr Olley. 29. Mr Olley said that he had a conversation with Jacko about the Night Linger. Mr Olley said that he said to Jacko "what are you doing on this heap of shit?" He said he had that conversation when the Night Linger was tied up at Tweed Heads. It is common ground that the Night Linger is smaller than the Gloria J and conceded by Rob that the Gloria J was a much better vessel than the Night Linger. Hence, one can see why Mr Olley described the Night Linger in the way that he did. Mr Olley was concerned that Jacko should be working Rob's vessel rather than the Gloria J which was in fact Jacko's under the lease and in the profitability of which Mr Olley had a financial interest. He told me that Jacko told him that he would get 25 per cent of the catch of the Night Linger but only had to pay the skipper of his vessel 20 per cent of the catch and in that way he would make greater income. This was at a time when the income of Jacko had been diminished by the 12 weeks unseaworthiness of his own vessel and when his family were undergoing financial difficulties as Jacqui attested. 30. According to Mr Olley, Rob was present when he had that conversation with Jacko and Rob said to Mr Olley that it was "none of your business". It was put to Mr Olley forcefully that that conversation did not take place at all. The version offered by Rob is that Mr Olley complained to Rob that it was not right that Jacko drive two ships or that it was impossible for him to drive two ships. Rob reported that to Jacko. Jacko then went and spoke to Mr Olley and Jacko returned to Rob and said that he told Mr Olley it was none of his "fucking business" . Rob said that there were about 100 m between Rob and Jacko when Rob had his conversation with Mr Olley and about 130 m between Rob and Jacko when Jacko had his conversation with Rob. Mr Olley says they were all present near each other and could recall exactly whereabouts the three men were on the wharf and indeed what was being done, namely the repair of the nets. The picture of the conversation painted to me by Mr Olley in his evidence bore every hallmark of clear-recollection and a vivid memory of what the parties were doing and what the parties said. 31. I was impressed by that evidence of Mr Olley and nothing that Rob told me sways me from the view that I ought accept the version of the conversation as recounted by Mr Olley and I do. Furthermore Mr Olley has no financial interest in the outcome of this case despite Rob's view to the contrary. Clearly Rob holds an animus against Mr Olley. He told me that he had a very negative view of Mr Olley since the time of his brother's death and indeed Rob referred to Mr Olley as a "germ". His loathing of Mr Olley was patent. That loathing Rob said commenced when Rob received a telephone message from a firm of solicitors who usually acted for Mr Olley, enquiring about details of Rob's workers compensation cover. Assuming that those solicitors rang at the request of Mr Olley, I see nothing sinister whatever in the request. Clearly there were a dependent wife and two dependent children, both very young, grieving for the death of their husband and father. A rapid admission of liability by an insurance company may have helped at least to take away anxiety that the family might experience about what they might live on following the death of the breadwinner of the family. Furthermore, if Rob had been insured, and, of course, the widow and children were entitled, prompt action by an insurer would have saved a lot of anxiety all round. 32. If this was an indication of Mr Olley's "meddling" one can see, unless one is extremely cynical, that it was motivated by the best of intentions. The inference I draw is that Rob developed an animus towards Mr Olley when he perhaps prompted the applicant to start a worker's compensation claim arising out of the death of her late de facto husband. However, although there be animus exhibited towards Mr Olley by Rob, I did not detect any such animus directed by Mr Olley against Rob. Rob believed that Mr Olley would somehow himself benefit financially from the payment of workers compensation to the widow. There is absolutely no foundation in fact or in law nor any possible speculative way in which Mr Olley might benefit from the widow and her children obtaining workers compensation benefits especially when it is to be remembered that the capital sum will be held on trust. When pressed as to what made him perceive such financial interest Rob could not explain in any way. 33. I accept therefore that the deceased Jacko told Mr Olley of this arrangement in the presence of Rob and that rather than deny that agreement had been reached Rob merely told Mr Olley that it was none of his business. There are a number of other matters and other things which fortify me in that view. It seems to me highly unlikely that Jacko would have told Mr Olley to "mind your own fucking business". I do not mean by that that Jacko was not used to using such language. However, it must be recalled that Mr Olley was Jacko's financier, that Jacko was in financial difficulties because the vessel had been out of action for 12 weeks, that Jacko may have been in difficulty with paying the instalments due under the lease. The last thing someone in Jacko's position would want to do is to annoy the financier. Furthermore, when answering one of the questions, I do not know whether it will come up in the transcript - but careful listening to it will - when being cross-examined about these very matters Rob commenced to say "I said none of your... " and then broke off and said when it was said by Jacko. He started saying that he said it but quickly corrected himself. 34. The other evidence which points in the direction of an agreement having been reached that Jacko would work for 25 per cent of the catch is the document which is Exhibit G. The purchaser of the catch of the Night Linger when it worked out of Tweed Heads was Mr Ray Williams who appears to trade as Southern Cross Seafood Traders. After the deceased's death the applicant told me that Ray Williams gave her a sheet of paper which eventually became Exhibit G. Ray Williams told her that that represented a calculation of the "wages" that Jacko was entitled to prior to his death. Exhibit G contains three sums. They are $2,149.60, $1,472.25 and $1,000.10. Those three sums have been added up and the total is shown as $4,621.95. That sum has then been multiplied by 25 per cent and the product is shown as being $1,155.49. That was the sum which Ray Williams represented to Jacqui was the sum that Jacko was entitled to as his share of the catch of the Night Linger. The significance of course is the division of the gross sum by one-quarter, indicating 25 per cent catch. Clearly if that percentage had at some stage been communicated to Mr Ray Williams by someone - whether it be by Jacko or by Rob I do not know - but clearly Ray Williams was another person who was aware of the 25 per cent arrangement. 35. The three primary sums to which I have referred may be cross-referenced against documents in Exhibit 5. Exhibit 5 is a quotation book that appears to record amounts of catch and the rate of payment of the catch, the sum for each catch that Mr Williams purchased from various vessels. There is reference to the "FV" meaning fishing vessel Night Linger on 24 March 2000 where the owner of the vessel is clearly shown as "Robert Duncombe". The total catch landed amounted to $1,000.10 and that sum is shown on cheque butt number 709889 in a cheque payable to "R Duncombe". There is a quotation bearing date 30 March 2000 in reference to the Night Linger and "J Duncombe" where the total of the catch is $1,472.25. That must be cross-referenced against cheque number 709893 drawn on 7 April 2000 and payable to "R Duncombe" . There is a further quotation of 1 April 2000 with a total catch of $2,149.60 which is covered by cheque numbered 709891 drawn on 4 April 2000 and payable to "R Duncombe". 36. It is clear that the deceased signed each of the three quotation documents to which I have referred. Clearly Mr Ray Williams was aware that the Night Linger belonged to Rob, that Rob was entitled to the proceeds of the catch. Eventually Rob admitted that he received the monies shown on the cheque stubs of Mr Williams. Again I bring that matter in at this time because it clearly shows knowledge by Mr Ray Williams - again a man independent of the parties - of the arrangement that 25 per cent of the catch would go to Jacko. 37. Despite a protestation by counsel for the first respondent when the case commenced that even if the deceased were a deemed worker there were issues as to whether his death arose out of or in the course of his employment, no submission was eventually made otherwise. It is clear that the deceased drowned because the vessel Night Linger capsized, foundered or merely sank on the evening of Sunday 2 April 2000. At the time the vessel sank it was in a normal fishing ground where prawns were expected. Its nets were out. The nets were found to be full of prawns. The deceased was in the steering cabin of the vessel. The evidence that was put before the Coroner and has also been put to me clearly suggests that the deceased may have been taking a nap at the time the vessel sank. The reason the vessel sank is because the nets snagged on a low sandstone outcropping on the ocean floor. Evidence before the Coroner suggests that a trawler whilst trawling can be pulled underwater in a time frame of between 15 seconds to a number of minutes dependent on a number of factors. It is clear that the vessel would have gone down very quickly and taken with it Jacko who succumbed to the perils of the sea. 38. In other words the evidence is all one way that if Jacko were a worker or a deemed worker that his death was caused by injury arising out of or in the course of his employment; his death was due to drowning whilst fishing due to a peril of the sea. 39. The first submission which has been put to me, as I understand it, is that there was no contract at all because this was a backslapping arrangement between brothers motivated by fraternal good will and family solidarity. Another submission that has been put to me is that there was no intention to create legal relations because of the background of the parties. The other submission put to me is that Jacko drowned whilst carrying out his normal business of being a fisherman. 40. The first submission really fails to distinguish between motive and intention. I have had reason to point to that issue in Harris v Cudgegong Soaring Pty Ltd (1995) 11 NSWCCR 678 which was affirmed on appeal at (1996) 13 NSWCCR 92. Mr Harris was a member of a club, the members of which were all glider enthusiasts. Indeed Mr Harris was one of the prime movers ( if I may use that expression) in the club. Owing to a matrimonial breakdown and financial difficulties Mr Harris had been bankrupted and lost both his livelihood and his home. He moved onto the club's airfield near Gulgong. Clearly much sympathy was felt for him by the other members of the club and the other directors of the club, Mr Harris himself being one of the directors. An agreement was reached between them that Mr Harris could live in a special area at the airfield known as 'the copse' and could erect a more permanent dwelling than all others could. In order to stop other people taking the same advantage for themselves Mr Harris agreed to act as "caretaker". 41. Motivation for this arrangement was clearly personal sympathy for the applicant by the members of the club. I said this at 694: I have already accepted that there was consensus ad idem and consideration. Mr Maconachie QC addressed me strenuously that there was no intention to create legal relations. He categorised the relationship between the parties as a "social" one or as an exercise of charity on the part of the members of the club. Mr Maconachie QC cited J. W. Carter & D. J. Harland, Contract Law in Australia (2nd edition) Sydney, Butterworths, 1991, 142-145, classified the arrangement as "social" and relied on the presumption that there was no intention to create legal relations. Mr O'Connor Q.C. cited A.G. Guest Chitty on Contracts (26th edition), London, Sweet & Maxwell, 1989, par 129. In particular he relied upon the statement that: The onus of proving that there was no such intention is on the party that asserts that no legal effect is intended, and the onus is a heavy one. However, that clearly relates to "ordinary commercial transactions" referred to in the preceding sentence. He did not cite to me par 132 of the same work and, in particular, the last clause thereof and the authorities supporting it, namely Heslop v Burns [1974] 1WLR 1241 and Horrocks v Fooray [1976] 1WLR 230. I have read both of those authorities but they do not really solve the problem: Is this transaction to be classified as a "social" one or as an "ordinary commercial transaction". If I had to make a choice I would prefer the latter, for reasons which become plain. However, I approach the issue on the basis that as the applicant asserts that there was a contract, he has the legal onus of proving, on the probabilities, each necessary element of the contract, including the animus contrahendi. 42. In the Court of Appeal Sheller JA with whom Cole JA concurred said at 101C: The existence of the necessary intention to create legal relations must be determined objectively. Traditionally, courts have presumed that family, social and domestic agreements are not intended to be binding (Balfour v Balfour [1919] 2 KB 571 at 578 - 579) whereas commercial arrangements are, so that even insertion in the terms of the agreement a word such as " ex gratia " may not be sufficient to negative contractural intention (Edwards v Skyways Ltd [1964] 1 All ER 494). I do not think these considerations assist in the present case. If indeed the respondent agreed with the appellant to live on the site as the caretaker in return for being allowed to construct an annexe and live in it rent-free, I can see no justification for presuming that, because the individuals concerned were friends and all members of the club, it was not intended to make a binding arrangement. Whatever the informality of the discussions, the evidence was that the respondent moved into the annexe and performed the duties of a caretaker and CFI and the appellant allowed him to live in the annexe rent-free; see Mears v Safecar Security Limited [1983] QB 54 at 77ff, Connelly v Wells (1994) 10 NSWCCR 396 at 420; D. W. Greig & J. L.R. Davis, Law of Contract, Sydney, LawBook Company, 1987 at 438. 43. Clearly, the members of the Cudgegong Soaring Pty Ltd were motivated by friendship in doing what they did. Clearly, Jacko was motivated by his fraternal love for Rob in doing what he did. The motivation however does not exclude an intention to create legal relationships. Looked at objectively, as I am required to do, this was a commercial transaction between two professional fishermen. There was an advantage for Rob. His life was in complete disarray at the time. Not only had he been estranged from his wife and pining for the company of his children, his wife was now seriously ill and thought to be dying. He was required to spend most of his time at the Grafton Base Hospital. He told me that antecedent to his wife's problem he was under psychiatric care for anxiety and depression. He said that his life "went to crap". 44. He had, in addition, financial obligations to meet. He had to keep re-paying his Esanda finance monthly, he had at least a moral obligation to Sleepy to continue to provide him with work. He had the obligation to continue to provide money for his own support and the support of his wife and children. Jacko's taking over his vessel and running it as if he were a skipper employed by Rob was clearly in Rob's financial interest. He would still have money with which to pay his debts, would still have money with which to pay his deckhand, still have money to support himself and his children. Equally, the arrangement whereby Jacko would work Rob's vessel as a skipper taking 25 per cent of the catch had a financial advantage for Jacko in the way that he had described it to his wife. He only had to pay 20 per cent of the catch, to Shorty to work as the skipper of his vessel whilst he was taking 25 per cent of Rob's catch thereby putting himself 5 per cent ahead. There was a clear motivation for Jacko to do that because his vessel had been out of commission for some time, there had been financial difficulties - major financial difficulties according to the applicant - and making some extra money in this way would assist him. Motivation may have been 'brotherly love' but clearly it was in the financial interests both Rob and Jacko that this arrangement be made. 45. I have no hesitation in finding that objectively there was the intention to create legal relations. Of course a lot was inferred. These were two expert fisherman who knew how the industry worked. Clearly there was a contract. The arrangement was that Jacko act as skipper on Rob's vessel for Rob's financial benefit - Jacko taking a wage of 25 per cent of the catch. It could be objected, of course, that this clearly was not in Rob's interest because he could have put another skipper on the vessel at 20 per cent and kept more money. However, a clear emergency had arisen where there were so many things on Rob's plate, to use the vernacular expression, that the last thing he needed to do was to worry about trying to find a suitable skipper to give him necessary instructions and no doubt exercise the supervision which most owners of vessels exercise over their skippers. He trusted his brother, who by all accounts was an excellent seaman, an excellent master of a vessel, to do the right thing by him. He did. The only thing is that in the process of so doing Jacko lost his life. 46. There was a contract. There was consideration. The consideration was worth more than $10. The contract required Jacko to work Rob's vessel. Rob did not sub-let that contract or employ a worker, that is he did not, for example, engage some other skipper to work the Night Linger at 20 per cent, keeping 5 per cent of the catch for himself and not doing any work at all, nor did he employ any worker to do the job of skipper of the Night Linger. The only person who could be thought to be a worker in that sense would be the deckhand, Sleepy, but Sleepy clearly was paid "wages" directly by Rob. All the elements are there for the deceased to be deemed a worker pursuant to Sch 1 cl 2 of the WorkPlace Injury Management and Worker's Compensation Act 1998. 47. It is really not necessary therefore to go on and to determine whether the deceased was engaged under a contract of service. However, this must be said: the evidence is all one way that the payment to skippers and deckhands of a proportion of the catch is the almost invariable practice in the fishing industry in New South Wales, throughout the Commonwealth of Australia, and elsewhere. Clearly the deckhands were all regarded as employees. Clearly owners who engaged skippers also regarded skippers as employees. There is really nothing to differentiate between the skipper and the deckhand. No submission could be entertained in law that for example the master of the Manly ferry was not employed by the Urban Transit Authority. Clearly a master of a vessel has rights arising under the law of the Admiral and under domestic law and indeed at common law as far as estuarine vessels are concerned. 48. Having said that, that is not to say that they are not employees of some other person such as the owner of the vessel in the case of the Manly Ferry, the Urban Transit Authority. Indeed Mr Willis started to re-examine Rob on that area but quickly desisted. Why he did so is clear. Although Rob said in his evidence-in-chief he had not exercised any control over Jacko, Rob said in re-examination that owners can direct a skipper as to what to do, as to where to go, that the owner can indicate what nets are to be used, the owner can direct who the deckhand is and the owner can direct when a vessel is to be taken out to sea or not. In other words there were areas in which a master, the owner of the vessel, theoretically controls and can exercise control over the skipper of a vessel. The law does not require actual control to categorise a contract as one service. It is only the legal right to direct that is important (See Zuijs v Wirth Bros Pty Ltd). I am satisfied that the owner of the vessel (in this case Rob) did have a theoretical legal right to control Jacko in the exercise of his role as skipper of the Night Linger. 49. As I have mentioned it was submitted that Jacko was merely working in his own expert trade of professional fisherman at the time that he met his death. As I understand the submission it was both to negative a contract of service and to place the deceased within the internal proviso or negative matter in Sch 1 cl 2. Whilst Mr Willis said everything that could be said in that regard I am not persuaded that that categorisation be correct. A man can have a business and also work as somebody else's employee. Here Jacko did have his own business, that of being the effective owner of the Gloria J, and running it as a commercial fishing enterprise. He employed the brothers Tooney at the relevant time to do work on his vessel in pursuit of his business. 50. However running Rob's vessel as a skipper, taking a percentage of the cash as wages from Rob, was not part of Jacko's normal business. It was not part of his business at all. It was a separate operation. There was a contract that Jacko had with Rob which can be categorised either as a contract of service or a contract within Sch 1 cl 2 and then another business in which, for example, Jacko had contracted with the brothers Tooney by which they served him as employees on his vessel to bring in a catch for him out of which he would make money. It was not part of his business, it was a separate undertaking. 51. I should add on the question whether this was a contract of service or not that it was conceded by Rob that clearly the deckhand (in this case Sleepy) was an employee and Rob conceded that if Sleepy had unfortunately gone down with the vessel he would have had no defence to a claim for worker's compensation arising out of Sleepy's death. In other words Rob acknowledged that the deckhands paid by 15 per cent of the catch are employees within the fishing industry and payment by way of catch can be clearly analogous to other forms of work such as that of shearing where the shearer is paid so much per sheep or the meat industry where there is payments of overs where, after a certain tally has been made, a percentage rate was paid to the boner or slicer per item of the kill and, for example, piece workers where people make garments perhaps at their own home as outworkers and are paid per item made. That method of payment does not negate the existence of a contract of service and clearly everyone who gave evidence in this case regarded the percentage of the catch as "wages". 52. A remaining issue, and I hope it is the only remaining issue, is whether there was a partnership between Robert Duncombe and Trudy Duncombe. I am afraid that I may myself have been guilty of raising that issue. When certain evidence had been adduced, which indicated that there was potential for Rob Duncombe to have an award entered against him, I asked counsel to make sure that the pleading of Trudy Duncombe as his partner was more than a mere matter of form because an adverse finding on an issue of liability would of course place a liability on both Rob and Trudy if there were a true partnership. Evidence was then given by Rob which might indicate that a partnership finished at the time of his estrangement from his wife although clearly now since Rob has purchased a new vessel Rob and Trudy are treated equally although a service company has intervened for reasons which one can easily understand. 53. However, there are a number of factors to be borne in mind. The application for determination nominates as the first respondent, Robert Duncombe and Trudy Duncombe. An answer was filed on their behalf in Court on 23 October 2001 (last Tuesday) Rob and Trudy plead as one entity. There is no denial of partnership. No attempt has ever been made for either of them to plead separately or to be separately represented. 54. The next factor to be borne in mind is that when the Night Linger was purchased it was purchased in the joint names of Rob and Trudy. Clearly it was insured under their joint names. In a statement made to an insurance investigator after the tragic death of Jacko, Rob had not said that the vessel was jointly owned by him and his wife. After the deceased's death Rob gave Jacqui a cheque for $800 which was drawn on the account of "R. & T. Duncombe Family Trust". Rob told me that he had instructed his accountant to take Trudy out of the "partnership" when he was estranged from his wife, but whether the accountant did so or not I do not know as he has not been called. 55. Furthermore I see grave difficulties in the submission that has been put to me about the cessation of the partnership. In law both Rob and Trudy had an interest in the vessel. That legal interest of Trudy could not be terminated by a unilateral act of Rob. Trudy would have had to consent to having her name removed from the register of the vessel, to somehow sign away any interest that she had in the ownership of the vessel. There is no evidence that that was done. Clearly there was no suggestion that any change of ownership of the vessel was ever communicated to the insurance company of the vessel. Everything points to the partnership persisting or should I say that I am not persuaded on the evidence before me that the partnership was at some stage brought to an end and then resurrected somehow when Rob and Trudy were fortunately reconciled. 56. This case commenced at 10 o'clock on Tuesday 23 October. I sat till 6.25 pm on Tuesday, 5.30 pm approximately on Wednesday. At 6.25 pm I have asked Counsel whether any further reasons for judgment are required. I am told that no such reason is required. 57. I find: 1. That on or after 17 March 2000 the late John Joseph Duncombe entered into a contract of service with Robert Duncombe and Trudy Duncombe to be the skipper of the vessel, F V Night Linger. 2. Alternatively, I find that on or after 17 March 2000 the late John Joseph Duncombe entered into a contract to perform work exceeding $10 in value not being work incidental to a trade or business regularly carried on by him in his own name or under any business or firm name with Rob and Trudy Duncombe and that said John Joseph Duncombe neither sub-let the contract nor employed any worker. 3. I find that the deceased John Joseph Duncombe died late on the evening of 2 April 2000 as a result of injury arising out of and in the course of his employment, alternatively out of and in the course of his deemed employment. 4. I find the applicant, Jacqueline Hills, and the children, Charlie Lexi Duncombe, born 5 May 1990 and Jack Duncombe born 20 August 2000 to be wholly dependent for support upon the deceased at the time of his death, the child Jack Duncombe being en ventre sa mere totally dependent from the date of birth. 5. No other person dependent for support upon the deceased at the time of his death. 6. The compensation payable by the respondents in respect of the death of the deceased as being reasonable and proportionate to the injuries to the above-named dependants to be the sum of $253,650, in addition thereto a weekly amount of $79.70 per week for Charlie Lexi Duncombe from 3 April 2000 and the sum of $79.70 per week for the child, Jack Duncombe, from 20 August 2000, those weekly amounts to continue to be paid in accordance with the provisions of the Act in respect of each of the above-named children. 58. I hereby order and award: 1. That the first respondent pay interest on the said sum of $253,650 at the rate prescribed under the Supreme Court Act from 7 November 2000 to date. 2. That in pursuance of the provisions of the Act the first respondent pay the said sum of $253,650 and interest awarded thereon to the Public Trustee forthwith after the date of this award. 3. That the first respondent pay to the applicant Jacqueline Hill the weekly amounts herein before mentioned. 4. The first respondent pay the applicant's costs. 5. I declare that the first respondent, Robert Duncombe and Trudy Duncombe, were not insured as required by the Act at the time of the deceased's death. 6. I order the second respondent to cause payment of the compensation and costs awarded against the first respondent be made out of the WorkCover Authority Fund established under s 34 of the Workplace Injury Management and Workers Compensation Act 1998. 7. I order the first respondents to reimburse the WorkCover Authority such amount or amounts as may be paid out of such Fund in respect of the compensation and costs awarded against the first respondent and in respect of the costs of the second respondent.