Murwangi Community Aboriginal Corporation v Denis Martin Caroll

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Thomas J
• Judgment Date: 05 October 2001
• Neutral Citation: [2001] NTSC 85
• Docket Number: FILE NO: LA 2 of 2000 (20009940)
• Date: 05 October 2001

[2001] NTSC 85

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Thomas J

FILE NO: LA 2 of 2000 (20009940)

Between:

Murwangi Community Aboriginal Corporation

Appellant

and

Denis Martin Caroll

Respondent

REPRESENTATION:

Counsel:

Appellant: M Grant

Respondent: C McDonald QC

Mutual Acceptance Co Ltd v Federal Commissioner of Taxation (1944) 69 CLR 389; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404; Mills v Meeking (1990) 169 CLR 214; Foresight Pty Ltd (t/a Bridgestone Tyre Services) v Maddick (1991)79 NTR 17; Rozycki v Work Social Club Katherine Inc (1997) 137 FLR 1; Loizos v Carlton & United Breweries Ltd (1994) 117 FLR 135; Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328; Connolly v Victorian Railways Commissioners [1957] VR 491; Arnott Snack Foods v Yacob (1985) 155 CLR 171; Watkins v Renata (1985) 8 FCR 65, cited

Taxation Commissioner (Cth) v Ryan (2000) 74 ALJR 471; AAT King's Tours Pty Ltd v Hughes (1994) 4 NTLR 185; Dawson v Bankers & Traders Insurance Co Ltd [1957] VR 491; Van Gervan v Fenton (1992) 175 CLR 327; Chalmers v Commonwealth (1946) 73 CLR 19; S & U Stores Ltd v Lee [1969] 1 WLR 626, referred to

Palumpa Station Pty Ltd v Fox (1999) 132 NTR 1, agreed with

Work Social Club — Katherine Inc v Rozycki (1998) 120 NTR 9, followed

Work Health Act 1986 (NT), s 3, s 49, s 49(1), s 49(2), s 64(1), s 75A, s 103G, s 103J(2), s 110

Interpretation Act 1987 (NT), s 62A

APPEAL FROM DECISION OF WORK HEALTH COURT — APPEAL AND CROSS-APPEAL

Statutory interpretation — interpretation of s 49(2) Work Health Act 1986 (NT) — purposive approach — value of allowances — benefit to worker — cost to employer — interpretation of s 49(1) Work Health Act 1986 (NT) — market rental value for worker's lodgings — construction of s 64(1) Work Health Act 1986 (NT) — costs of and incidental to proceedings — whether includes costs of attempts to come to an agreement

REASONS FOR JUDGMENT

(Delivered 5 October 2001)

1 This is an appeal from a decision of the Work Health Court delivered on 13 December 2000.

2 The appellant appeals from the orders made by the learned stipendiary magistrate on that date.

3 His Worship made further orders on 6 April 2001. The respondent cross-appeals from certain findings made on that date.

4 I shall deal firstly with the appellant's appeal from the decision delivered on 13 December 2000.

5 The grounds of appeal as set out in the notice of appeal are as follows:

‘1) The learned Magistrate erred in law in finding that the worker's normal weekly earnings were properly calculated in accordance by adding to the weekly monetary wage allowances other than those admitted into the calculation by s 49(2) of the Work Health Act.

Particulars of allowances

(a) The value of food provided by the employer, and

(b) The value of lodgings provided by the employer, and

(c) The cost of electricity provided to those lodgings.

2) In the alternative, the learned Magistrate erred in law in assessing the value of those allowances by reference to the benefit to the worker rather than the cost to the employer.

3) In the alternative, the learned Magistrate erred in law in determining that certain allowances that did not form part of the worker's terms and conditions of employment were properly taken into account in assessing the worker's normal weekly earnings within the meaning of s 49(1) of the Work Health Act.

Particulars of allowances

(a) The cost of electricity provided to the worker's lodgings.

4) In the alternative, the learned magistrate erred in law in finding that there was a market rental value for the worker's lodgings.

Particulars of error

(a) The learned magistrate made the finding in the absence of evidence that there was a market,

(b) The learned magistrate drew an inference that there was a market, which inference was not reasonably available on the evidence.’

6 At the hearing of the appeal, Mr Grant, counsel for the appellant, indicated that Ground 4 of the appeal was not pressed.

7 The appellant seeks the following orders:

‘1. That the worker's normal weekly earnings are $800 per week.

2. In the alternative, that the allowances to which the worker is entitled be calculated by reference to the cost to the employer.

3. In the alternative, that the allowances to which the worker is entitled in the calculation of his normal weekly earnings be limited to those forming part of his terms and conditions of employment.

4. That the respondent pay the appellant's costs of the application before the Work Health Court and before the Supreme Court on appeal and of these proceedings.’

8 The issue in dispute between the parties is whether certain matters were properly taken into account in calculating the worker's ‘normal weekly earnings’ for the purposes of the Work Health Act 1986 (NT). These are:

• 1) Rent

• 2) Board in the form of three meals per day.

• 3) Electricity.

9 The learned stipendiary magistrate made findings that the respondent's receipt of free board was to be valued at $85 per week and receipt of accommodation including electricity was to be valued at $70 per week. These extra values were to be included in his ‘normal weekly earnings’ for the purposes of the Act.

10 The appellant submits that unless these allowances fall within s 49(2) of the Work Health Act, any amount by way of allowance is excluded from the computation of ‘normal weekly earnings’.

11 Section 49(2) of the Work Health Act provides as follows:

‘(2) For the purposes of the definition of “normal weekly earnings” and “ordinary time rate of pay” in subsection (1), a worker's remuneration includes an over-award payment, climate allowance, district allowance, leading hand allowance, qualification allowance, shift allowance (where shift work is worked in accordance with a regular and established pattern) and service grant, but does not include any other allowance.’

12 The learned stipendiary magistrate found that these amounts were properly taken into account in calculating ‘normal weekly earnings’.

13 I now deal with each of the grounds of appeal.

1) The learned magistrate erred in law in finding that the worker's normal weekly earnings were properly calculated in accordance by adding to the weekly monetary wage allowances other than those admitted into the calculation by s 49(2) of the Work Health Act.

Particulars of allowances

• (a) The value of food provided by the employer, and

• (b) the value of lodgings provided by the employer, and

• (c) the cost of electricity provided to those lodgings.

14 The appellant's submission is that unless falling within one of the categories specified in s 49(2) of the Act, any amount by way of allowance is excluded from the computation of ‘normal weekly earnings’.

15 Mr Grant, counsel on behalf of the appellant, submits the ejusdem generis guideline to statutory interpretation has no proper application in these circumstances. On the appellant's argument this is because the common and dominant feature of the specific words under consideration is that they are allowances and the benefits which the respondent claims fall within the general words ‘any other allowance’ and therefore are excluded.

16 The argument for the appellant is that the appropriate approach to the construction of the provision is to consider each benefit in question for the purpose of determining whether it is an allowance.

17 The appellant argues that in this context an allowance is simply a payment additional to wages: Mutual Acceptance Co Ltd v Federal Commissioner of Taxation (1944) 69 CLR 389 at 396–7. The appellant says in this instance these items are not allowances within the specific inclusions of s 49(2) and accordingly cannot be taken into account in assessing ‘normal weekly earnings’.

18 I do not agree with this submission. In construing provisions of the Act, in this case s 49 of the Work Health Act, the Court must adopt a purposive approach. The most recent High Court decision in support of this principle being Taxation Commissioner (Cth) v Ryan (2000) 74 ALJR 471 at 487–488. See also Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, 320–321; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, 421–423; Mills v Meeking (1990) 169 CLR 214, 235, 242–243 and s 62A Interpretation Act 1978 (NT) which states:

‘In interpreting a provision of an Act, a construction that promotes the purpose or object underlying the Act (whether the purpose or object is expressly stated in the Act or not) is to be preferred to a construction that does not promote the purpose or object.’

19 Relevant to the purposive approach to statutory interpretation is the object, scope and purpose of the Act. The Northern Territory Court of Appeal stated the following in relation to the Work Health Act in AAT King's Tours Pty Ltd v Hughes (1994) 4 NTLR 185 at 194:

‘…. The intention appears to be to provide to the worker during disability amounts by way of compensation calculated by reference to the normal weekly earnings which he could have counted upon receiving if there had been no disability. To that extent it reflects an “income maintenance” approach.’

20 I agree with the submission by Mr McDonald QC on behalf of the respondent, that an acceptance of the appellant's submission that food, accommodation and electricity are excluded by operation of s 49(2) of the Act would be contrary to the compensatory object of the Act as articulated by the Court of Appeal where a worker, like Mr Carroll, is substantially remunerated by non-monetary benefits and which he could have counted on if there had been no disability.

21 The Act is...