Malbunka v TIO Board [2004] NTSC 30

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Malbunka v TIO Board [2004] NTSC 30






FILE NO: M4 of 2001 (20105164)

DELIVERED: 24 June 2004

HEARING DATES: 25 & 26 May 2004


MOTOR ACCIDENTS COMPENSATION - reference to Motor Accidents (Compensation) Appeal Tribunal - definition of dependent child - effect of punctuation - whether child was "primarily dependent" on the deceased for financial support - appeal dismissed.
Motor Accidents (Compensation) Act (NT) ss 4, 7 and 29.
Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177; Aafjes v Kearney (1976) 180 CLR 199; Victims Compensation Fund Corporation v Brown & Ors (2003) 201 ALR 260, applied.
Hooper v Territory Insurance Office (2002) 11 NTLR 182, considered.
Applicant: K Kilvington
Respondent: C Ford and T Ling
Applicant: CAALAS
Respondent: Cridlands
Judgment category classification: B
Judgment ID Number: Mar0408
Number of pages: 18


Malbunka v TIO Board [2004] NTSC 30
No. M4 of 2001 (20105164)







(Delivered 24 June 2004)

[1] This is an appeal by way of reference to the Motor Accidents (Compensation) Appeal Tribunal ("the Tribunal") pursuant to s 29 of the Motor Accidents (Compensation) Act ("the Act").
[2] Sherelle Malbunka ("the child") was born on 25 May 1992 to Monica Armstrong ("Monica"). The father of the child was Dixon Malbunka ("the deceased"). The deceased died on 21 April 1997 as a consequence of injuries sustained on 11 April 1997 when he was struck by a motor vehicle while attempting to cross the Stuart Highway at Alice Springs.
[3] Angelina Malbunka ("Angelina"), the sister of the deceased, is the litigation guardian of the child. On 9 December 1999 Angelina made application on behalf of the child for benefits payable under the Act as a consequence of the death of the child's father. It is common ground that the child is only entitled to benefits if it is a "dependent child" for the purposes of the Act. On 30 November 2000 a designated person determined that the child was not a dependent child for the purposes of the Act and that no benefits were payable. By Determination dated 6 March 2001, the Board of the Territory Insurance Office upheld the Determination of the designated person.
[4] Pursuant to s 29 of the Act, the applicant has referred the matter to the Tribunal constituted by a Judge of this Court. The hearing before the Tribunal is a hearing de novo. The Tribunal may make such determination as the Board could have made on the application as the Tribunal considers proper in the circumstances having regard to the intention of the Act.
[5] The child is now aged 12 years. By virtue of s 7 of the Act, as a consequence of the death of the deceased in the road accident, the child is entitled to benefits provided by the Act if, at the time of the death of the deceased, she was a "dependent child" as that expression is defined in the Act. That definition is in s 4 and is in the following terms:
"dependent child", in relation to a person, means a child of the person, or a child in relation to whom the person stands or stood in loco parentis, who is not the spouse of another person and who -
(a) has not attained the age of 16 years; or
(b) having attained that age but not having attained the age of 21 years, is a full-time student or is physically or mentally handicapped,
and is primarily dependent on the person for financial support."
[6] Two issues were the subject of submissions. The first can be disposed of briefly. Counsel for the applicant submitted that by analysing the punctation it can be discerned that the Legislature did not intend the words "and is primarily dependent on the person for financial support" to apply to a child who has not attained the age of 16 years. The submission relied entirely upon the semicolon in subparagraph (a) that appears after the word "years" and before the word "or".
[7] Counsel was unable to support his submission with any authority dealing with other legislation expressed in a similar manner. The proposed construction would mean that a child would be entitled to benefits upon the death of a parent in a road accident even if the parent had abandoned the child at birth and no contact had occurred with nor any support been provided for the child over many years since the child was born. In my opinion Parliament cannot have intended such a consequence.
[8] There is no ambiguity in the wording of the definition. When regard is had to the scheme of the Act in its entirety, it is readily apparent that the Legislature intended to compensate only those in specified categories who were "primarily dependent" on the deceased for financial support. The applicant must establish both that the child had not attained the age of 16 years and that, at the time of the death of the deceased, the child was primarily dependent on the deceased for financial support.
[9] The second issue for determination is whether the applicant has established that the child was "primarily dependent" on the deceased for financial support at the time of the deceased's death. This is a question of fact, but it is also necessary to determine what the Legislature meant by the expression "primarily dependent".
[10] The child is now aged 12 years. In 1994 when she was approximately two and a half years of age, the child was given by her mother to Angelina. It was intended that Angelina would "grow up" the child and the child has resided with Angelina continuously since 1994.
[11] It is the case for the respondent that at the time of the death of the deceased, the child was not primarily dependent upon the deceased for financial support. She was primarily, if not wholly, dependent upon Angelina.
[12] According to the affidavit of Monica, when the child was living with her the deceased gave her $100 nearly every fortnight on payday so that she could buy food and clothing for the child. The affidavit states that "sometimes he did not pay, but mostly he did pay".
[13] In her oral evidence Monica said that the deceased gave her money to look after the child "sometimes" and that on occasions he gave her less than $100. Sometimes he would not give her any money.
[14] In her affidavit of 28 April 2004, Angelina deposed that when the child came to live with her at Hermannsburg, the deceased also lived in the same home together with Clarabell Swift, Jeanette Rubuntja and Audrey Malbunka. Those persons were still living in the home when the deceased died.
[15] As to the circumstances of the relationship between the child and the deceased and payments of money by the deceased, Angelina's affidavit states as follows:
"3. Dixon used to work at the Tjuwanpa Resource Centre at Hermannsburg on the CDEP programme. When he wasn't working he would often be playing football, or sometimes cards which he liked. When he wasn't doing those things he would help look after Sherelle and would play with her and generally act like a father towards her. He always said that Sherelle was his daughter and he treated her like his daughter.
4. I think Dixon received about $300.00 per fortnight pay. Nearly every fortnight he would give me $200.00 out of his pay. This money was for his food, and also for Sherelle's food and clothes. I'm not sure how much of the $200.00 was going towards Dixon's food and cigarettes. I think (sic) about half of it would have gone towards his food and cigarettes and the other half would be used for Sherelle's needs.
5. Sometimes Dixon would not have $200.000 and would only give me $100.00. Also if Dixon won money playing cards he would give me some extra money. This money was for Sherelle.
6. Monica Armstrong, the mother of Sherelle did not give me any money for Sherelle at all.
7. I did not tell Centrelink about the money Dixon Malbunka gave me because I didn't know I was supposed to. I can't read or write and only speak English a little bit. No-one told me that I had to tell Centrelink.
8. When Dixon Malbunka passed away I was doing CPED work at Tjuwanpa Resource Centre and earning about $300.00 per fortnight. I was also getting Family Allowance for Sherelle of about $200.00 per fortnight. When Dixon passed away Sherelle was the only child that I was looking after."
[16] In her oral evidence, Angelina confirmed that she had previously also been growing up two other young children. Any money she received from the deceased was combined with her wages and funds from Centrelink for the purposes of caring and providing for all three children. In addition, she purchased cigarettes and clothing for the deceased and she provided meals for the deceased.
[17] During cross-examination, Angelina agreed that there were times when the amount she received from the deceased varied. If he had additional cash from playing cards, he would give her more.
[18] In July 1995 Angelina applied to Centrelink for Family Allowance payments in respect of the child. Her application was accepted. At the date of the deceased's death, Angelina was in receipt of the following fortnightly benefits paid by Centrelink in respect of the child:
Sole parent pension $384.70
Family payment allowance $220.90
Family payment allowance/guardian allowance $ 36.60
Family tax payment Part A $ 15.40
Family tax payment Part B $ 19.24

[19] It is agreed that in 1995 Angelina did not declare to Centrelink the receipt of any monies from the deceased. However, in 1996 she completed a review of benefits form and declared that she was receiving $50 from the deceased once a month. During cross-examination when asked about that statement and whether it was correct that she was only receiving $50 a month from the deceased for the child, after a pause and a repetition of the question, Angelina responded "Yes". She also said during cross-examination that it was correct that the deceased only gave her a bit of cash.
[20] I am satisfied that Monica and Angelina were doing their best to recall the events and, in particular, to recall the amounts and frequency of payments received from the deceased. However, they were quite uncertain about the amounts and their frequency. It is apparent that the amounts varied considerably and that, not infrequently, no payment was received. I am satisfied that the payments were irregular and of varying amounts. Sometimes little would be involved.
[21] In addition, I am satisfied the payments by the deceased were not solely for the purpose of contributing to the welfare and support of the child. The deceased was living in the same household and was being provided with cigarettes, clothing and food. Not surprisingly, Angelina did not concern herself with allocating funds received for particular purposes. The funds were all pooled. The fact of pooling does not mean that funds received from the deceased were not intended as providing some support for the child, but I am satisfied that a significant part of the funds received from the deceased were understood to be a contribution by the deceased to the costs associated with his living in the family home.
[22] The view that I have reached is based on the evidence of all the witnesses, including Jeanette Rubuntja to which I have not specifically referred. That view is reinforced by evidence concerning the deceased's consumption of alcohol.
[23] While the deceased was a keen footballer, I am satisfied that he was also a very heavy consumer of alcohol. The pathologist who conducted the post mortem examination on the body of the deceased reported that on section of the liver there was evidence of some fatty change. He also reported there was no evidence of fibrosis. However, on microscopic examination, the pathologist observed "mild fatty change and light fibrosis" of the liver.
[24] Samples of blood taken from the deceased were analysed for the presence of alcohol and gave readings of 225mg/100ml and 224mg/100ml. In lay terms, the blood alcohol level of the deceased at the time of his death was in the order of .224% - .225%.
[25] Based on the evidence of the pathologist, the Director of Forensic Pathology, Dr Terrence Sinton, has expressed the view that for a person of the deceased's age to have liver damage such as mild fatty change and light fibrosis caused by alcohol abuse, that person would need to have consumed approximately half a carton of beer per day, or a bottle of spirits per day since he was 11 or 12 years of age. Dr Sinton reported that binge drinking, for example on a weekly basis, is not likely to cause damage such as fatty change or fibrosis because of the capacity of the liver to repair itself.
[26] This evidence, coupled with the evidence of the witnesses about the deceased's drinking, has led me to the conclusion that the deceased was a very heavy and continuous drinker of alcohol. Although not determinative of the critical question, such consumption over a long period of time is relevant to an assessment of whether the deceased was likely to have regularly provided financial support for the child. As I have said, this evidence confirms the view that I had reached on consideration of the evidence of the witnesses.
[27] I am satisfied that the deceased made irregular contributions of varying amounts up to $200 to Angelina with a view to contributing to the household expenses relating to himself and the child. On rare occasions more may have been contributed. I am unable to make a precise finding as to an average monthly amount, but I am satisfied it was closer to $50.00 than $200.00. Neither Angelina nor the deceased gave consideration to identifying any particular amount intended as support for the child, but the deceased was endeavouring to make a contribution to the financial support of the child.
[28] I am satisfied that the payments by the deceased were only a small and irregular contribution to the financial support of the child. The substantial majority of the financial support of the child was provided by Angelina from her own wages and income from Centrelink.
[29] Having reached those findings, the critical question is whether those facts support the view that the child was "primarily dependent" on the deceased "for financial support".
[30] As to the meaning of "primarily dependent", the applicant submitted that an interpretation favouring the child should be adopted as the legislation is properly described as beneficial legislation. Reliance was placed upon decisions in the context of workers compensation legislation in which it has been held that a dependant of a worker could be totally dependent upon more than one person. Counsel contended that the child was primarily dependent for financial support on both Angelina and the deceased.
[31] The respondent submitted that the word "primarily" should be given its ordinary and natural meaning which involves a comparison of dependence and a conclusion as to the person on whom the child was principally dependent. The child cannot be primarily dependent on more than one person. The evidence establishes that the child was primarily dependent upon Angelina.
[32] The original provisions of the Act were enacted in 1979. As the preamble to the Act states, the Act was intended to establish a no fault compensation scheme in respect of death or injury resulting from motor vehicle accidents. Certain common law rights in relation to motor vehicle accidents were abolished. In Hooper v Territory Insurance Office (2002) 11 NTLR 182 [22], Martin CJ described the Act as beneficial in that it gives benefits to remedy the abolition of rights. His Honour said:
"It must therefore be construed beneficially, so as to give the fullest relief which the fair meaning of its language will allow … . The Act being intended to benefit a particular person or class of persons, it is preferable for any ambiguity to be resolved in favour of the intended beneficiary … ." (citations omitted).
[33] I respectfully agree with the observations of Martin CJ, but as his Honour's remarks recognised there are limitations to this principle of construction. In the context of victims' compensation legislation, this issue was discussed recently by the High Court in Victims Compensation Fund Corp v Brown (2003) 201 ALR 260. The Court emphasised that to focus on a beneficial interpretation because of the remedial objectives of a statute can tend to obscure the essential task of the court which is to determine the interpretation that the wording of the legislation requires. In a judgment with which the other four members of the Court agreed, Haydon J referred to a particular construction which might appear to be harsh in the context of remedial legislation. His Honour observed [29]:
"Even if it were considered harsh or anomalous, it could not be said that this would be fatal to the construction urged by the appellant if the text otherwise required that construction. The introduction of caps and limitations upon recovery, usually justified by reference to supposed affordability, has been a relatively common feature of Australian compensation legislation in recent times."
[34] The scheme of the Act plainly contemplates limits on the rights to compensation arising from motor vehicle accidents. For example, s 9 specifically identifies circumstances in which a person who suffers an injury in or as a result of an accident will be excluded from obtaining a benefit. Section 10(a) also excludes a person otherwise entitled to a benefit if the accident occurred while the person was using a motor vehicle without the consent of the owner of the vehicle or was using the vehicle in connection with the commission of an indictable offence.
[35] Similarly, the circumstances in which a child or parent of a person killed in a road accident is entitled to benefits are limited. In particular, children and parents of a deceased are only entitled to benefits if they are dependent children or dependent parents as defined in s 4. In respect of children and parents of a deceased, the Legislature has plainly evinced an intention to compensate or provide benefits only to those who were dependent in a relevant way upon the deceased at the time of the deceased's death.
[36] For the purposes of the Act, the child must have been dependent on the deceased for "financial" support. The court is not required to assess whether the child was dependent upon the deceased in other respects such as the provision of emotional support.
[37] The concept of dependence is not satisfied merely by establishing that the deceased contributed funds to the financial support of the child. The concept of dependence embraces reliance.
[38] In Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177, the High Court was concerned with the Worker's Compensation Act 1927 (Tas) and a claim for compensation on the basis that the applicant had been "wholly dependent" upon the earnings of the worker. In considering what amounted to total dependency, Barwick CJ observed [180]:
"But it must be decided by answering the question whether she relied for her maintenance and support as distinct from all the advantages she may have or enjoy entirely on the earnings of her husband."
[39] Gibbs J made the following observations [187 and 188]:
"The word "dependent" is not defined in the Act, although there is a definition of "dependants" which does not assist in deciding the present question. However, in its relevant sense, the adjective "dependent", as defined in the Oxford English Dictionary, means that the person to whom it is applied "depends or has to rely on something else for support, supply, or what is needed."
The word, as this definition shows, is capable of different shades of meaning. It may mean "relying for support", so that it connotes actual reliance, or "having to rely for support", so that it connotes not only reliance in fact but a need to rely for support."
[40] Later in his judgment, Gibbs J summarised the effect of the authorities in the following passage [189]:
"The effect of the authorities was summed up in a sentence by Fullagar J in Fenton v Batten [1948 VLR 422 at 423], when he said: "If the evidence establishes that the alleged "dependant" relied or relies on another as the source, wholly or in part, of his or her means of subsistence, then dependency is established". The principle underlying these authorities is that it is the actual fact of dependence or reliance on the earnings of another for support that is the test." (my emphasis).
[41] In Aafjes v Kearney (1976) 180 CLR 199, in the context of New South Wales workers' compensation legislation and whether a child of a worker had been wholly dependent upon the worker at the time of the worker's death, Gibbs J adhered to the view he expressed in Kauri Timber Co v Reeman. His Honour said [207]:
In Kauri Timber Co (Tas) Pty Ltd v Reeman, I accepted that one person is dependent on another for support if the former in fact depends on the latter for support even though he does not need to do so and could have provided some or all of his necessities from another source. I adhere to that view but it does not follow from it that a person who in fact receives some support from one person cannot properly be said to be wholly dependent on another. It is not the mere fact of receipt of support but the dependence or reliance upon another to provide it that matters. The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date; "past events and future probabilities" have to be considered." (footnotes omitted) (my emphasis).
[42] The question of fact to be determined is whether the applicant has established that the child was dependent upon the deceased for financial support. I have reached the view that the applicant has failed in this regard.
[43] There is no evidence that the child relied upon the deceased for financial support. Not only has the applicant failed to establish that fact, I am satisfied that the child was wholly dependent upon Angelina for financial support and did not look to the deceased for such support.
[44] Although not explicitly stated by Angelina, I gained the strong impression from her evidence that she did not rely upon the financial contributions from the deceased. He was an unreliable financial source who was incapable of financially supporting himself. An indication of the deceased's unreliability is provided by the evidence that Angelina purchased the deceased's cigarettes. She bought him clothing. The deceased's money was spent on alcohol and gambling. The picture emerges of a man reliant on Angelina and of a women who generously supported him knowing that he was incapable of financially supporting the child.
[45] As the applicant has failed to establish the fact of dependence, the applicant's claim and appeal must fail. Strictly speaking it is unnecessary for me to consider the meaning of the word "primarily dependent", but as submissions were directed to that issue I will indicate my views.
[46] The ordinary and natural meaning of the word "primarily" is usually equated with the word "principally". The Oxford English Dictionary (2nd Edition) defines "primarily" in the following terms:
"1. In the first order in time or temporal sequence; at first, in the first instance, firstly; originally.
2. With reference to other than temporal order: in the first place, first of all, pre-eminently, chiefly, principally; essentially."
[47] The Macquarie Dictionary defines primarily as meaning "in the first place; chiefly; principally".
[48] Superficially there is some attraction in the submission of the respondent that the word "primarily" requires a comparison between sources of financial support and a conclusion as to which single source is the primary or principal source. By way of analogy, ordinarily it might be thought that if a person is wholly dependent upon another person for financial support, that fact would exclude partial or complete dependence upon a third person. However, in the context of workers compensation legislation, numerous authorities including Aafjes v Kearney have held that a dependant may be wholly dependent upon more than one person. Perhaps the answer is found in the remarks of Mason J in Aafjes v Kearney [212]:
"The dominating consideration here and in the United Kingdom is a strong disinclination, founded on common sense, to attribute to the Legislature an intention to deprive an applicant of a claim based on total dependency for support where a legal obligation to provide that support exists which has not been abandoned, merely because the applicant is in receipt of benefits from others, whether proceeding from charity or some other motive."
[49] The respondent relied upon the unreported decision of Wright J in Schmidt v Piggott [1999] TASSC 137. His Honour was concerned with the definition of "de facto spouse" in the Testators Family Maintenance Act 1912 (Tas). The definition required that the person cohabitate with another person of the opposite sex and be a person "who was principally dependent on that other person for financial support at the time of the death of that other person". Of that definition, Wright J said [11]:
"I take this provision to mean that the applicant must be more dependent upon the deceased for financial support than she is upon either herself or other people."
[50] It appears that Wright J was not referred to Aafjes v Kearney and other like authorities in the context of workers compensation legislation. In addition, as Barwick CJ noted in Kauri Timber Co v Reeman [181]:
"Maintenance and support for this purpose will not be the same concept as is relevant in legislation as to the testator's family maintenance or in matrimonial causes."
[51] In the context of the scheme introduced by the Act, in my opinion the Legislature did not contemplate a strict comparison and limitation to a single source of financial support as contended by the respondent. It is not difficult to envisage a circumstance where the principal source of financial support comes jointly from two parents, but other minor financial support is also provided by a third person. In such circumstances it might reasonably be said that the child is primarily dependent upon both parents for financial support. If the respondent's contention is correct, if a child relied upon both parents equally but a court found one parent's contribution to the financial support was greater than the other, albeit by a very small amount, upon the death of the parent whose contribution was the lesser, the child would be deprived of the benefits under the Act. Such an interpretation does not sit well with the scheme of the Act and the remedial nature of it.
[52] In principle, the primary source of financial support is not necessarily limited to a single source. Where there is more than one contributor to financial support, whether it can reasonably be said that the dependant is primarily dependent upon one or more than one source will be a question of degree to be determined according to the circumstances of the particular case.
[53] In the matter under consideration, if it could be said that the child was dependent upon the deceased for financial support, in my opinion the evidence does not support a conclusion that the child was primarily dependent upon the deceased for financial support.
[54] The appeal is dismissed.