Murwangi Community Aboriginal Corporation v Caroll [2001] NTSC 85

PARTIES:	MURWANGI COMMUNITY ABORIGINAL CORPORATION

	v

	DENIS MARTIN CAROLL

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO:	LA 2 of 2000 (20009940)

DELIVERED:	5 October 2001, Darwin

HEARING DATES:	1 June 2001

JUDGMENT OF:	THOMAS J

CATCHWORDS:

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

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

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; Connally 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

REPRESENTATION:

Counsel:
	Appellant:	M Grant
	Respondent:	C McDonald QC

Solicitors:
	Appellant:	Hunt & Hunt
	Respondent:	Ward Keller

Judgment category classification:	C
Judgment ID Number:	tho200124
Number of pages:	32

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

Murwangi Community Aboriginal Corporation v Caroll [2001] NTSC 85
No. LA 2 of 2000 (20009940)

	BETWEEN:

	MURWANGI COMMUNITY ABORIGINAL CORPORATION
	Appellant

	AND:

	DENIS MARTIN CAROLL
	Respondent

CORAM:	THOMAS J

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 beneficial in character and should be construed liberally in favour of the worker (Foresight Pty Ltd (t/a Bridgestone Tyre Services) v Maddick (1991) 79 NTR 17, 24; Rozycki v Work Social Club Katherine Inc (1997) 137 FLR 1, 13; Loizos v Carlton & United Breweries Ltd (1994) 117 FLR 135, 136 and (1994) 94 NTR 31, 33; Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328, 335).
[22]	With respect I agree with the analysis of Bailey J in Palumpa Station Pty Ltd v Fox (1999) 132 NTR 1 at 5 – 6:
“I am satisfied that Mr Grant is correct in his submission that section 49(2) creates a class by identifying specific allowances which are to be included in a worker’s remuneration (for the purpose of calculating ‘normal weekly earnings’) in conjunction with the exclusion of ‘any other allowance’.  It follows that the latter words are to be construed  ejusdem-generis with those allowances that have been expressly identified in section 49(2).
In R v Regos and Morgan (1947) 74 CLR 613 at 623-624, Latham CJ explained the ejusdem-generis rule in the following terms:
‘The ejusdem-generis rule is sometimes stated in very broad terms as, for example, by Lord Campbell in R v Edmundson (1859) 28 LJMC 213 at 215 – ‘Where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified.’  But in more recent cases a very different view has been taken of the rules as for example, in Anderson v Anderson [1895] 1 QB 749, where it was said in the Court of Appeal that ‘prima facie general words are to be taken in the larger sense, unless you can find that in the particular case the true construction of the instrument requires you to conclude that they are intended to be used in a sense limited to things ejusdem generis with those which have been specifically mentioned before’ [1985] 1 QB at 753.  The ejusdem-generis rule is a rule of construction only; that is, it is designed to assist in ascertaining the intention of Parliament in the case of a statute and of the parties to a document in other cases (Thorman v Dowgate Steamship Co Ltd [1910] 1 KB 410 at 419).
The rule is that general words may be restricted to the same genus as the specific words that precede them (Thames & Mersey Marine Insurance Co Ltd v Hamilton, Fraser & Co (1887) 12 App Cas 484, at 490).  Before the rule can be applied it is obviously necessary to identify some genus which comprehends the specific cases for which provision is made.  In Tillmanns & Co. v S.S. Knutsford Ltd [1908] 2 KB 385, it was pointed out that ‘Unless you can find a category there is no room for the application of the ejusdem-generis doctrine’ - per Farwell LJ [1908] 2 KB at 403: see also per Vaughan Williams LJ [1908] 2 KB at 395 and per Kennedy LJ [1908] 2KB at 409.  In Mudie & Co v Strick (1909) 100 LT 701, Pickford J said: ‘You have to see whether you can constitute a genus of the particular words, and, if you can, then unless there is some indication to the contrary, you must construe the general words as having relation to that genus.  If you cannot do this, then … you must read all the particular words separately, and take the general words separately also’ (1909) 100 LT at 703.  In S.S. Magnhild v McIntyre Bros & Co [1920] 3 KB 321, there is a full discussion of the rule by McCardie J in which it is clearly shown that where it is sought to apply the rule to a case where an enumeration of specific things is followed by general words it must appear that the specific things ‘possess some common and dominant feature’ so that they can be described as constituting a genus distinguished by that feature.’
In the case of section 49(2) of the Act, the genus constituted by the provision is that of monetary allowances.  I am satisfied that the Legislature intended to exclude from calculation of a worker’s normal weekly earnings only such allowances paid to a worker (other than those expressly referred to in the provision).  Such a construction accords with the ordinary and usual meaning of the word ‘allowance’ and is consistent with a broad and liberal interpretation of the Act in favour of the worker.”
[23]	I would dismiss this ground of appeal.
Ground 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.
[24]	Counsel for the appellant submits that if the court finds against the appellant on Ground 1, then any non-monetary benefit taken into account for the purpose of “normal weekly earnings” are properly valued at cost to the employer rather than advantage to the worker.
[25]	It is the appellant’s submission that on this basis no component is properly allowable in respect of rent.  This is because on the evidence of Mr Gore, the cost to the employer of providing accommodation was nil.  The report from McGees, National Property Consultants dated 9 November 2000 (Exhibit 1) states in the final paragraph:
“Cost to Owner
From the photographs provided I estimate the building to be 20 to 30 years old.  It is apparent that minimal if any maintenance has been undertaken on the building.  On this basis the cost to the owner at present would be minimal.  The capital cost of the building would have been recovered/depreciated already.  Given that no on going maintenance is performed on it the annual cost to the owner would be nil.”
[26]	The appellant further submits there was no evidence to contradict the evidence of Mr Joe Wilson who stated that the cost of the meat to the employer was negligible as it was rarely sold.  Further, the evidence as to electricity was that the generator ran throughout the day to service the needs of the whole station and that provision of such electricity to the worker did not result in any additional cost to the employer.  Accordingly, on the appellant’s argument no component is properly payable in respect of electricity.
[27]	In the alternative, the appellant argues; the test is not the savings to the worker, which would be the market value, but the value of board, lodgings and electricity to him - Dawson v Bankers & Traders Insurance Co Ltd [1957] VR 491 Sholl J at 496 – 497 discussed the meaning of the word “remuneration”.  Sholl J referred to the guidance he obtained from the Full Court decision in Connally v Victorian Railways Commissioners [1957] VR 466.  Sholl J then stated:
“… That case concerned the question whether a contractor supplying sleepers to the railways was entitled to have deducted from the total moneys payable to him in a year under his contract certain sums which he had to pay out, in earning the contract sum, for cartage, tools, and repairs, but as to which his contract with the railways made no separate provision.  Unless they could be deducted, he admittedly fell outside the Workers Compensation Act, and it was held that they could not be.  The Court considered the meaning of ‘remuneration’.  In a joint judgment, Herring, C.J., and Gavan Duffy, J., adopted what they considered that natural meaning – ‘pay for services rendered or work done’ – and later added, at p. 472: ‘In our judgment that natural meaning is the full sum for which the worker is engaged to do the work in question and does not mean the sum found by balancing his gains and losses or by deducting from the moneys received by him for his services the expenses he had to incur for the purpose of putting himself in a condition to earn his remuneration.’  Hudson, J.’s judgment was to a similar effect.
   Board and lodging are properly included in remuneration, - at any rate where they are not provided solely for the benefit of the employer, Dothie v. Robert Macandrew and Co., supra; Skailes v. Blue Anchor Line Ltd., supra.  And they are to be included, not at a figure representing the actual saving to the employee which they represent, but at their value to him, Dothie’s Case.  In calculating that value, the test is not necessarily the cost to the employer.  In Dothie’s Case, where the Court of Appeal sent the matter back to the arbitrator to assess the amount, Buckley, L.J., [1908] 1 K.B. 803, at pp. 810-11, said this: ‘… in the present case there is nothing to shew that the value to the workman was not at least equal to the cost to the employer – probably it was more, if there was any difference.  The victuals for the ship were obtained in the gross for the supply of the whole ship, upon what I may call wholesale terms, and if the man had to buy his own food in smaller quantities presumably he would have paid more.  The facts seem to be that there was reasonable board, according to the nature of the employment, supplied at a cost which, so far as appears, was certainly not in excess of what would have been the cost to the workman – probably less than that.  In that state of things, I think the proper measure of value is at least the cost to the employer.’
   It will be noticed that the learned judge says ‘at least’, and does not exclude any other test which can more accurately give the value to the employee.”
[28]	It is the submission on behalf of the appellant that the value to the worker, in the sense adverted to by Sholl J, is something less than market value and properly takes into account:
“(1)	the premises were modest to rough;
  (2)	the worker had use of only one bedroom, when both valuations were done on the basis of a two-bedroom dwelling;
  (3)	there was no dedicated kitchen;
  (4)	the price paid by the worker for living in the locality and receiving the free lodgings, meat and electricity was social dislocation; and
  (5)	the fact that one of the reasons the wages paid on the station were relatively high was because the accommodation and amenities were of poor standard.”
[29]	With respect to this ground of appeal, I prefer the submission by Mr McDonald QC, that in terms of the compensatory object of the Act, a cost to employer approach to valuation is neither a reasonable nor a fair assessment of the value of the remuneration.  I accept the statement on behalf of the respondent, that in the circumstances of this case the cost to the employer could be nil or negligible, yet its value in attracting workers like Mr Denis Caroll to the remote location is significant and needs to be addressed in assessing compensation.
[30]	In Van Gervan v Fenton (1992) 175 CLR 327 Mason CJ, Toohey and McHugh JJ at 333:
“Income forgone is not the test of reasonable value
   Once it is recognized that it is the need for the services which gives the plaintiff the right to an award of damages, it follows that the damages which he or she receives are not determined by reference to the actual cost to the plaintiff of having them provided or by reference to the income forgone by the provider of the services.  As Stephen J. pointed out in Griffiths, the principle laid down in Donnelly ‘is concerned not with what outlays of money the plaintiff will in fact incur as a consequence of his injuries but with the objective monetary ‘value’ of his loss’.  Because the market cost of services is ordinarily the reasonable and objective value of the need for those services, the market cost, as a general rule, is the amount which the defendant must pay as damages.  But in some cases the market cost may be too high to be the reasonable value of the services.  Where, for example, the cost of providing the services at a remote location is much greater than providing those services in a densely populated area, it might be necessary to discount the market cost or value of the services needed by the plaintiff on the ground that the market cost or value was unreasonable in the circumstances.  In other cases, there may be so little competition to provide the services that, judged objectively, the market cost is not the reasonable value of the services.  No doubt the circumstances of particular plaintiffs may reveal other cases where the market cost of the services provided is not the reasonable value of the services reasonably needed.  But the case will be rare indeed where the income forgone by the care provider is ever an appropriate guide to the fair value of the services required by the injured person.  Whether the income forgone is below or above or equivalent to the market cost, the income forgone will usually be irrelevant, for the market cost will ordinarily represent the objective value of the services.  Where there is no relevant market for the services or the market cost is objectively too high to be reasonable, the income forgone may be a starting point in cases where the nature and duration of the services provided and the previous work and hours of the care provider are roughly comparable, but such cases are likely to be rare.”
[31]	I agree with the argument on behalf of the respondent that the cost to the employer does not represent a fair assessment of non-monetary benefits to the worker.  Mr Caroll’s salary part of his remuneration would have been considerably higher if food, accommodation and power had not been provided as part of this remuneration.
[32]	Mr McDonald QC on behalf of the respondent provided a useful analogy with respect to the measure of damages in cases of wrongful dismissal.
[33]	In McGregor on Damages Fourteenth Edition at pp 635-636 the author states that “The measure of damages for wrongful dismissal is prima facie the amount that the plaintiff would have earned had the employment continued according to contract …” subject to certain deductions which are not relevant for the purpose of the matter before this Court.  The author of the text then goes on to state:
“(a) The amount the employee would have earned under the contract.
Basically, the amount that the plaintiff would have earned under the contract is the salary or the wages which the defendant had agreed to pay.  In addition there may be benefits in kind, the value of which must also be taken into account, such as a rent-free residence, board and lodging, luncheon vouchers and the like, and also benefits under pension schemes.  ….”
[34]	In his reasons for decision delivered on 13 December 2000, the learned stipendiary magistrate made certain findings with respect to the issue of the allowances, rent, food and electricity.  In discussing the evidence given by the worker, the learned stipendiary magistrate stated at par 11:
“He told me that his accommodation was comfortable, with fly screens, adequate windows and doors, lighting and electricity, water and ceiling fans.  I was told that the accommodation was furnished including with TV, washing machine, air conditioners and a kitchen complex was nearby.  There is, no doubt that the accommodation and furnishings were modest, as was the cost, standard and amount of food rations.  However, in my view, they could not be described as sub-standard or poor.  Parts of the old manager’s house were decrepit but he did not use (and did not have to use) those parts.  The parts he used were water proof and not as old as the unused parts.  I accept the Worker’s evidence in relation to his accommodation and food rations.  He agreed that part of the ‘old manager’s residence was a ‘demountable’, and photos in this regard were exhibited.”
[35]	In par 15 and par 16 his Worship explains the reasons why he accepts the evidence of the employer’s manager Mr Wilson, in preference to the evidence of the worker Mr Caroll, where there is a conflict on such evidence.
[36]	In par 17 of his reasons for decision the learned stipendiary magistrate refers to evidence given by Mr Wilson that the conditions of employment discussed with Mr Caroll were that he be provided with basic food items and that this cost the employer about $50 per week plus meat.
[37]	At par 29 and par 30, the learned stipendiary magistrate made the following findings:
“Exhibit 3 (letter from Paspaley Pearls) is evidence of a standard of fare higher than that offered to the Worker viz, the meals are cooked for Employees (whereas I find the Worker had to cook his own), snacks are provided (whereas I find that the Worker had to provide snacks over and above three meals a day himself).  Mr Wilson’s evidence is to the effect that food cost[s] approximately $50 per week plus meat; the meat was of high quality although of negligible value to the Employer.  I am of the view that the meat formed a substantial part of rations and having regard to the meagre evidence as to value (which includes Exhibit 3 to some extent), I find that the value of meat would have approximated $5.00 per day viz. $35.00 per week.  I note that the Employer’s ‘negligible’ costs in relation to meat would have included the labour necessary to butcher and prepare same.  Accordingly, I find the value of entitlement to free board as $85.00 per week.
As regards the value of lodgings, I find that such value includes the cost of electricity power to the premises.  I have already stated that the evidence, in my view revealed that the Worker’s residence was in good but modest condition, adequately furnished and affording relatively comfortable lodgings.  I accept the submission that the lodgings are not the equivalent of public service rental accommodation in larger centres, (something the ‘expert’ called by the Worker relied upon).  Mr Copland’s ‘expert’ opinion (which was inclusive of electricity (transcript p.77), and furniture) has the value of accommodation at $100.00 per week.  Mr Gore (the ‘expert’ called by the Employer) had the value of accommodation stretching to $60.00 per week excluding electricity and furniture.  Given the evidence that Murwangi Station is in one of the most remote areas in the Northern Territory and therefore, Australia, in my view efforts (which were properly made) to estimate value according to market forces results in some inexactitude.  In my view, taking the highest figure opinioned by Mr Gore, $60.00 and including electricity (which Mr McDonald’s instructing solicitor calculated having regard to Exhibit 2) at $9.90 per week, (see written submissions) I find that a fair value for lodging is $70.00 per week.  I have considered whether to increase this figure to allow for the few bits of furniture.  Mr Copland allowed $10.00 per week and Mr Gore allowed nothing.  In my view the figure of $70.00 per week is fair and reasonable for lodgings and I do not propose to increase it any further.”
[38]	His Worship then proceeded to find that both the figure of $85 per week for food and $70 per week for lodging (which included the cost of electricity) ought to be included in the worker’s “normal weekly earnings”.
[39]	With respect to the amounts awarded by the learned stipendiary magistrate for rent, food and electricity, I am satisfied there was evidence to support the amount awarded including valuation evidence and that no error on the part of the learned stipendiary magistrate in calculating these amounts has been demonstrated.
[40]	I would dismiss this ground of appeal.
Ground 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.
[41]	The appellant submits that it was the evidence from both Mr Wilson and the worker that electricity was not expressly included as an allowance in that employment.  Accordingly, on the appellant’s argument it could not form part of the worker’s remuneration as it was not included as part of the contract of employment.  Reference was made to the decision Chalmers v Commonwealth (1946) 73 CLR 19 at 37; S & U Stores Ltd v Lee [1969] 1 WLR 626.
[42]	The appellant points to the absurdity of the situation if there is no distinction between benefits conferred by the contract of employment and collateral benefits flowing from the mere fact of employment.  The example given of such absurdity was the office worker claiming to be entitled to the cost of electricity for airconditioning the office in which she works or boiling water for tea or coffee as part of her normal weekly earnings within s 49(1) of the Act.
[43]	I do not consider this example assists the appellant.  There is a distinction between provision of electricity in the workplace to enable workers to do their work and provision of electricity to a private residence solely for personal use out of normal working hours.
[44]	There was no evidence the worker ever contributed or was asked to contribute to the cost of providing his private accommodation with electricity.  The learned stipendiary magistrate found there was an implicit agreement to provide electricity.  At par 14 of his reason’s for judgment, the learned stipendiary magistrate stated:
“As of 12 March 1998 (the time of injury) his weekly cash wages were $700 (gross).  Apparently the provision of electricity was never specifically mentioned in talks between Mr Wilson and the worker in relation to terms and conditions of employment.  In my view the provision of electricity for normal household purposes was implicitly in the agreement by the Employer to provide board and accommodation.  The Worker agreed that he regularly supplemented the standard fare offered by the Employer in relation to three meals a day.  He agreed that he was given money for his annual airline entitlement rather than a ticket.  He also agreed in relation to this entitlement that on occasion he was picked up at Darwin Airport and driven to the station (rather than flown) and also driven from the station to the Darwin Airport.”
[45]	The further finding on this issue, in par 30 of his Worship’s reasons for decision, has already been referred to.
[46]	I do not consider any error has been disclosed in the findings of the learned stipendiary magistrate on the issue of electricity.  It was open to him to find that the provision of electricity was a non-monetary component of the worker’s accommodation allowance 
[47]	I would dismiss this ground of appeal.
Ground 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.
[48]	Mr Grant, counsel for the appellant, indicated that the appellant did not intend to proceed with this ground of appeal.
[49]	Accordingly, this ground of appeal is dismissed.
[50]	For the reasons stated, the appellant’s appeal is dismissed.
[51]	I now turn to consider the respondent’s cross-appeal.  The respondent’s cross-appeal from the following findings forming part of the decision of Mr Cavenagh SM:
“(1)	that the respondent was entitled after 31 March 2000 to weekly benefits to Section 65 of the Work Health Act but not pursuant to Section 64 of the Act.
  (2)	That the period in which payments to the respondent pursuant to Section 64 of the Work Health Act were payable had already expired by 31 March 2000.
  (3)	That the value of the free lodgings provided to the Respondent by the appellant included the value of electricity provided to those lodgings and no further value for that electricity was to be allowed in the assessment of normal weekly earnings.
  (4)	That the respondent’s costs of and incidentals to the proceeding before the Work Health Court do not include his costs of his attempts to come to an agreement with the employer about the matter regarding the subject of the said proceeding, notwithstanding Section 110 of the Work Health Act.”
[52]	The orders sought by the respondent are:
“(1)	That the Respondent is entitled to weekly benefits pursuant to Section 64(1) of the Work Health Act on and from 11 May 2000 and to benefits pursuant to Section 65 of the Act from the expiry of that 26 weeks period and continuing.
  (2)	That the value to the Respondent of free electricity provided by the Appellant to the Respondent’s lodgings at the workplace should be included in the Respondent’s normal weekly earnings in an additional sum of $9.90 per week.
  (3)	The value of the Respondent’s normal weekly earnings as at the date of his injury on 12 March 1998 was $964.90 gross.
  (4)	That the Order for costs in Order 6 made by Magistrate Cavanagh on 8 February 2001 is enlarged to include the Respondent’s costs of and incidental to his attempts to come to an agreement with the Appellant concerning the matter the subject of the proceeding.
(5)	That the Appellant pay the Respondent’s costs of and incidental to this Appeal, certified fit for senior counsel.”
[53]	The cross-appeal in respect of finding (1) and (2) in par [51], go to the proper construction of s 64(1) of the Work Health Act which states:
“(1)	Subject to sections 65A and 66, a worker who is totally or partially incapacitated for work as the result of an injury shall be paid, in addition to any other compensation to which under this Part he or she is entitled, compensation equal to the difference between what he or she actually earned in employment during a week and his or her normal weekly earnings immediately before the date on which he or she first became entitled to compensation, in respect of any period during which the total period, or aggregate of the periods, of his or her total or partial incapacity, as the case may be, arising out of or materially contributed to by the same injury does not exceed 26 weeks.”
[54]	The worker in this case sustained injury on or about 12 March 1998 whilst working at the station.  As a result of this injury the worker was partially incapacitated for work from 12 March 1998 to 31 March 2000 when he was dismissed from employment.  The worker continued to be partially incapacitated for work from 1 April 2000 to the present date and continuing.  Although partially incapacitated for work as from 12 March 1998, the worker in fact continued to work.  He did not take time off which was productive of economic loss.
[55]	In his reasons for decision the learned stipendiary magistrate stated at par 6 and par 7:
“In my view, it is significant that the Worker not only claims that the injury (which resulted in the partial incapacity) occurred on or about 12 March 1998, but also partial incapacity resulted from that date to 31 March 2000.  (Paragraph 6 of the Statement of Claim) and from 1 April 2000 to date and continuing (paragraph 22).  Both these periods of partial incapacity have been admitted by the Employer  Obviously, the two periods are one unbroken period of time.
The Worker gave evidence in accordance with my findings as aforesaid.  He stated he was 50 years of age and currently worked as a taxi driver in Darwin.  I pause to note that it was agreed before me that this was the most profitable occupation available to the Worker having regard to his incapacity.  He earned less in this occupation than that which he was earning with the Employer.”
[56]	At par 25 of his reasons for decision, the learned stipendiary magistrate stated that Mr Caroll:
“…. had limited ability to undertake paid work as from 12 March 1998.  That is to say, he was partially incapacitated.  This was because of an injury occurring on 12 March 1998.  I find, as a result of the efforts of both the Worker and the Employer, that the incapacity did not result in any economic disadvantage until after termination of employment on 31 March 2000.”
[57]	At par 28 of his reasons, the learned stipendiary magistrate found that incapacity began when the worker sustained the injury.  His Worship found the worker was entitled only to s 65 payments after 31 March 2000.  He further found the period in which s 64 payments were payable had already expired (26 weeks after incapacity for paid work which incapacity commenced on 12 March 1998).
[58]	Section 64 of the Work Health Act was considered by the Court of Appeal in Work Social Club – Katherine Inc v Rozycki (1998) 120 NTR 9.  The facts in the matter before the Court of Appeal are similar to the facts found in this matter and can be summarised as follows:
[59]	The worker injured her lower back on 3 June 1989 when she lifted a bucket full of detergent while at work at her employer’s premises.  The Work Health Court found that the pain was not totally disabling up to 6 April 1992 and that the pain did not result in incapacity that was productive of financial loss.  His Worship said “whatever the incapacity she had it was suppressed to such a degree or she ceased to be troubled by it to such a degree that it was not productive of any economic loss”.  This is similar to the situation of Mr Caroll who continued to work from the date of his injury on 12 March 1998 to 31 March 2000, when he was dismissed.  In Work Social Club – Katherine Inc v Rozycki (supra), Mildren J with whom Gallop ACJ and Bailey J agreed, noted at p 14 that Martin CJ held at the first instance appeal, inter alia, that the appellant employer was liable to pay weekly benefits to the worker pursuant to s 64(1) of the Act for the period 6 April 1992 to 5 October 1992.  At pp 17 - 18 Mildren J stated:
“Mr Southwood submitted that this was consistent with the approach in Arnotts Snack Products, where the High Court held that entitlement to compensation depended not solely upon proof of partial incapacity, but also on ‘loss of earning power’.  This is supported by the language employed by s 65, but there is a difference between that provision and s 64(1) which makes it much easier for the worker to claim full compensation for the first period of periods of incapacity which total 26 weeks in all, pursuant to s 64(1), than thereafter pursuant to s 65(1).  In the former case, the worker is entitled to recover compensation ‘equal to the difference between what he actually earned in employment during a week and his normal weekly earnings’.  There is no occasion to consider what he is reasonably capable of earning in a week in work he is capable of undertaking if he were to engage in the most profitable employment, if any, reasonably available to him (s 65(2)) during the first 26 week period.  That only arises thereafter, because s 65(2) begins with the words ‘for the purposes of this section …’.  Therefore, all that the worker has to show to be entitled to compensation under s 64(1) is that the worker is totally or partially incapacitated for work as the result of the injury, in the sense explained in Arnotts Snack Products, and the worker is entitled to the difference between the worker’s ‘normal weekly earning’ and what the worker actually earned during the first 26 weeks of incapacity.  If in fact the worker earned nothing, the worker is entitled to receive the full amount of the worker’s ‘normal weekly earnings’, so long as the worker is totally or partially incapacitated for work as the result of the injury, ie the incapacity arises out of or is contributed to by the injury, during the relevant period, in the sense explained in Arnotts Snack Products.  This is of course subject to any argument pleaded and proven by the employer that the worker has failed to mitigate her loss: Fazlic v Milingimbi Community Inc (1982) 150 CLR 345 at 353-4; 38 ALR 424.  But this was not raised in this case.
In my opinion, the Chief Justice was correct to conclude that the worker had established her right to compensation for the first 26 weeks after 6 April 1992, pursuant to s 64(1).
The learned Magistrate had concluded in his reasons dated 20 March 1995 that the worker was partially incapacitated as a result of the injury.  The learned Chief Justice correctly interpreted the Work Health Court’s findings as amounting to a finding that after 6 April 1992, her incapacity was productive of financial loss.  The worker had also established that after 6 April 1992 she actually earned nothing.  Indeed, she had proven this in respect of earlier periods as well, but there was no appeal to this Court that the Work Health Court or Martin CJ had wrongly failed to award her compensation in respect of any earlier period.  On the basis of these findings the worker was clearly entitled to an award of compensation under s 64(1).”
[60]	This was in effect a finding that compensation should be awarded under s 64(1) of the Work Health Act despite the fact that more than 26 weeks had expired after the injury which caused the partial incapacity.
[61]	This finding accords with the principles governing construction of workers compensation legislation which is “to provide financial compensation to workers incapacitated from work place injuries” and the adoption of an approach in favour of the worker where there is an ambiguity.
[62]	I consider the magistrate was in error in failing to follow the decision in Work Social Club – Katherine Inc v Rozycki (supra).  His Worship distinguished the Court of Appeal decision on the basis that in Rozycki there was no finding of incapacity until after the worker left employment and well after the date of injury.  I do not consider this distinction alters the worker’s right to payments under s 64(1).
[63]	The learned stipendiary magistrate stated at par 24 of his reasons for decision:
“In my view to read Section 64 in the matter contended by Mr McDonald QC would provide no or little incentive for an Employer to keep in work a partially incapacitated Worker.  I cannot imagine that the legislature intended this.”
[64]	Section 3 of the Work Health Act defines “incapacity” as meaning “an inability or limited ability to undertake paid work because of an injury”.
[65]	I agree with the submission made by Mr McDonald QC that it is only when the partial incapacity is productive of actual financial loss that the compensation payable under  s 64(1) commences.  I consider this interpretation is more consistent with the purpose or policy of the Work Health Act, the scheme of which establishes that compensation should be paid to injured workers at their normal rate of pay when injury is productive of financial loss, for the first 26 weeks of incapacity – Commissioner of Taxation (Cth) v Ryan (supra) at 488 par [82]:
“Secondly, and parallel to the legislative changes just described, have been moves of the common law itself to adopt a more purposive approach to the task of statutory construction.  The turning point in this regard may have been Fothergill v Monarch Airlines Ltd.  In Australia, an important exposition of the new approach for the courts was given by McHugh JA in Kingston v Keprose Pty Ltd.  Although dissenting as to the result, his Honour’s treatment of the judicial function in statutory construction has proved most influential.  It has been approved in this Court in Bropho v Western Australia.  In the last decade, there have been numerous cases in which members of this Court, referring to the statutory and common law developments, have insisted that the proper approach to the construction of federal legislation is that which advances and does not frustrate or defeat the ascertained purpose of the legislature, to the full extent permitted by the language which the Parliament has chosen.  Even to the point of reading words into legislation in proper cases, courts will now endeavour, more wholeheartedly than in the past, to carry into effect an apparent legislative purpose.  Examples of this approach abound in Australia, England and elsewhere.  This Court should not return to the dark days of literalism.”  (footnotes omitted)
[66]	Mr Grant, counsel for the respondent on the cross-appeal, submits that there is nothing in s 64 of the Work Health Act, or arising on general principles to compel the view that the 26 week period is limited to those periods where the incapacity is productive of actual financial loss.  On Mr Grant’s argument, the provision is clearly and unambiguously to the effect that compensation is only payable in accordance with the s 64 formula during the first 26 weeks of incapacity simpliciter.
[67]	Counsel for the respondent on the cross-appeal, maintains that to hold otherwise the Court would be required to read the section as providing relevantly “... during which the total period, or aggregate of the periods, of his or her total or partial incapacity WHICH RESULTED IN ACTUAL ECONOMIC LOSS … does not exceed 26 weeks.”  He further submits that such a reading is not permissible in the interpretative exercise.
[68]	I reject this submission.  I consider the purposive approach to statutory construction is to recognise that it is when there is an actual economic loss that payment of compensation is needed and becomes payable.
[69]	I accept that from the pleadings and the findings of the learned stipendiary magistrate, that the employer had put in place certain measures to alleviate the worker’s inability.  These were:
1.	It modified the worker’s duties such that he was not required to perform heavier duties or lift significant weight; and
2.	It designated certain other workers to assist the worker in the discharge of his duties.
[70]	The fact that the worker remained in employment from the date of his injury on 12 March 1998 to the date of his dismissal on 31 March 2000, is not inconsistent with a partial incapacity (Arnott Snack Foods v Yacob (1985) 155 CLR 171; Watkins v Renata (1985) 8 FCR 65 at 68 – 69; Foresight Pty Ltd (t/a Bridgestone Tyre Services) v Maddick (supra) at 19).
[71]	Mr Grant, on behalf of the respondent to the cross-appeal, argues that the distinguishing factor about Rozycki (supra) is that the worker in that matter was not diagnosed as having an incapacity until 6 April 1992, almost three years after the date of the injury on 3 June 1989.  There was no evidence to support a finding of incapacity before that time.  Whereas in this matter, the incapacity dated from the date of the injury on 12 March 1998.
[72]	I do not consider that distinction to be relevant to the determination of the date from which compensation is payable.
[73]	Some workers who are employed during their period of incapacity from the date of the injury may never need to make a claim for compensation.  The purpose of s 64(1) must be that compensation is payable for a period of 26 weeks from the date the worker is in need of such compensation because of their economic loss and can demonstrate an entitlement to such compensation.
[74]	Mr Grant, on behalf of the employer, contends that such an interpretation penalises the employer who has fulfilled its obligations in respect of rehabilitation of the worker under s 75A of the Act and continues to pay the worker at the normal rate.  However, it could equally be the case that a worker even one working under modified conditions could be providing a valuable service to the employer.  Whilst that arrangement continued to their mutual satisfaction, the worker would never have to rely on compensation and the employer retains the services of a valuable employee.  More importantly, I consider I am bound by the decision of the Court of Appeal in Work Social Club – Katherine Inc v Rozycki (supra).
[75]	I would allow these grounds of the cross-appeal.  I find that the respondent was entitled to weekly benefits pursuant to s 64 of the Work Health Act commencing from 11 May 2000.
3:	That the value of the free lodgings provided to the Respondent by the appellant included the value of electricity provided to those lodgings and no further value for that electricity was to be allowed in the assessment of normal weekly earnings.
[76]	The respondent does not press the cross-appeal in respect of this finding.  Accordingly, this finding has not been the subject of further consideration on the cross-appeal.
4:	That the respondent’s costs of and incidentals to the proceeding before the Work Health Court do not include his costs of his attempts to come to an agreement with the employer about the matter regarding the subject of the said proceeding, notwithstanding Section 110 of the Work Health Act.
[77]	This finding relates to the learned stipendiary magistrate’s refusal to allow for certain costs of and incidental to the proceedings in the Work Health Court.  The issue of costs was the fourth issue before the Work Health Court.  At par 2(iv) of his reasons for decision, the learned stipendiary magistrate states the issue he was asked to decide:
“In the context of the history of this matter, is the Worker entitled to recover from the Employer legal costs of and incidental to this his making his Work Health Claim and establishing his dispute with the Employer through the mediation process, in addition to his costs of and incidental to the proceeding, and additionally is the Worker entitled to his costs on the indemnity basis rather than the standard basis?’
[78]	On 6 April 2001 Mr Cavanagh ordered:
“That the Worker’s costs of and incidental to the proceedings do not include the Worker’s costs of his attempts to come to an agreement with the Employer about the matter regarding the subject of the said proceedings including both the formal and informal mediation process.”
[79]	This Court was informed there is no transcript of the proceedings of his Worship’s order, or the reasons for such order made on 6 April 2001.
[80]	The argument by Mr McDonald QC, on behalf of the appellant on the cross-appeal, is that, given the history that was before the learned stipendiary magistrate and the provisions of s 110 of the Work Health Act, the finding made by the learned stipendiary magistrate was in error.
[81]	Section 110 of the Work Health Act states as follows:
“In awarding costs in a proceeding before the Court, the Court shall take into account the efforts of the parties made before or after the making of the application under section 104 in attempting to come to an agreement about the matter in dispute and it may, as it thinks fit, include as costs in the action such reasonable costs of a party incurred in or in relation to those efforts, including in particular the efforts made at the directions hearing and any conciliation conference.”
[82]	Mr McDonald QC also made reference to some of the correspondence which is relevant to the history of the matter.  This correspondence is as follows:
“Exhibit 4 	Letter TIO to Worker, 8 March 2000 accepting liability
  Exhibit 6	Letter Ward Keller to TIO, 3 April 2000
  Exhibit 7	Letter Ward Keller to TIO, 17 April 2000
  Exhibit 8	Letter mediator Maria de Ionoo to worker, 12 May 2000 and letter Ward Keller to mediator 25 May 2000
(Not exhibit) Letter mediator to worker, 17 May 2000
Exhibit 5	Letter Hunt & Hunt to Ward Keller admitting liability, 7 June 2000”
[83]	In addition, the history of the matter is set out in detail in the affidavits of Denis Martin Caroll sworn 14 July 2000 and 6 February 2001, and John Neill sworn 10 and 14 July 2000, 23 August 2000 and 6 February 2001.
[84]	The costs in question involve correspondence with the Territory Insurance Office and the mediator and related attendances, from 3 April to 25 May 2000.  Mr Neill requested mediation by letter dated 17 April 2000.  On 12 and 17 May 2000, Mr Caroll attended mediation sessions.  The mediation was adjourned to an unspecified date.  Mr Caroll consulted Mr Neill to advise him that the mediation had not been successful and that he had opposed the adjournment.  Mr Neill wrote a letter to the mediator and the Territory Insurance Office dated 25 May 2000, copies of which are annexures “H” and “I” to Mr Neill’s affidavit sworn 10 July 2000.
[85]	Section 103G of the Work Health Act provides as follows:
“Unless the Court orders otherwise, the parties must bear their own costs of the mediation.”
[86]	On 17 July 2000, Mr Trigg SM delivered a decision following an application by the employer seeking an order that the application of the worker be struck out for failure to comply with the provisions of s 103J of the Work Health Act.  Mr Trigg SM dismissed this application and in the course of giving reasons for his decision stated (t/p 5):
  “In my view it was wrong of the mediator in this case to adjourn the matter – the mediation on 17 May 2000 – and further it was specifically wrong of her and without power to adjourn it to an unspecified time.  17 May was in my calculation, assuming giving the every benefit to the Work Health Authority and the mediator, was the 21st day.  There was no power to adjourn it.  The letter of the mediator of 17 May 2000 in my view was not in compliance with the Act.  On 17 May 2000 in my view, the mediator had a mandatory obligation to issue a certificate under section 103J(2) of the Act and she should have done so forthwith.
   It should have been unnecessary for Ward Keller to have to write to her on 25 May as they had to do, to seek a certificate.  It is further inexcusable that she should wait then until 22 June 2000 to issue that certificate.  When I say Ward Keller should not have had to do so, she should have issued it on 17 May automatically and the delay appears on the face of it to be unwarranted.  I won’t say any more on that because the mediator is not before me.”
and at t/p 8:
“It’s clear that the employer in fact never attended any of the mediation.  Despite that it appears that the mediator made no attempt to compel them as she had power to do under the Act.  The absence of the employer clearly frustrated the efforts to resolve it.  It follows in my view and I order (1) the employer’s application dated 5 July 2000 is dismissed.  …”
[87]	It would appear that because of problems associated with the mediation solicitors for Mr Carroll, the appellant in the cross-appeal, were called upon to carry out work in an effort to resolve this dispute that could not be regarded as costs of the mediation.  Mr Trigg SM also referred to the absence of the employer at the mediation which appears to have contributed to the mediation being adjourned indefinitely.
[88]	Mr Trigg SM also made reference in his decision to his view that on 17 May 2000, the mediator should have issued a certificate under s 103J(2) advising that the mediation had been unsuccessful.  His Worship went on to state that it should not have been necessary for the worker to have to chase it.  There is nothing before me to suggest Mr Trigg’s decision has been subject to challenge.
[89]	This has led me to the conclusion that there was in effect no mediation and that solicitors for the appellant on the cross-appeal are entitled to costs pursuant to s 110 of the Work Health Act including the work performed in an effort to resolve this dispute.
[90]	Given the somewhat unusual circumstances of this mediation I have concluded that the learned stipendiary magistrate was in error in the exercise of his discretion to refuse the order sought for costs
[91]	I summarise my findings as follows:
1.	The appellant’s appeal is dismissed.
2.	The respondent’s cross-appeal is allowed in respect of the following findings made by the learned stipendiary magistrate:
a)	that the respondent was entitled after 31 March 2000 to weekly benefits to s 65 of the Work Health Act but not pursuant to s 64 of the Act.
b)	that the period in which payments to the respondent pursuant to s 64 of the Work Health Act were payable had already expired by 31 March 2000.
3.	The respondent’s cross-appeal is allowed in respect of the following finding by the learned stipendiary magistrate:
c)	that the respondent’s costs of and incidentals to the proceeding before the Work Health Court do not include his costs of his attempts to come to an agreement with the employer about the matter regarding the subject of the said proceeding, notwithstanding s 110 of the Work Health Act.
[92]	I will hear from the parties as to the formal orders to be made consequent upon these findings and the appropriate orders as to costs.

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