Bell v WorkCover Queensland [1999] ICQ 60 (1999) 162 QGIG 179

178 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 22 October, 1999 22 October, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 179 #####################################################11##################################################################### QUEENSLAND INDUSTRIAL COURT WORKCOVER QUEENSLAND ACT 1996 Industrial Relations Act 1999 - s. 518(3) - appeal from decision of in dustrial magistrate Marian Marjorie Bell AND WorkCover QueeJL�land (No. C47 of 1999) PRESIDENT HALL 6 October 1999 DECISION The appellant ha d lived in a de facto marriage with Noel Barry Lancaster from on or about 14 October I 989 until Mr Lancaster's death on 19 April I 998. Her grandson, Simon Bell, had lived with Mrs Bell and the deceased from a date in 1996. It is common ground 1ha1 at the time of Mr Lancaster·s death. each of the appellant and Simon Bell was a member of his family for the purpose of s. 29 of the WorkCover Queensland Act 1996. Mr Lancaster died in consequence of injuries received a t work on 25 February 1998. In due course a claim under s. 219 of the WorkCover Queensland Act 1996 based on pani al dependen cy was advanced on behalf of the appellant and of her grandson. The claim was rejected. There was a n appeal to the Industrial Magist rate at Beenleigh. On 20 May 1999 the In dustrial Magistrate rejected the appeal . On 17 June 1999 Manon Marjor ie Bell appealed 10 this Coun 11 is of consequen ce that s. 579 of the WnrkCover Queen.sland Ac:t 1996 that chapter 9, as in force immediately before I July 1999. continues t o a pply 10 a decision made by WorkCover Queen sland before I J uly 1999 as if the WorkCover Queensland Amendmem Act 1999. s. 45, had not been enacted. It follows tha1 the appea l is to be dealt wi1h as an appeal under s. 5 I 8 an d is 10 be dealt with as an appeal by way of a re-hearing. an d there being no appltca1ion 10 lead additiona l evidence. on 1he evidence and proceedings before the Magistrate. On a ny fair reading of the Indu strial Magistrate 's decisio n, he rejec1ed 1hc claim ba sed on partial depen den cy because he was satisfie d thm the deceased contributed no more than a su m equivalent to his own expenses 10 the household budget. At one point His Worship said, "He only paid enough for his share of1hc household expenses whilst he was there.". Al another poinl His Worship said.··... but $170 a week it seems 10 me is no more than a border would have paid given whal was received by Mr Lancaster in retu rn for the mon ies chat he put into the kiuy .. :·. h is contended for the appellan t thm the Industrial Magistrate's fin dings a re inconsisten t with 1hc appellant's evidence 1ha1 the expenses incurred in respect of the decease d amounted to no more tha n $60 a week, and tha t the remaining contribution of$ I10 per week 10 the household budget went 10 the suppon of Simon an d herself. The submission is correct. However, the inconsistency between the appellant's evidence an d the Industrial Magistrme·s finding is a problem for the appellant rather than a point in her favour . It cannot be co ntended th at the Industrial Magistrate overlooked the appellant's evide nce on 1he mailer of dependency. Indeed. at one point or another in the course of his decision. His Worship referred to most of it. In those circums1ances, 1he on ly way in which His Worship might have reached a con clusion inconsistent with the evidence of the appellant. who was the only witness. was by rejecting her evidence. I do not accept that the appellant's credibility was not an issue. So soon as the appellant assened that the outlays in respecl of the deceased were in total n o more than $60 per week. her credibility was pu t in issue. Granted that the In dustri al Magis1ra1e had 1hc ad,•ama ge of seeing and hearing the appellant, it wo uld not be a ppropriate to interfere with His Worship's reJeclion of her evidence on an appeal by way of a re-hearing. On the view which I have taken, it is unnecessaT)' 10 expres s an opinion on the issue whether the value of services rendered by a deceased worker 10 a member of his family are 10 be taken into a ccount in deter mining whether 1ha1 member of his family wa s parually dependent upon him. It is sufficient to s.iy that I do 1101 regard Ger.< ,, the Workers Compe11satio11 Board of Queensland Act (1985) 29 QWC R 418 as decisive of the poin t. II is true that at p. 425 Mauhews. Presidem, said. "To provide some s ervices by way of main tenance of her house could be similarly regarded . .. But that wa s in a context in which the dece ased had not rende red services but had paid for them an d. as His Honour foun d, prob ably from his earnings. I order that the appeal be dismissed. I further order that the a ppellan t pay the respondent's costs of the appeal. taxed on the Supreme C oun scale. Dated this sixth day of October. 1999. D.R. HALL. President. Released: 7 Oc1ober 1999 Appearances:- Mr D.C. Rang-ia instructed by Murphy Schmidt for the appellant. Mr P. Rashleigh instructed by WorkCover Queensland for the r espondent. QGIG 22/10/99 -- 1 of 1 --