Abraham Seda Ghati v Sayan - [2010] NSWWCCPD 74

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Abraham Seda Ghati v Sayan & Ors [2010] NSWWCCPD 74
APPELLANT:		Abraham Seda Ghati
FIRST RESPONDENT: SECOND RESPONDENT: THIRD RESPONDENT:		Parvin Najafian Sayan Golden Lands Investment Properties Pty Ltd WorkCover New South Wales – Uninsured Liabilities
INSURER:		Cambridge Integrated Services Workers Compensation
FILE NUMBER:		A1- 6914/08
ARBITRATOR:	Ms C D’Souza
DATE OF ARBITRATOR’S DECISION:		27 May 2009
DATE OF APPEAL DECISION:		14 July 2010
SUBJECT MATTER OF DECISION:		Former sections 25, 26 and 27A of the Workers Compensation Act 1987; dependency; section 7 of the Telecommunications (Interception and Access) Act 1979 (Cth); sections 7 and 13 Listening Devices Act 1984 (NSW)
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:		Phil Banister Pty Limited
First Respondent:			Eugene Lepore & Associates
Second Respondent:			Sparke Helmore Lawyers
Third Respondent:		Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:		1. Paragraphs one, two and three of the Arbitrator’s determination dated 27 May 2009 are revoked and in their place the following findings and orders are made:
“1. The late Farhang Tizfahm Mindoab died on 30 November 2006 as a result of injuries arising out of or in the course of employment with Arbraham Seda Ghati.
2. At the time of the deceased’s death Parvin Najafian Sayan and Agahalla Tizfahm were each partially dependent upon the deceased for support. There were no other persons dependent upon the deceased.
3. The second respondent Abraham Seda Ghati, pursuant to former section 26 of the Workers Compensation Act 1987, is to pay the sum of $48,000.00 to Parvin Najafian Sayan and weekly compensation in respect of Agahalla Tizfahm, at the rate of $100.40 per week from 29 November 2006 to 20 December 2006, and at the rate of $104.10 per week from 15 February 2008 to 31 March 2008 and $106.20 per week from 1 April 2008 to 7 May 2008. Such sums are to be paid directly to Parvin Najafian Saya.”
2. Paragraphs four, five, six, seven, eight, nine and ten of the Arbitrator’s determination dated 27 May 2009 are confirmed, subject to the amendment of the date of death appearing in paragraph five to state: “30 November 2006”.
3. The appellant to pay Ms Sayan’s costs of the appeal and those of the second respondent. Such costs are to be paid by WorkCover Authority of New South Wales acting for the Nominal Insurer and the appellant is to reimburse that Insurer in respect of such payment.
4. The Arbitrator’s certification of complexity which appears at the foot of her Certificate of Determination dated 27 May 2009 is confirmed.

BACKGROUND TO THE APPEAL

The late Farhang Tizfahm Mindoab died on 30 November 2006 as a result of injuries received by him on 27 November 2006. On the day of his injury the deceased was carrying out welding work upon a mobile scaffold which had been erected at premises situated at 97 Glenhaven Road, Glenhaven NSW. The deceased was working on steel roof trusses which were to be welded in place in a partly constructed storage shed on that property. At approximately 12:20pm on that day the deceased fell from the scaffold to the concrete floor of the structure causing severe head and chest injuries. The deceased was transported by ambulance to Westmead Hospital where he received intensive treatment until the time of his death.
Ms Parvin Najafian Sayan is the widow of the deceased. Ms Sayan alleged that at the time of his death her late husband was in the course of his employment. By reason of doubt as to the identity of the deceased’s employer at the time of his death, claims in respect of workers compensation benefits had been made by Ms Sayan on her own behalf, and on behalf of her son Agahalla Tizfahm against Golden Lands Investment Properties Pty Ltd (‘Golden Lands’) and Abraham Seda Ghati. The claims made by Ms Sayan were denied by Golden Lands and Mr Ghati. Following a denial of the claims an Application to Resolve a Dispute (‘Application’) was filed on behalf of Ms Sayan with the Commission on 3 September 2008. Mr Ghati, who denies that he employed the deceased, was not the holder of a policy of insurance in respect of liability which may arise pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) and/or the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). In the circumstances WorkCover New South Wales (‘WorkCover’) had been joined as a respondent to Ms Sayan’s application.

The application came before an Arbitrator on 5 February 2009 for conciliation/arbitration. The matter proceeded to hearing and was part heard on that day. The hearing proceeded on 6 February 2009 and 26 February 2009 following which the Arbitrator reserved her determination. A Certificate of Determination issued on 27 May 2009 and that certificate was accompanied by a Statement of Reasons (‘Reasons’).

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 27 May 2009 records the Arbitrator’s orders as follows:
“The Commission determines:

1. That the date of death of the worker, Mr Farhang Tizfahm Mindoab, is 29 November 2006 (sic).
2. That the Second Respondent, Abraham Seda Ghati, pay the Applicant $319,250.00 pursuant to former section 25(1) (a) of the Workers Compensation Act 1987.

3. That the Second Respondent, Abraham Seda Ghati, pay the Applicant, in respect of Mr Agahalla Tizfahm, weekly compensation at the rate of $100.40 per week from 29 November 2006 to 20 December 2006 and from February 2008 to 7 May 2008 pursuant to section 25(1)(b)(ii) of the 1987 Act.
4.    That the Second Respondent, Abraham Seda Ghati, pay the Applicant’s reasonable funeral expenses, including cemetery and related expenses, up to the amount of $9,000.00.
5.    That the Second Respondent, Abraham Seda Ghati, pay expenses for hospital treatment received by the deceased worker, Mr Farhang Tizfahm Mindaob prior to his death on 29 November 2006 (sic) in the amount of $2,505.00 pursuant to section 60 of the 1987 Act.
6.    That the Second Respondent, Abraham Seda Ghati, was not insured as required by the Workers Compensation Act 1987 at the time of the Applicant’s injury.
7.    That the Third Respondent, the WorkCover Authority of NSW, acting for the Nominal Insurer, pay the compensation and costs awarded against the Second Respondent from the Workers Compensation Insurance Fund (‘the Fund’).
8.    That the Second Respondent Abraham Seda Ghati reimburse the Workers Compensation Nominal Insurer for
·   amounts paid out of the Fund in respect of compensation and costs awarded against the Second Respondent, and
·   the costs of the Workers Compensation Nominal Insurer.
9.    Award in favour of the First Respondent, Golden Lands Investment Properties Pty Ltd.
10.That the Second Respondent Abraham Seda Ghati pay the Applicant’s costs as agreed or assessed.
Certification of Complexity
The matter is certified complex pursuant to Schedule 6 to the Workers Compensation Regulation 2003 such as to warrant a 45% increase of costs otherwise payable in respect of all parties as a result of the complexity of the issues involved, the consideration of extensive evidence of witnesses, the involvement of multiple parties and the volume of documentary material
A statement is attached to this determination setting out the Commission’s reasons for the determination.”

An Appeal Against the Decision of the Arbitrator was filed with the Commission by Mr Ghati on 23 June 2009.

PRELIMINARY MATTERS

Mr Ghati’s application seeking leave to appeal was initially allocated to an Acting Deputy President of the Commission. The matter remained with that presidential member until June 2010 when, by reason of his appointment as an Arbitrator of the Commission the matter was reallocated to myself. Before that reallocation occurred the Acting Deputy President had been confronted by a significant procedural difficulty, being the absence of a full and complete transcript of proceedings which took place before the Arbitrator on 5 February 2009. On that day the Arbitrator had dealt with a number of objections concerning the admissibility of evidence and, it seems, made rulings with respect to some of those matters. One significant argument dealt with by the Arbitrator on that day concerned the admissibility of evidence of a telephone conversation between Mr Sohrab Tesfan (also known as Shahin Tizfahm and Sorhab Tizfahm), the eldest son of the deceased and Ms Sayan, and Mr Ghati which had been recorded by Mr Tesfan. I note that argument concerning the admission of that evidence was subsequently supplemented by way of written submissions and no ruling was made concerning its admissibility on that particular day. The Arbitrator, on that day, granted leave to Counsel appearing on behalf of Mr Ghati to cross examine Ms Sayan. A transcription of that day’s proceedings was produced however in its original form that transcript was virtually incomprehensible. It appears that the quality of the sound recording made on the day was deficient and a proper transcription was not able to be produced.
The Acting Deputy President conducted two telephone conferences with the parties, the first of which took place on 6 November 2009. During the course of that teleconference the Acting Deputy President raised with the parties the difficulty thrown up by the state of the transcript of proceedings recorded on 5 February 2009. During discussion the need, or otherwise, for a rehearing was raised following which the parties helpfully offered to listen to the recording of proceedings with a view to attempting agreement as to those portions of the recording that had been impossible to transcribe. The Commission, with the assistance and cooperation of the parties, arranged for the recording to be made available for that purpose.
A revised form of transcript of proceedings which took place on 5 February 2009 became available to the Commission following which, on 19 April 2009, the Acting Deputy President arranged for a further telephone conference. It was acknowledged by the parties during that teleconference that the revised transcript, particularly that portion relating to evidence given by Ms Sayan, appeared to be more accurate and complete than the original transcript. The parties agreed to meet again in an effort to reach agreement regarding any further amendment that may need to be made to the transcript. A number of directions were made concerning the provision of further material and submissions and it was noted that, following receipt of that further material the appeal was to be dealt with, by consent, on the papers. There is before the Commission a form of transcript relating to proceedings on 5 February 2009 which includes additions and amendments as agreed among the parties. A complete and accurate transcript of proceedings which took place on 6 February 2009 and 26 February 2009 is also available.

ON THE PAPERS REVIEW

Section 354(6) of the 1998 Act provides:

“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

Having regard to Practice Directions Numbers one and six, the documents that are before me and the parties agreement that the appeal should proceed to determination on the papers, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

LEAVE

There is no dispute between the parties concerning threshold requirements as prescribed by section 352 of the 1998 Act.

The appeal having been lodged within the time prescribed by that section and the fact that the monetary threshold prescribed by that section has been met, together with a consideration of the arguments raised on appeal, lead me to conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in the following respects:
(a)     failing to rule upon objections raised by Mr Ghati to various evidentiary matters relied upon by Ms Sayan in her Application;
(b)     treating the evidentiary material attached to the Application as being admitted into evidence upon the basis that no objection had been raised to that material at a teleconference conducted before the commencement of the hearing;
(c)     in admitting into evidence the recorded mobile phone conversation between Mr Sohrab Tesfan and Mr Ghati which took place on 29 November 2006 and the evidence of Sohrab Tesfan concerning that conversation;
(d)     in finding that the deceased was a worker in the employ of Mr Ghati;
(e)     in finding that Ms Sayan and Agahalla Tizfahm were totally dependent upon the deceased;
(f)     in failing to dismiss the Application brought by Ms Sayan by reason of her failure to comply with the statutory requirements as to the giving of notice of claim, and
(g)     in failing to find that Ms Sayan had failed to discharge the onus of proof that the deceased was not a casual employee within the meaning of section 4 of the 1998 Act.

The above summary of the issues is taken from the written submissions put by the appellant in support of the application seeking leave to appeal.

EVIDENCE

The documentary evidence before the Arbitrator was summarised by her at [11] of her Reasons. Included among the material as summarised was a compact disc recording of a telephone conversation allegedly between Sohrab Tesfan and Mr Ghati which had been tendered on behalf of Ms Sayan. That conversation had not been conducted in the English language.

The Arbitrator noted between [12] and [16] of her Reasons that oral evidence had been given in the course of the hearing by Ms Sayan, Mr Sorhab Tizfahm (Sohrab Tesfan), Mr Mehran Sisan and Mr Ghati.
The parties relied on a very large volume of documents, not all of which are relevant to the issues raised on this appeal. A number of matters are established on the evidence and give rise to no particular dispute. The deceased was, at the date of his death, 54 years of age. The deceased and Ms Sayan were married in Iran in September of 1978 and there have been four children of that marriage. As at the date of death the youngest child of the marriage, Agahalla, who was born in 1989, was a school student in his final year of high school. His three siblings had completed their schooling and, it seems, had joined the workforce.
The deceased and his family moved to Australia from their native Iran in July 1998. The family had obtained public (housing commission) accommodation. The deceased was a qualified welder however he had not been so employed in this country until such time as his alleged employment by Mr Ghati in November 2006. In her statement which is in evidence, Ms Sayan asserts that her late husband had “no real physical problems that would prevent him working”, but that he had experienced difficulty gaining employment in this country.
Ms Sayan states that her late husband had injured his back and left leg in an accident which occurred in Iran before the family’s departure for this country. Other evidence suggests that the deceased had been injured in a motor vehicle accident in that country. Ms Sayan states that the deceased underwent heart surgery in approximately 2002 following which he stated that he felt “much better” and had expressed a wish to “get into the workforce”.
The deceased had been in receipt of a Commonwealth disability pension from 1998 until the date of his death. Ms Sayan at that date had been in receipt of a Carer’s pension provided by the Commonwealth which included an allowance in respect of her youngest son. The deceased had been a patient of Dr A Eshragi, general practitioner of Parramatta, since 1998. Dr Eshragi’s clinical notes have been tendered in evidence by Mr Ghati. Included amongst those documents is a report addressed to the Department of Social Security dated 29 July 1998 which outlines a number of significant disabilities suffered by the deceased at that time. It is clear that this document was utilised by the Department for the purpose of determining the deceased’s eligibility for social security benefits. The detail of this report is addressed below.
The evidence of Mr Ghati establishes that he is the sole director and sole shareholder of the first respondent, Golden Lands Investment Properties Pty Ltd. The business of that company is concerned with real estate dealings. Mr Ghati is, and was in 2006, the owner of a property at 97 Glenhaven Rd Glenhaven, New South Wales. That property, it seems, is held jointly with his wife. Mr Ghati qualified as a Civil Engineer in Iran and had migrated to this country in 1986 or 1987.
In 2005 Mr Ghati commenced building work at the Glenhaven property which is a holding of five acres which was originally occupied by a small cottage. The building works concerned renovation and extension of that building, construction of fencing and construction of a large storage shed or warehouse some distance from the residence. Mr Ghati originally engaged a company known as Hayat Constructions to undertake the building work. That arrangement came to an end in June 2006 given Mr Ghati’s dissatisfaction with the standard of work performed by the contractor. Mr Ghati obtained a builder’s permit in June of 2006. He performed much of the work himself and engaged subcontractors to do the larger jobs such as the laying of slabs, plumbing, electrical work, gyprocking, septic and sewerage connections and placement of steel trusses on the roof of the storage shed.
Mr Ghati states in evidence that he is a competent welder and carried out much of the welding work required on the job. Photographs of the property which are in evidence demonstrate that the fencing comprises a large and somewhat elaborate steel and masonry fence.
Mr Ghati denies the allegation that he had employed the deceased as a welder to carry out work at the Glenhaven property. It is not in dispute that on 27 November 2006 the deceased was seriously injured at Mr Ghati’s premises when he fell from a scaffold which had been erected in the storage shed. The deceased had been there performing welding work upon a scaffolding with the use of welding equipment belonging to Mr Ghati. The scaffold had been delivered to the premises on 22 November 2006 by Mr Christopher Hoefel, an employee of Kennards Hire of Kellyville. In a statement made by Mr Hoefel to the New South Wales Police which is in evidence, it is said that at the time he unloaded the unassembled scaffolding he had a conversation with Mr Ghati. The delivery docket was signed by Mr Ghati. The scaffold comprises handrails, frames, platforms, blue braces, yellow braces, four wheels/casters, ladder, toeboards and two braces.

Evidence of contract of service

Ms Sayan asserts in her statement dated 10 July 2008 “my husband started working for [Mr Ghati] on or about 13 November, 2006. I recall my husband telling me he was paid $80.00 to $100.00 per day”.
Sohrab Tesfan, in a statement made to the New South Wales Police on 8 December 2006, recounts a conversation which he had with his late father on 10 November 2006. He was informed by his father that a cousin had given him a telephone number of persons who were “looking for a professional welder”. The deceased indicated in that conversation that he was intending to call the telephone number to “see if they want me”. Sohrab Tesfan states that he was present whilst his father made the telephone call during which he heard his father state his age, his status as a pensioner and that he was “Bahi”.

Sohrab Tesfan proceeds to state that the following day, 11 November 2006, he had a further conversation with his late father at approximately 7:30 pm. His father arrived home at that time and stated that he had been to “see Khosro” whom he had met at a Persian supermarket in North Parramatta and had attempted, in his company, “to go see the job”. His father informed him that whilst they were travelling to the job Khosro received a telephone call cancelling the arrangement. Khosro returned the deceased to North Parramatta and provided him with a map to enable the job to be located the following morning.
Sohrab Tesfan states that on that night he and his father travelled together to locate the job. The address given to the deceased was 97 Glenhaven Road, Glenhaven. Sohrab Tesfan and his father drove past the front of the house.
On Monday 13 November 2006, the deceased left his home at 6:00am, as stated by Sohrab Tesfan, to attend the Glenhaven address. At 6:00pm on that day the deceased informed Sohrab Tesfan that the identity of the man he was working for was Mr Ghati. Sohrab Tesfan had met Mr Ghati three years earlier, at a time when he was intending to sell a property.
It is further stated by Sohrab Tesfan that the deceased worked for Mr Ghati “for seven days from Monday November 13^th, to Sunday November 19^th. He then again worked from Monday 20^th November till Saturday 25^th November. He did not work on Sunday 26^th and he went again on Monday 27^th”.
Sohrab Tesfan further states that on 15 November 2006 he had obtained Mr Ghati’s telephone number from his late father and phoned him to make enquiries concerning purchase of a house. He attended at the Glenhaven address on Saturday 18 November 2006 at approximately 10:00am. He saw his late father performing welding work at that address. He was working at ground level welding a metal fence. There was another worker present known as Mahmoud who was carrying out painting and who assisted his late father to move the fences. Mr Ghati arrived at the site some short time later following which Sohrab Tesfan and Mr Ghati travelled to inspect a house which was for sale.
Sohrab Tesfan states that he questioned his father as to how much Mr Ghati was going to give him to which his father replied “once [Mr Ghati] told me that he does not pay more than $80 or $100 to anyone that works in his place”.
Sohrab Tesfan states that on 28 November 2006 he went to a Persian supermarket at Parramatta where he saw an advertisement displayed there which stated “we need professional welder xxxx xxx 419”. That document had the date “23/10” endorsed.
Sohrab Tesfan proceeds in his statement to provide detail of an alleged telephone conversation he had had with Mr Ghati on 29 November 2006. That conversation, it is stated, was recorded and was later transferred to a sound recording disc. Mr Ghati, at the hearing before the Arbitrator, objected to the admission of the sound recording, a translation of it made by an interpreter during the course of the hearing, a written translation of the recording and the evidence of Sohrab Tesfan concerning detail of the alleged conversation. The Arbitrator addressed arguments raised by the parties concerning the admissibility of this evidence between [17] and [33] of Reasons. The Arbitrator ruled that all evidence relevant to that conversation including the direct evidence from Sohrab Tesfan, the translations described at [18] of Reasons and the sound recording of the telephone conversation were admissible. That ruling has been challenged by Mr Ghati on this appeal and it is convenient to deal with the question of the admissibility of that evidentiary material at this point.

Admissibility of recorded telephone conversation and related evidence

Oral evidence was given by Sohrab Tesfan before the Arbitrator on 6 February 2009. The transcript of that day’s proceedings, commencing at T20, records the evidence concerning the conduct and recording of the alleged telephone conversation between Sohrab Tesfan and Mr Ghati. The communication was made by Sohrab Tesfan to Mr Ghati’s telephone and the conversation which ensued, conducted in the Persian (Farsi) language, was recorded on Sohrab Tesfan’s mobile telephone. The compact disc recording of that conversation had been produced after downloading the recording from the telephone to a computer and then transferred to the disc. That transfer was effected by Sohrab Tesfan’s younger brother. A transcript of that recorded conversation which represents a translation into the English language had been arranged by the WorkCover investigator Inspector David Clyant. That transcript was admitted into evidence by the Arbitrator. During the course of proceedings before the Arbitrator on 26 February 2009 the recording was listened to by an official interpreter, who had been retained to provide services in the course of the hearing, and the transcript records the interpreter’s translation to English of the discussion as recorded. That evidence is to be found between T63 and T66 of the transcript of that day’s proceedings.
Mr Ghati’s objection to the evidence concerning the telephone conversation, which included the oral evidence of Sohrab Tesfan as well as the compact disc recording, the transcription prepared by WorkCover and the translation as recorded in the transcript, was founded upon the provisions of (CTH) Telecommunications (Interception and Access) Act 1979 (‘TIA Act’) and the former (NSW) Listening Devices Act 1984 (‘LD Act’). It is argued on behalf of Mr Ghati that the recording of the telephone conversation was unlawful in that such was carried out in breach of the provisions of both the Commonwealth and State legislation. By reason of the provisions of each of the Acts, it is argued, the recording and associated evidence were inadmissible and that the Arbitrator had erred in admitting that evidence.
I note in passing that the LD Act has been repealed and the successor to that legislation is the Surveillance Devices Act 2007. Nothing in the subsequent legislation or the regulations suggest that the new provisions have any relevance to the present facts, hence regard must be had to the terms of the LD Act when the rights and obligations of the parties to the present proceedings are being considered. Given that both the Commonwealth and the State legislation each address the subject of interception and recording of communications it is appropriate to firstly consider the relevance or otherwise of the Commonwealth legislation. When dealing with the application of this legislation one must, as observed by Kemp FM in Molloy & McAdam [2008] FMCAfam 739 (11 July 2008) “look to determine whether the recording occurred in circumstances not covered by the Commonwealth Act, and only then, can the State Act be considered”. That view of Kemp FM was expressed following his consideration and adoption of what was said in Byrne & Byrne (2003) FLC 93-125.
The facts of the present case are similar to those considered by Brereton J in Chao v Chao [2008] NSWSC 584 (8 May 2008) (‘Chao’). In that matter His Honour was dealing with an objection to evidence concerning a telephone conversation which had been recorded with the use of a small portable cassette tape recorder which did not form part of the telephone. In the present case the evidence is that the recording was effected within the mobile phone utilised by Sohrab Tesfan. In Chao His Honour drew an inference that the recording was made after the conversation had become accessible to the plaintiff, in the sense that the plaintiff was listening to the conversation contemporaneously with it being recorded. His Honour proceeded to state:
“5 (CTH) Telecommunications (Interception and Access) Act provides, by s 7, that a person shall not intercept or authorise another person to intercept a communication passing over a telecommunications system. Section 5F provides that a communication is taken to start passing over a telecommunications system when it is sent or transmitted by the person sending the communication, and is taken to continue to pass over the system "until it becomes accessible to the intended recipient of the communication". Section 5H provides that, without limiting the circumstances in which a communication may be taken to be accessible to its intended recipient, it is accessible to the intended recipient if it has been received by the telecommunications service provided to the intended recipient, or is under the control of the intended recipient, or has been delivered to the telecommunications service provided to the intended recipient.

6 In my view it is clear that, at the time the recording was made, the relevant communication had become accessible to the plaintiff – the intended recipient – and, accordingly, that the Commonwealth Act does not apply.”

In the present case the evidence permits an inference that the recording occurred after the conversation had become accessible to Sohrab Tesfan in that he heard the conversation contemporaneously with it being recorded. I so find. Having regard to the matters summarised by Brereton J in Chao I conclude that the TIA Act has no application to the present facts.
In the matter of Chao His Honour proceeded to consider the application of the provisions of the LD Act, and the following statement was made as to the operation of that Act given the facts as found:
“7 (NSW) Listening Devices Act prohibits the use of listening devices and excludes from evidence material obtained as a result of the illegal use of listening devices in various circumstances. However, s 13(1) – which might otherwise exclude evidence obtained as it was in the present case – does not do so if the relevant evidence does not come to the knowledge of the witness as a result of use of the listening device. Here, the relevant evidence came to the knowledge of the witness as a result of her hearing the conversation to which she was a party over the telephone, and not by use of the listening device.”
Sohrab Tesfan acquired knowledge of the conversation not as a result of the use of the listening device but rather, as in Chao, as a result of him participating in the conversation. In the circumstances I conclude that the provisions of section 13 of the LD Act do not operate to render evidence of the conversation inadmissible in these proceedings. Accordingly I am of the opinion, for the reasons stated, that the Arbitrator’s admission of the evidence noted at [36] above was correct. Whilst I accept the submission put on behalf of Mr Ghati that the provision of section 354 of the 1998 Act and Rule 15.2 of the Workers Compensation Commission Rules 2006 do not, as found by the Arbitrator, permit the admission of material that is expressly prohibited by statute, my factual conclusions concerning the conduct of the recording and the application of the Acts in question lead me to conclude that the Arbitrator’s ultimate ruling concerning admissibility was correct.
The transcription of the telephone conversation which had been arranged by WorkCover is accompanied by a certificate signed by Mr Khosrow Azordegan, translator, dated 18 June 2008 (incorrectly noted as being dated 18 June 2007 by the Arbitrator). The translation which accompanies that certificate is more easily comprehended than the evidence given by the interpreter at the hearing. Sohrab Tesfan questioned Mr Ghati concerning his late father’s ‘work program’ and questioned him as to how much per day he was paid and whether he was owed anything. The translation records Mr Ghati replying “… only 2 days in this week”. A further question was put concerning how much per day Mr Ghati had agreed to pay the deceased to which Mr Ghati replied “$100 bucks”. The translation by Mr Azordegan records that there was a lot of disturbance to be heard on the telephone line causing difficulties understanding the conversation. Sohrab Tesfan in his statement made to the New South Wales Police said (at [25]) that Mr Ghati had said “yes I owe him only two days, because I paid him every week”.
There was other evidence before the Arbitrator which concerned the circumstances of the deceased’s presence at the Glenhaven property. That evidence includes a statement made by Mr Brian Temple, a lawn mower who worked on a contract basis for Mr Ghati from time to time and that of Mr Mahmoud Zovidavi Darkhoen. Detail of this evidence appears below.
Mr Ghati, in his statement to Mr Clyant, the WorkCover Inspector, denied that he employed the deceased. He stated that the deceased was a friend who came to help him and to bring lunch for him. In a statement made to the NSW Police on 7 December 2006, Mr Ghati asserted that he first met the deceased on Wednesday 22 November 2006 when the deceased attended his house. On that day, Mr Ghati stated, the deceased informed him that he was a welder and had 20 years experience. It was further stated that the deceased, on that day, helped with the scaffolding but did no welding. On the following day Thursday 23 November 2006 the deceased came to the premises at about 10:00am or 11:00am and left at 3:00pm. On that day the deceased and Mr Ghati, it is stated, “finished putting the scaffolding”. Mr Ghati states that the deceased “also welded some fencing for the side on the floor inside the shed”.
Mr Ghati states that the deceased attended his premises again on Monday 27 November 2006. Mr Ghati states that on that day he was on the scaffolding doing some welding. The deceased, who arrived at approximately 10:00am, “came up onto the scaffolding and helped me”. It is also stated that the deceased “helped me from the bottom”.
Mr Ghati in his evidence before the Arbitrator given on 26 February 2009 was questioned by his Counsel concerning the transcription of the alleged telephone conversation between himself and Sohrab Tesfan. Mr Ghati stated that the recording was a “forgery” (at T89, 26 February 2009). Mr Ghati in that evidence denied that the deceased was his employee. When cross examined by Counsel appearing for Ms Sayan Mr Ghati stated that “maybe somebody has imitated” his voice on part of the recording. Mr Ghati denied having a conversation with the deceased’s son “regarding money and things that may have been owed to his father” (at T122 of transcript). Mr Ghati also denied having paid the deceased “over $1000 in respect of the work he did” (T124).

Evidence of dependency

There are two written statements made by Ms Sayan in evidence. The second of those statements, dated 2 February 2009, which was admitted by the Arbitrator as a late document, reiterates certain matters which were stated in the earlier statement dated 10 July 2008. Concerning the issue of “dependency” the following matters are to be found in Ms Sayan’s evidence:
(a)     The deceased was able to work before coming to Australia and had no real physical problems that would prevent him working but did take medication for his back and leg pain;
(b)     Following heart surgery the deceased felt much better and wanted to get into the workforce;
(c)     The deceased did not wish to continue on Centrelink benefits. He desperately tried to look for work as he wanted to create a better quality of life for the family;
(d)     The deceased told Ms Sayan that he had been paid $80.00 to $100.00 per day by Mr Ghati for whom he started working on or about 13 November 2006. The deceased gave Ms Sayan his first pay of $450.00 in cash to be used as household expenses. In the second week the deceased gave Ms Sayan $650.00;
(e)     It was the deceased’s intention to continue to provide for Ms Sayan and for the rest of the family;
(f)     At the time of the deceased’s death Ms Sayan and her youngest son were fully financially dependent upon the deceased. The youngest son lived at home and Ms Sayan and her late husband provided him with “food, clothing, board etc”.
(g)     The deceased and Ms Sayan had been on Centrelink and pooling both payments together, and
(h)     At the date of the deceased’s death the youngest son known as Agah was attending high school completing year 12. Following completion of schooling Agah attended full time TAFE. That course was discontinued after six months and in October 2008 Agah went to Israel to attend religious services for a period of 12 months.
In evidence given before the Arbitrator on 5 February 2009 Ms Sayan gave evidence when re-examined by her Counsel that the deceased did a lot of work around the home. That work was described as “mechanical work, fixing electrical machines, any problem we had he would fix and then my kids cars”. When questioned further concerning mechanical work Ms Sayan said “changing batteries, (inaudible) washing, everything that the car needed working”.

SUBMISSIONS, DISCUSSION AND FINDINGS

I have attempted to summarise the evidence relevant to the significant factual disputes between the parties being the alleged contract of service between the deceased and Mr Ghati and the alleged dependence (for support) of Ms Sayan and her son on the deceased. Before embarking upon an examination of arguments raised and the Arbitrator’s reasons with respect of those matters it is necessary to deal with a number of ancillary matters raised on this appeal. Those matters concern the suggested failure on the part of the Arbitrator to rule upon objections raised by Mr Ghati to various evidentiary matters; the manner in which the Arbitrator treated the evidentiary material, and the suggested failure by the Arbitrator to dismiss the application brought by Ms Sayan by reason of her alleged failure to comply with the statutory requirements concerning notice of claim.

Mr Ghati’s complaint concerning the Arbitrator’s rulings concerning admission of evidence is to be found at [2] of submissions accompanying the application seeking leave to appeal. It is suggested that the Arbitrator “declined to rule upon many objections to the evidence”. It is further asserted that the Arbitrator wrongly treated all the material which was attached to Ms Sayan’s Application and her application seeking to adduce late evidence as being in evidence before the Commission given that no objection had been taken to that material during a telephone conference conducted some time before the first hearing date.
There are two difficulties with these arguments raised on behalf of Mr Ghati. Firstly there is no particularity concerning the evidence in respect of which Mr Ghati sought to object. The transcript, notwithstanding the difficulties encountered in transcription from the recording, indicates that considerable argument was raised by Mr Ghati concerning the state of the evidence. It appears that the Arbitrator took the view that certain evidentiary material had been dealt with conclusively at the teleconference. There is no transcript available of that teleconference and no specific submission has been put by Mr Ghati with respect to matters which may have transpired on that occasion. Secondly, it is clear from the transcript of proceedings conducted on 5 February 2009 that certain rulings were made by the Arbitrator with respect to the admissibility of certain portions of the evidence. Again it is difficult, if not impossible, to follow the rulings with precision as recorded in the transcript, however the Arbitrator’s summary of the documentary evidence found at [11] of her Reasons notes a number of matters that have been excluded from evidence which had been included among documents attached to an application to admit late documents, filed by Ms Sayan on 2 February 2009.
In the absence of any specific complaint concerning the Arbitrator’s ruling with respect to the admission of evidence, I am not persuaded that the appellant has demonstrated error on the part of the Arbitrator of such character that a review concerning the state of the evidence is required. It is clear, in my view, that the Arbitrator has not only taken care with respect to the manner in which portions of the evidence relied upon by Ms Sayan was considered admissible, but it is also perfectly clear that the Arbitrator was conscious of the need to carefully asses the weight of the evidence which was before her.

Mr Ghati complains on this appeal that the Arbitrator erred in failing to dismiss Ms Sayan’s application given the failure to comply with the statutory requirements as to the giving of notice of claim. It is correct that the issue of notice was raised in the Reply filed on behalf of Mr Ghati. That issue was also raised, but abandoned, by the other respondents to the original application. The subject of reliance upon such a defence was touched upon during proceedings conducted on 26 February 2009. It is recorded (at T137 of transcript of that day’s hearing) that Counsel for Ms Sayan acknowledged that the issue of notice had been raised by the respondents. Counsel appearing on behalf of Golden Lands and WorkCover indicated that no reliance was placed upon the relevant provisions. The transcript does not record any acknowledgment or confirmation concerning such a defence being raised on behalf of Mr Ghati. Counsel appearing for Ms Sayan proceeded to put short argument to the Arbitrator concerning the issue of notice and then concluded his address. Counsel appearing on behalf of Mr Ghati proceeded to address the Arbitrator immediately thereafter and it is important to note that no argument was advanced with respect to the notice provisions.
Notwithstanding the absence of any argument raised on behalf of Mr Ghati concerning the issue of notice the Arbitrator dealt with that issue between [155] and [160] of her Reasons. Attention was given to the provisions of section 261 of the 1998 Act and the Arbitrator proceeded to find that Ms Sayan’s failure to comply with the requirements of notice prescribed by that section was no bar to recovery of compensation by reason of her ignorance of the law, or mistake or some other reasonable cause.
The unsatisfactory state of the record concerning this suggested defence is made more confusing by reason of that which was recorded during the conduct of a telephone conference convened on 6 November 2009 by the Acting Deputy President who formerly had carriage of this appeal. The transcript of that telephone conference records Counsel appearing on behalf of Ms Sayan as saying “I have a recollection, and my recollection is never perfect, that [notice] was not an issue that was going to be tried, and [Counsel for Mr Ghati] has noted that he made no submissions in relation to it. I am left in the position that I may need to call evidence if that is really a live issue in this appeal”.
The Acting Deputy President responded, properly in my respectful view, by observing that “normal principles governing appeals are such that a party would normally need leave to raise an issue on an appeal that wasn’t raised at first instance”. The transcript records no response to the Acting Deputy President’s observation. A direction was subsequently made by the Presidential member that Ms Sayan was to file and serve any further material (including the supplementary statement) “going to sections 260 and 261” of the 1998 Act by 24 May 2010. Ms Sayan responded to that direction by filing a document which is headed ‘Application to Admit Late Documents’ which had attached a large number of documents touching on the subject of notice and delay.
It is a fact that reference to the notice provisions was made in the Reply filed by Mr Ghati however it is also a fact that no argument was advanced at the hearing concerning that matter. The subject was raised during the course of teleconference and no application was made on behalf of Mr Ghati seeking leave to rely upon that provision on this appeal. No such application has been made since. In the circumstances I conclude that, there being no argument advanced before the Arbitrator nor any application seeking leave to rely upon alleged non compliance with notice provisions, Mr Ghati may not raise the point on this appeal. I have taken the opportunity to listen to a sound recording of a later telephone conference conducted by the Acting Deputy President on the 19 April 2010 at which time the subject of notice was touched upon. Whilst it was asserted by Counsel that the question of notice had been raised in the Reply, there was no suggestion made that argument had been advanced before the Arbitrator on that point and, more importantly, no application for leave to rely upon any defence that may be available under those provisions was made on behalf of Mr Ghati.
If I am in error in refusing leave to Mr Ghati to raise a defence to this claim founded upon the notice provisions I record that I grant leave (pursuant to the provisions of section 352(6) of the 1998 Act) to Ms Sayan to rely upon the documents filed on her behalf pursuant to the Acting Deputy President’s direction. That leave is granted in the interests of justice and notwithstanding failure on the part of Ms Sayan to comply with Practice Direction Number six, concerning leave applications of that nature. Having considered the material that was before the Arbitrator and the fresh evidence admitted on this appeal I conclude that Ms Sayan’s failure to comply with the notice requirements was occasioned by ignorance within the meaning of section 261(4)(a) of the 1998 Act. The ignorance, which I find, concerned potential rights as against Mr Ghati. That ignorance arose by reason of the confusion surrounding the identity of the deceased’s alleged employer at the time of his death. As was found by the Arbitrator, Mr Ghati has been aware of all relevant circumstances since the date of the deceased’s injury and there can be no basis to argue that prejudice flows from any delay in giving formal notice of claim.

Was the deceased a worker at the date of injury?

It should be noted at once that there was no persuasive evidence before the Arbitrator that the deceased had at any relevant time been employed by Golden Lands. There is no challenge on this appeal against the award entered by the Arbitrator in favour of that respondent other than that which appears at [9] of submissions put on behalf of Mr Ghati. Given Mr Ghati’s denial of the existence of any contractual arrangement, that argument and the reliance upon Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; (2007) 69 NSWLR 603, must be rejected. The award in favour of Golden Lands must stand. Evidence presented before the Arbitrator on behalf of Ms Sayan was directed to proof that, at the time of his injury leading to his death, the deceased was a worker within the meaning of the Acts. The term worker is defined in section 4(1) of the 1998 Act which, so far as is relevant, provides:
“worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing). However, it does not include:
(a) …
or
(b) a person whose employment is casual (that is for 1 period only of not more than 5 working days) and who is employed otherwise than for the purposes of the employer’s trade or business, or
(c) …”

Mr Ghati denies that there had come into being a contract of service between himself as employer and the deceased as worker. Mr Ghati, in the alternative, has argued that Ms Sayan has failed to establish that the deceased was not a casual employee as defined in section 4(1). It is put on behalf of Mr Ghati that there is an onus upon Ms Sayan to prove that factual issue.
The Arbitrator at [130] of Reasons determined that it was more probable than not that there was a contract of service between the deceased and Mr Ghati under which the deceased performed welding work for Mr Ghati, and for which he was paid $100.00 per day. That finding was made following an exhaustive review of the evidence and submissions put on behalf of each party. On this appeal, Mr Ghati relies upon the submissions put before the Arbitrator concerning the issue of ‘worker’ and in written submissions has reiterated his reliance upon the decision of the Court of Appeal in Teen Ranch Pty Ltd v Brown (1995) 11 NSWCCR 197 (‘Teen Ranch’) and that of the High Court in Dietrich v Dare (1980) 30 ALR 407 (‘Dietrich’). It is put by Mr Ghati that there is no evidence of an intention to create legal relations and that the deceased’s presence and conduct at the Glenhaven premises had come about by reason of him being a volunteer. It is disputed by Mr Ghati that there was evidence of any mutuality of obligation as between himself and the deceased.
I respectfully agree with the general observations made by the Arbitrator concerning the state of the evidence. The documentary evidence is conflicting concerning circumstances giving rise to the presence of the deceased upon the Glenhaven premises. There is, on occasion, inconsistency and contradiction to be found in the evidence of individual witnesses. The services of a qualified interpreter had been utilised for the purpose of taking oral evidence before the Arbitrator. Despite the best efforts of the interpreter there is much confusion to be found in the evidence of each of those witnesses. Notwithstanding these difficulties it is necessary on this appeal to review the evidence in light of Mr Ghati’s submissions to determine what was, on the probabilities, the nature of the relationship, if any, between the deceased and Mr Ghati.
The Arbitrator at [128] of Reasons appears to discount the relevance of evidence concerning the advertisement which had been displayed at the Persian supermarket to which the deceased allegedly responded. I respectfully disagree with the Arbitrator’s approach to the evidence concerning this advertisement and her assessment of its relevance to the issues in dispute. In a statement made by Sohrab Tesfan to the New South Wales Police on 8 December 2006 it is stated that the deceased, on 10 November 2006 had informed him that a cousin had given him a telephone number of an individual who was looking for a professional welder. The deceased declared his intention to call the number and Sohrab Tesfan overheard a conversation as noted at [26] above. It is also stated that the following day the deceased informed his son that he had gone to see Khosro. It was that individual named as Khosro who provided the deceased with a map enabling the deceased and his son to locate the Glenhaven address on that night.
Sohrab Tesfan further states that he attended the Persian supermarket on 28 November 2006 at Parramatta and “saw the ad that my father got the phone number from for the job”. A statement by Senior Constable Amber Curtin dated 20 December 2006 was presented to the Coroner and is in evidence before the Commission. Senor Constable Curtin makes reference to being given a piece of A4 paper with Persian writing written in black texta by Sohrab Tesfan who is quoted as saying “the ad says, ‘welder wanted xxxx xxx 419’” Senior Constable Curtin produced that document to the Coroner.
There is in evidence a copy of an email communication between WorkCover Inspector Clyant to Senior Constable Curtin which was sent on 29 June 2007. That email concerned enquiries conducted by Mr Clyant and included was the following observation “other info you may be interested in is Khosro (xxxx xxx 419) the person who put the ad on advertising for a professional welder is answering the phone (his wife answers the phone it [seems] he does not speak English, they do not live at that address you gave me [old address].” It is significant, in my view, that the party identified by the deceased during his conversation with his son in November 2006 was known as Khosro and that such identity appears to have been confirmed by Mr Clyant during the course of his investigations. Other evidence establishes that, notwithstanding notices being served upon the party who had been contacted on the mobile telephone number found in the advertisement, there had been no cooperation or assistance afforded to WorkCover. It is open to inference that, for an unknown reason, a party known as Khosro had acted on behalf of Mr Ghati to seek out the services of a welder. Provision of the map utilised by the deceased and his son to locate the Glenhaven address by that party confirms that the intention of Khosro was to secure the services of a welder to perform work at Mr Ghati’s premises. It is Mr Ghati’s evidence that he had no knowledge of an individual by the name of Khosro nor was he familiar with the telephone number which had been noted on the advertisement. Those denials are to be found in the record of interview between Mr Clyant of WorkCover and Mr Ghati conducted on 29 March 2007. I ascribe little if any weight to that denial given that the general tenor of Mr Ghati’s responses during the course of the interview were vague, unresponsive and there were repeated assertions of lack of recall. On balance on this review I find that it is more probable than not that an individual by the name of Khosro had acted as an intermediary on behalf of Mr Ghati seeking the services of a welder.
The evidence of the widow and her son Sohrab Tesfan suggests that the deceased first attended Mr Ghati’s premises for the purposes of performing work on 13 November 2006. The evidence of Mr Brian Temple is that he had met the deceased at Mr Ghati’s property in “the early part of November 2006”. Mr Temple states that the deceased was “there to do welding at (Mr Ghati’s) property”. It is further stated that the deceased was not at the property every day but “he would go probably three days a week”. Mr Temple questioned Mr Ghati as to whether the deceased was working to which Mr Ghati replied “no, he is just helping me out until I get a welder”.
The evidence of Mr Darkhoen is that he first met the deceased when he attended the Glenhaven premises on 23 November 2006. He observed the deceased doing welding work, making fences. Mr Darkhoen was present on the premises on the day of the deceased’s accident and observed him working carrying out the welding. He was present when the deceased fell but states he did not actually see the fall. There was another person other than Mr Ghati present on the premises at that time being an Egyptian gentleman known as Izzat.
Mr Ghati has given contradictory evidence in statements concerning his first dealings with the deceased in the month of November 2006. Whilst the evidence is to an extent confusing I find on this review that on the probabilities the deceased began attending the Glenhaven premises on a date in early or mid November 2006 for the purpose of carrying out welding work. In so concluding I accept the evidence of Ms Sayan, her son and Mr Temple. It is probable that the commencement date of the work was 13 November 2006. I also find that the deceased attended the premises on a regular basis thereafter up until the date of his death for the purpose of carrying out welding work. I note in passing that there is no evidence from the Egyptian gentleman known as Izzat. The absence of that evidence is explained in a document which is a factual summary prepared by Mr Clyant, Senior Inspector with WorkCover NSW. That summary includes the result of Mr Clyant’s investigation concerning Izzat and it is stated that Izzat had left Australia by Gulf Air for Cairo on 9 January 2007. He had been driven to the airport by Mr Darkhoen in a vehicle owned by Mr Ghati. It is to be noted that Izzat did not inform his wife of his intention to leave the country and that subsequently she reported Izzat as a missing person to the Police. I note that it appears that page three of Mr Clyant’s summary is missing however no submission has been put with respect to the absence of that page.
The question arises as to whether the deceased performed the welding work at Glenhaven as a mere volunteer as alleged by Mr Ghati. The Arbitrator, following a thorough analysis of the evidence, placed considerable reliance upon the recording of the early section of the telephone conversation between the deceased’s son Sohrab Tesfan and Mr Ghati. It was stated at [127] of Reasons:
“I accept that the recording is largely unreliable, however Mr Ghati in his written statement of 30 January 2009 acknowledged that the recording was of his conversation to the point where the recording blurs. Three different interpreters were able to interpret the crucial first few sentences of conversation in which Mr Ghati says he paid Mir Tizfahm ‘one hundred per day’ or ‘one hundred bucks per day’ and owed for two days. I find that more probably than not the reference is to one hundred dollars, and that this is a reference to payment per day for two days rather than to an amount for groceries. I especially note that Mr Ghati says towards the end of the conversation that he also paid $50.00 for petrol.”
I respectfully agree with the Arbitrator’s analysis of the evidence concerning that conversation and her conclusions and I find on this review that there had been an agreement between the deceased and Mr Ghati that the deceased would carry out welding work at the Glenhaven premises in return for payment of $100.00 per day. I do not accept the evidence of Mr Ghati that the deceased was merely helping out.
It is the evidence of Ms Sayan that the deceased had given her, in cash, two sums firstly $450.00 and “in the second week” $650.00. I accept that those sums had been received by the deceased from Mr Ghati in respect of work done since 13 November 2006. Earnings of that quantum correspond approximately to the period during which the work was performed, making allowance for there being two days pay outstanding. The Arbitrator between [111] and [113] of Reasons has addressed the authorities relied upon by Mr Ghati and has distinguished each upon the facts as found by her. I respectfully agree that those authorities do not assist Mr Ghati given the Arbitrator’s conclusion, with which I agree, that the deceased was not a volunteer and that the evidence supports the conclusion that, there being agreement as to payment and the performance of work, there was an intention to enter into legal relations.
It may be seen that I agree with the Arbitrator’s conclusion that Ms Sayan has discharged the onus upon her to prove the existence of a contract of employment between her late husband and Mr Ghati. I have found that such contract had been entered into for an indefinite period. I reject Mr Ghati’s submission that there is an onus upon Ms Sayan to prove that the deceased’s employment was not casual, that is for one period only of not more than five working days. Once evidence is adduced as to the existence of a contract of employment, there is an evidentiary burden which shifts to the putative employer to establish the elements of casual employment which would excluded a worker as defined in the 1998 Act. Those elements are that the employment was for one period only of not more than five working days and that the deceased was employed otherwise than for the purposes of Mr Ghati’s trade or business. Mr Ghati has denied the existence of the contract and there is no evidence that would suggest that the deceased’s engagement was in respect of one period only of not more than five working days. I agree with the observation made by the Arbitrator at [132] of Reasons that “the fact that (the deceased) may have actually worked for less than five days before he had the accident is not material in the absence of any arrangement to work for five days or less”. I reject the arguments advanced by Mr Ghati concerning the suggested requirement of proof of the nature of the contract.

Dependency of Ms Sayan and Agahallah Tizfahm

The entitlement of dependants in the case of the death of a worker as a result of compensable injury is, on the present facts, prescribed by the provisions of former sections 25 and 26 of the 1987 Act. Those sections, at that time (excepting indexed money amounts), provided:
“25 Death of worker leaving dependents
(1) If death results from an injury, and the worker leaves any dependants wholly dependent for support on the worker, the amount of compensation payable by the employer under this Act shall be:
(a)the amount of $211,850, and
(b)in addition, an amount of $66.60 per week in respect of:

(i)each dependent child of the worker under the age of 16 years, and

(ii)each dependent child of the worker being a student over the age of 16 years but under the age of 21 years.

(2) Payments in respect of a dependent child under subsection (1) (b) shall continue:
(a)except as provided by paragraph (b) – until the child dies or reaches the age of 16 years, whichever first occurs, or
(b)in the case of a dependent child who is a student at the time of the worker’s death or after reaching the age of 16 years – until the child dies, reaches the age of 21 years or ceases to be a student, whichever first occurs.

(3) The amount of any weekly payments, or other compensation payable under this Act, shall not be deducted from the amounts referred to in subsection (1) (a) or (b).
(4) If an amount mentioned in subsection (1) (a) at any time after the commencement of this Act:

(a) is adjusted by the operation of Division 6, or
(b) is adjusted by an amendment of this section,

the compensation payable under subsection (1) (a) is to be calculated by reference to the amount in force at the date of death.
(4A) If the death of a worker results both from an injury received before the adjustment of an amount mentioned in subsection (1) (a) and an injury received after that adjustment, the worker shall, for the purposes of section (1) (a), be treated as having died as a result of the injury received after that adjustment.
(5) In this section:
“child of the worker” means a child or stepchild of the worker and includes a person to whom the worker stood in the place of a parent.
“dependent child of the worker” means a child of the worker who was wholly or partly dependent for support on the worker.
“student” means a person receiving full-time education at a school, college or university.
26 Death of worker leaving partial dependants

If death results from an injury and the worker does not leave any dependants wholly dependent upon the worker for support, but leaves dependants in part so dependant, the compensation payable by the employer under this Act shall be:
(a)if the employer so agrees-the amount that would have been payable under section 25 if those dependants had been wholly dependent on the worker,
(b)if agreement is reached for the payment of an amount less than the amount provided by paragraph (a) and the amount agreed on is approved by the Commission as reasonable and proportionate to the injury to those dependants-the amount so approved, or
(c)in default of agreement as to the amount to be paid or in default of approval by the Commission for payment of an agreed amount under paragraph (b)- such amount (not exceeding the amount provided by paragraph (a) as is determined by the Commission to be reasonable and proportionate to the injury to those dependants.”

Mr Ghati challenges the Arbitrator’s findings that both Ms Sayan and her son were wholly dependent upon the deceased at the time of his death. The Arbitrator addressed the evidence relevant to the issue of ‘dependency’ between [133] and [150] of Reasons. At [139] the Arbitrator noted the evidence that at the time of death the deceased had received a disability pension for some years and that Ms Sayan had received a disability support pension or carer’s pension. Following a summary of submissions the Arbitrator proceeded to state (at [144]):
“To my mind Ms Sayan only received a carer’s pension at all because of Mr Tizfahm’s entitlement to a disability pension. In the absence of her husband, Ms Sayan would not have been entitled to receive the carer’s pension. The two pensions appear to me to be inextricably linked and constitute a total income solely referable to Mr Tizfahm. It is reasonable to assume that Ms Sayan lost her eligibility to receive that particular type of pension when her husband died”.
The Arbitrator (at [145]) proceeded to find that Ms Sayan was wholly dependent upon the deceased for support at the time of his death “despite on the face of it receiving a pension in her own name and that she was therefore entitled to the maximum amount of lump sum compensation available at the date of [the deceased’s death] pursuant to former section 25”. Having regard to that finding, an award was made in favour of Ms Sayan with respect to the payment of the relevant maximum lump sum entitlement being $319,250.
The Arbitrator proceeded to summarise the evidence concerning the activities of Agahallah Tizfahm. Reference was also made to Ms Sayan’s evidence that at the time of the deceased’s death both she and her son were fully financially dependent upon the deceased. The Arbitrator proceeded (at [150]) to find that the son Agahallah was a student wholly dependent on the deceased between 27 November 2006 until the third week of December 2006 and between 15 February 2008 and 7 May 2008. Those periods identified by the Arbitrator were, on the evidence, times at which Agahallah was a full time student.
The correctness, or otherwise, of the Arbitrator’s findings with respect to the issue of dependency requires an examination of the evidence which I have attempted to summarise at [47] and [48] above. It may be seen that such evidence is scant. There is no evidence before the Commission concerning the quantum of the pension payments received by each of the deceased and Ms Sayan; there is no evidence of the quantum of any allowance paid to Ms Sayan in respect of the support of Agahallah; there is no evidence as to how that situation may have changed, that is the quantum of any reduction of support from the Commonwealth following the death of the deceased; there is no evidence as to the probable cost of maintaining the deceased from the modest resources obtained from the Commonwealth. Nothing is known as to the domestic circumstances of the family, that is whether any of Agahallah’s siblings were residing with their parents in the housing commission flat accomodation prior to the death of the deceased. There is no evidence as to the existence or otherwise of any capital sums controlled by the deceased or otherwise, nor as to any contribution to the needs of the family by the three elder children. All that is known is that both the deceased and Ms Sayan had the benefit of Commonwealth pensions and, as stated by Ms Sayan in her statement of 2 February 2009, those payments were pooled together.
The entitlement of dependants in New South Wales to compensation benefits in the case of death of a worker has, since amendments in 1964 to the then relevant statute, the Workers Compensation Act 1926 (‘the 1926 Act’), been founded upon proof of dependency for support. Prior to that amendment, the former Act required proof of dependency upon earnings. The consequences of that amendment were considered by Ferrari.J in Cooper v Commissioner for Railways [1972] WCR 47 (‘Cooper’) where it was stated (at 48 and 49):
“It appears to me that the effect of the substitution of dependency for support in place of dependent upon earnings is to extend the right to compensation so as to encompass dependants of the deceased who drew their support from him but out of sources other than his earnings”.
Having regard to what was said in Cooper I am of the view that it is appropriate in this matter, when considering the existence or otherwise of dependency and whether such is total (whole) or partial, that account should be taken of that evidence concerning the performance by the deceased of sundry services about the home as well as that evidence which suggests that some support was afforded by the pooling of the deceased’s pension income with that of Ms Sayan. As was stated by Ferrari J in Cooper, the death of the deceased resulted in the loss of the benefit of the support from the deceased that arose from the joint sharing of expenses.
As was stated by McTiernan J in Aafjes v Kearney [1975-1976] 180 CLR 199 (‘Aafjes’) (at 205) “whether the relation of dependency exists, and if it does, whether the dependency is total or partial are questions of fact.” The task confronting the Arbitrator and the Commission on this Appeal may be guided, in my view by that which was said by Gibbs J in Aafjes (at 208):
“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 (Lee v Munro [1928], 21 BWCC 401, at p 408)”.
I am of the view that consideration of ‘past events and future probabilities’ is relevant both to the question of the existence or otherwise of dependency and to the question of the extent of dependency, that is, whether it be whole or partial. (cf Grant v Dick Benbow and Associates [2000] 20 NSW CCR 484 (per Burke.J) at [14]).
As for past events, it is not disputed that the deceased, apart from the work performed at the time of his death, had never secured paying work in this country. He had been certified by Dr S Eshragi in 1998 as suffering severe spinal disability and depression. That certification included a notation that the deceased had suffered injury as a result of “religious discrimination by authorities in Iran. He was tortured badly”. That history contrasts with that stated by Sohrab Tesfan and Ms Sayan in their evidence, however no submission by either party has been made on that subject. Whatever the cause of disability, it is clear that Dr Eshragi was of the view that the deceased as at August 1998 was unable to be rehabilitated and was unemployable.
Dr Eshragi again certified in August 2003 that the deceased suffered from depression, lack of concentration, insomnia and difficulty coping with his daily activities as well as significant orthopaedic disability which conditions were deteriorating. It was that practitioner’s opinion that the deceased could not do forceful physical activity nor could he walk or stand for more than half an hour.
The clinical notes of Dr Eshragi demonstrate, on any reading, that the deceased up to the time of his death was in very poor health.
Having regard to the matters revealed in the clinical notes I conclude that, just as the deceased had not worked for years up to the date of death, it was probable, had he not been injured, that upon completion of the work for Mr Ghati he would have remained unemployed and in receipt of his pension. In so finding on this review, I reject the evidence of Ms Sayan and her son concerning the deceased’s intentions to return to the workforce.
I have earlier observed that the state of the evidence concerning the economic and domestic circumstances which prevailed in the household of the deceased prior to his death is very limited. Doing the best I can with the evidence as it stands I have reached the view that the Arbitrator’s finding that Ms Sayan and her son were totally dependent at the time of the deceased’s death was made in error. It seems that the only tangible and quantifiable support lost to Ms Sayan and her son upon the death of the deceased is the advantage gained from having the pensions pooled and the value of the sundry services performed by the deceased in and about the home for the benefit of the family. The facts, as they stand in evidence, would, in my view, support a conclusion that Ms Sayan and her son were each partially dependent upon the deceased at the date of his injury and subsequent death.
In the circumstances the entitlement to compensation that Ms Sayan and her son may have is to be determined having regard to the provisions of the former section 26 of the 1987 Act. The Commission is to determine a sum that is reasonable and proportionate to the injury which has occurred to the dependants.
Given the finding on this review of partial dependency of both Ms Sayan and her son, the necessity arises for the revocation of the orders made by the Arbitrator pursuant to section 25 of the 1987 Act. Those orders are to be substituted with an order with respect to payment of a lump sum and weekly payments pursuant to section 26.
As noted by the Arbitrator there is no application before the Commission for apportionment of any lump sum which may be found to be payable following the death of the deceased. Having regard to the state of the evidence before the Commission calculation of Ms Sayan’s entitlement pursuant to section 26 presents considerable difficulty. The pooling of the pensions would likely, in my opinion, benefit Ms Sayan and her son in an amount of $50.00 per week. Determination of this sum is necessarily somewhat arbitratory however such extrapolation based upon the limited facts is permissible: Warilla Timber and Hardware v Newton [1995] 11 NSWCCR 546 per Mahoney A-P at 549 (‘Warilla Timber’).
It becomes necessary to attempt an evaluation of the worth to the partial dependants of the deceased’s work about the house. Such an allowance is permissible: Government Insurance Office (NSW) v Cox [1976] 50 ALJR 559. Doing the best I can with the evidence before the Commission I would evalue the performance of such activity in the sum of $30 per week.
The deceased at the time of his death was 54 years of age. Having regard to the life expectancy tables a male person of such age then had a life expectancy of approximately 28 years. The present value of an income of $80.00 per week over a period of 28 years with reference to the relevant Tables (5%) is $63,728.00. As was stated by Mahoney JA in Warilla Timber (at 552) “[I]t would be wrong merely to do a mathematical present value calculation of [the weekly amount over the relevant period]. The figure must be reduced to a present-day basis and allowance must be made for contingencies”. Having regard to the evidence concerning the frailty of the health of the deceased it may not be expected that his assistance about the home would have continued indefinitely and there was some prospect that his poor health would shorten his lifespan as may otherwise be expected. I determine on this review that the amount payable to Ms Sayan, being a sum reasonable and proportionate to the injury caused by the death of the deceased is the sum of $48,000.00. An award in that sum is to be made in favour of Ms Sayan pursuant to section 26 of the 1987 Act.
As to liability for weekly payments, I consider that the better view of the construction of section 26 leads to the result that, upon a finding of partial dependency of a child, the weekly amount payable should be the full amount that would have been payable under section 25 if the dependant, Agahalla Tizfahm, had been wholly dependant upon the deceased (see discussion concerning section 8(1) and section 8(2) of the 1926 Act, Professor CP Mills text New South Wales Workers Compensation, Butterworths, second edition at [181]). I agree with the Arbitrator’s findings as to the periods of entitlement, and appropriate orders are to be made.
No argument has been advanced on this appeal concerning payment of medical expenses as claimed before the Arbitrator which led to the entry of an award with respect to payment of same. In the circumstances the Arbitrator’s order is to be confirmed. Having regard to my finding as to partial dependency Mr Ghati remains liable with respect to payment of funeral expenses pursuant to the provisions of section 27A of the 1987 Act as in force at the date of the deceased’s death. Accordingly the Arbitrator’s order with respect to such expenses is to be confirmed on this Appeal.
It is beyond doubt that the correct date of death of the deceased was 30 November 2006. That date is to be ascertained having regard to the evidence that was tendered before the Coroner. The Arbitrator at [1] of the Certificate of Determination has mis-stated that date and that error may be corrected on this Appeal. I note in passing that the death certificate issued pursuant to the Births Deaths and Marriages Registration Act 1995 states that the deceased’s date of death was 27 November 2006. That, again, is a mis-statement of the fact and steps should be taken to correct the state of the record.
The Appeal is, in part, successful and the Arbitrator’s determination requires amendment in accordance with the orders which appear below.

DECISION

Paragraphs one, two and three of the Arbitrator’s determination dated 27 May 2009 are revoked and, in their place the following findings and orders are made:
“1. The late Farhang Tizfahm Mindoab died on 30 November 2006 as a result of injuries arising out of or in the course of employment with Abraham Seda Ghati.
2. At the time of the deceased’s death Parvin Najafian Sayan and Agahalla Tizfahm were each partially dependent upon the deceased for support. There were no other persons dependent upon the deceased.
3. The second respondent Abraham Seda Ghati , pursuant to former section 26 of the Workers Compensation Act 1987, is to pay the sum of $48,000.00 to Parvin Najafian Sayan and weekly compensation in respect of Agahalla Tizfahm at the rate of $100.40 per week from 29 November 2006 to 20 December 2006, and at the rate of $104.10 per week from 15 February 2008 to 31 March 2008 and $106.20per week from 1 April to 7 May 2008. Such sums are to be paid directly to Parvin Najafian Sayan.
Paragraphs four, five, six, seven, eight, nine and ten of the Arbitrator’s determination dated 27 May 2009 are confirmed, subject to the amendment of the date of death appearing in paragraph five to state: “30 November 2006”.

COSTS

The appellant has succeeded on Appeal to have the quantum of the compensation ordered by the Arbitrator reviewed and reduced. Ms Sayan has retained an award in her favour with respect to death benefits as provided by the 1987 Act. In the circumstances, in the exercise of the Commission’s discretion as to costs, I order that the appellant pay Ms Sayan’s costs of this Appeal and those costs of this Appeal of the second respondent. Such costs should be paid by the WorkCover Authority of New South Wales, acting for the Nominal Insurer, and the appellant is to reimburse that Insurer in respect of such payment. The Arbitrator’s certification of complexity which appears at the foot of her Certificate of Determination dated 27 May 2009 is confirmed on this Appeal.

Kevin O’Grady
Deputy President
14 July 2010

I, MARIE JOHNS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE