ACN v Secretary, Department of Communities and Justice
[2021] NSWPIC 511
•9 November 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | ACN v Secretary, Department of Communities and Justice [2021] NSWPIC 511 |
| APPLICANT: | ACN |
| FIRST RESPONDENT: | Secretary, Department of Communities and Justice |
| SECOND RESPONDENT: | ACO by their tutor AXX |
| THIRD RESPONDENT: | ACP by their tutor BXX |
| MEMBER: | Catherine McDonald |
| DATE OF DECISION: | 9 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Apportionment of the death benefit; payment of interest; amounts payable to minors to be held in trust; Held – apportionment and trust deed approved. |
| DETERMINATIONS MADE: | 1. Wayne Montgomery (Wayne) died on 11 September 2018 as a result of an injury suffered in the course of his employment with the first respondent. 2. ACN, ACO and ACP were partially dependent on Wayne for support at the time of his death. 3. By consent and under s 29 of the Workers Compensation Act 1987 (the 1987 Act) the death benefit of $791,850 is to be apportioned: (a) ACN - $566,850; (b) ACO - $100,000, and (c) ACP - $125,000. 4. By consent, the first respondent is to pay interest under s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) at the rate of 2.5% per year on the amounts in order 3 from 29 January 2021 to date. 5. Under s 85A of the 1987 Act, the first respondent is to pay $566,850 plus pro rata interest to ACN. 6. Under s 85A of the 1987 Act and on execution of the deed which is Annexure A to these reasons, the amount apportioned to ACO, plus pro rata interest, is to be paid to ACN to be held on trust for ACO in accordance with that deed. 7. Under s 85A of the 1987 Act and on execution of the deed which is Annexure B to these reasons, the amount apportioned to ACP, plus pro rata interest, is to be paid to ACN to be held on trust for ACP in accordance with that deed. 8. Pursuant to rule 132 of the Personal Injury Commission Rules, and of my own motion, I direct that Annexures A and B be redacted before the decision is published. I grant liberty to apply in case the parties seek any other order about publication. |
STATEMENT OF REASONS
BACKGROUND
Wayne Montgomery died on 11 September 2018 as a result of an injury suffered in the course of his employment with the Department of Communities and Justice (the Department).
Wayne’s wife, ACN, and their children, ACO and ACP were partially dependent on Wayne for support at the time of his death.
PROCEDURE BEFORE THE COMMISSION
The proceedings were listed for telephone conference on 7 October 2021. The parties told me that funeral expenses had been paid and that weekly payments under s 25(2) of the Workers Compensation Act 1987 (the 1987 Act) were being made in respect of ACO and ACP.
The parties told me at the telephone conference that the issues to be resolved were the apportionment of the death benefit and the payment of interest. They also told me that they requested that the sums apportioned to ACO and ACP be paid to ACN to be held in trust. I requested that they prepare appropriate trust deeds.
The matter was fixed for conciliation conference and arbitration hearing by videoconference on 5 November 2021. Mr Hunt of counsel appeared for ACN, Mr Kreig, solicitor, appeared for the Department, Mr Hammond of counsel appeared for ACO and Mr Brazel of counsel appeared for ACP. AXX was informally appointed as a tutor for ACO and BXX was informally appointed as a tutor for ACP.
Before the conciliation conference the parties had agreed on apportionment of the death benefit of $791,850 being:
(a) ACN - $566,850;
(b) ACO - $100,000, and
(c) ACP - $125,000.
At the conciliation conference, the parties agreed that interest should be payable at the rate of 2.5% from 29 January 2021 to date. The agreed commencement date is the date on which records from Wayne’s general practitioner were provided to the Department’s representatives, allowing the Department to accept liability.
FINDINGS AND REASONS
It is unnecessary in the circumstances of this case to set out the evidence on which the parties rely.
ACN provided a detailed statement and I am satisfied on the evidence provided that no one else was dependent on Wayne for support at the date of his death.
I am also satisfied that the proposed apportionment is appropriate, taking into account the medical needs and study aspirations of ACO and ACP disclosed in the evidence.
The agreement of the parties about interest is consistent with decisions of the Commission. The claim commences on the date that the Department’s insurer had all of the information to allow it to determine that the death benefit was payable. That is the date on which the claim was effectively “duly made” in accordance with s 109(2)(b) of the 1998 Act[1].
[1] Kaur v Thales Underwater Systems Pty Ltd [2011] NSWWCCPD 6.
The agreed rate of interest is less than the rates payable under the Uniform Civil Procedure Rules. In Ruby v Marsh[2] Barwick CJ described the purpose of an award of interest on damages:
“The purpose of giving courts the power to award interest on damages is to my mind twofold, and neither aspect of the purpose should be lost sight of. In the first place, the successful plaintiff, who by the verdict has been turned into an investor by the award of a capital sum, and whose claim in the writ has been justified to the extent of the verdict returned, ought in justice to be placed in the position in which he would have been had the amount of the verdict been paid to him at the date of the commencement of the action. In the second place, the power to award interest on the verdict from the date of the writ is to provide a discouragement to defendants, who in the greater number of actions for damages for personal injuries are insured, from delaying settlement of the claim or an early conclusion of proceedings so as to have over a longer period of time the profitable use of the money which ultimately the defendant agrees or is called upon by judgment to pay. Each of these reasons, incidentally, in my opinion, calls for the judge to award a rate of interest related to the market place subject to the limit allowed by the legislature. There can be no basis for the award of some nominal rate of interest, unless of course there is good cause for so doing in the special circumstances of the particular case.”
[2] [1975] HCA 32; (1975) 132 CLR 642.
I agree that the rate of 2.5% is appropriate.
Trust Deeds
ACN sought that she hold the money apportioned to ACO and ACP on trust for them. ACN is a legal practitioner and I am satisfied that she understands her responsibilities as a trustee. AXX is a practising accountant and she and BXX are ACN’s longstanding friends.
The usual order made by the Commission is that the amount apportioned to children under 18 is to be paid to the NSW Trustee and Guardian, under s 85 of the 1987 Act. Before making any other order, the Commission must be satisfied that the deed has sufficient safeguards to make sure that the money will be used solely for the benefit of ACO or ACP.
At the telephone conference, I asked the parties to ensure that the trust deeds prepared allowed a narrow discretion, taking into account the provisions of s 85 into account and ensuring that the trust funds can be used only for the benefit of the relevant beneficiary. I am satisfied that the deeds fulfil those requirements.
The evidence shows that ACO and ACP are high achieving students with well-developed plans for tertiary study.
Each deed provides that the trust will terminate when the beneficiary turns 18. In ACO’s case, that is early next year.
The deeds provide for the use of the money only for the needs of the relevant beneficiary.
I am satisfied that it is appropriate that the money apportioned to ACO and ACP be held on trust by ACN until the termination date of each trust deed.
I note that clause 6 of Annexure A requires amendment before the deed is executed to replace “my” with “the”.
The Commission publishes its decisions under rule 131 of the Personal Injury Commission Rules. Rule 132(1) provides:
“132 De-identification or redaction of publishable decisions
(1)The Commission or the President may, of their own motion or on the application of a relevant person, direct either or both of the following—
(a)that all or part of a publishable decision be de-identified before it is published,
(b)that part of a publishable decision be redacted before it is published.”
I have attempted to avoid including in this decision any personal information other than what is absolutely necessary to support the orders made. Though the parties did not make an application, I consider that Annexures A and B should be redacted before publication. I grant liberty to apply in case the parties seek any other order about publication.
For these reasons, I make the orders set out on page 1 of this Certificate for Determination.
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