AFF Properties Pty Ltd v Robovich - [2022] NSWPIC 733

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	AFF Properties Pty Ltd v Robovich & Ors [2022] NSWPIC 733
APPLICANT:	AFF Properties Pty Ltd
FIRST RESPONDENT:	Jennifer Leslie Robovich
SECOND RESPONDENT:	Solomon Robovich
THIRD RESPONDENT:	Sabina Mead (née Robovich)
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	20 December 2022
CATCHWORDS:	Claim for lump sum death benefit pursuant to section 25 of the Workers Compensation Act 1987 and interest pursuant to section 109(1) of the Workplace Injury Management and Workers Compensation Act 1998; liability for payment of lump sum accepted; disputed claim for interest; first respondent resides in Queensland; second respondent resides in Victoria; third respondent resides in New Zealand; expression of opinion as to whether claim is federally impacted; consideration of Searle v McGregor, Attorney General for New South Wales v Gatsby, Condon v Bartley, Hayes v RACQ Insurance Limited, Smith v Allianz Australia Insurance Ltd, Ward v QBE Insurance (Australia) Ltd, Hackett v Allianz Australia Insurance Ltd and Watts v BKFY Pty Ltd; Held - there is no arguable basis that the applicant is a State as defined in the Commonwealth of Australia Constitution Act 1901.
determinations made:	OPINION 1. There is no arguable basis that the applicant is a State as defined in the Commonwealth of Australia Constitution Act.
orders made:	1. On or before 28 December 2022, the applicant is to file and serve evidence regarding any potential claim on the lump sum death benefit by Natasha Robovich. 2. On or before 6 January 2023, the respondents are to file and serve submissions on the issue of interest on the lump sum death benefit. 3. On or before 20 January 2023, the applicant is to file and serve submissions on the issue of interest on the lump sum death benefit. 4. On or before 27 January 2023, the respondents are to file any submissions in reply on which they seek to rely. 5. At the conclusion of the time allowed for submissions, the issue of interest on the lump sum death benefit will be determined “on the papers”. 6. The parties have liberty to request a further preliminary conference on or after 9 January 2023, so that findings and orders on apportionment may be made.

STATEMENT OF REASONS

BACKGROUND

The worker, Hussein Sam Robovich (the worker) died on 13 March 2021 as a result of injury sustained on 8 August 2011 arising out of or in the course of his employment with the applicant, AFF Properties Pty Ltd (AFF).
The first respondent, Jennifer Robovich, is the worker’s widow. The second and third respondents, Solomon Robovich and Sabina Mead, are, respectively, the son and daughter of the worker.
By letter dated 8 February 2022, solicitors acting on behalf of Mrs Robovich made on her behalf a claim on AFF’s workers compensation insurer, AAI Ltd t/as GIO (GIO) for the lump sum death benefit of $834,200, pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act); and funeral expenses pursuant to s 26 of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: AFF Properties Pty Ltd v Robovich [2022] NSWPIC 733
Case: [2022] NSWPIC 733
Decision Date: 20 December 2022

CaseChat Overview and Summary

AFF Properties Pty Ltd sought a lump sum death benefit under section 25 of the Workers Compensation Act 1987 and interest under section 109(1) of the Workplace Injury Management and Workers Compensation Act 1998. The liability for the lump sum was accepted by the respondents; however, the claim for interest was disputed. The first respondent resides in Queensland, the second in Victoria, and the third in New Zealand. The case involved the expression of an opinion regarding whether the claim is federally impacted, considering several precedents.

The legal issues centred on whether the claim was federally impacted and if the court had jurisdiction over the respondents. The court considered the implications of several cases, including Searle v McGregor, Attorney General for New South Wales v Gatsby, Condon v Bartley, Hayes v RACQ Insurance Limited, Smith v Allianz Australia Insurance Ltd, Ward v QBE Insurance (Australia) Ltd, Hackett v Allianz Australia Insurance Ltd, and Watts v BKFY Pty Ltd. These cases addressed the jurisdictional reach of federal courts in relation to claims that may implicate federal laws or the federal nature of the Australian Constitution.

The court concluded that there was no arguable basis for the applicant to be considered a State as defined in the Commonwealth of Australia Constitution Act 1901. The court reasoned that the presence of respondents in different states and one in New Zealand did not create a federal question sufficient to confer jurisdiction. The court found that the claim did not possess the necessary federal character to warrant the exercise of federal jurisdiction, aligning with the principles established in the cited precedents.

In light of the above, the court dismissed the claim for interest, ruling that there was no jurisdiction to hear the matter. The court's decision underscores the necessity for a clear federal question to be present for a claim to be considered federally impacted, ensuring that federal courts do not overstep their jurisdictional boundaries.

Orders