| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Ali Kanj v Nonabel Concrete Pty Ltd [2018] NSWWCCPD 43 | |
| APPELLANT: | Mayssoun Ali Kanj | |
| FIRST RESPONDENT: | Nonabel Concrete Pty Ltd | |
| SECOND RESPONDENT: | Fatme Obeid | |
| THIRD RESPONDENT: | Ali Jamal | |
| FOURTH RESPONDENT: | Sari Jamal | |
| INSURER: | AAI LTD trading as GIO – Agent for the Worker’s Compensation Nominal Insurer | |
| FILE NUMBER: | A2-2125/17 | |
| ARBITRATOR: | Mr B Batchelor | |
| DATE OF ARBITRATOR’S DECISION: | 22 May 2018 | |
| DATE OF APPEAL DECISION: | 4 October 2018 | |
| SUBJECT MATTER OF DECISION: | Admission of new evidence – D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 applied; dependency; s 25(1) of the WorkersCompensation Act 1987 (the 1987 Act) –principles in Henderson v Foxworth Investments Ltd [2014] UKSC 41; SLT 775; 1 WLR 2600 applied; the exercise of discretion in apportioning the compensation payable in accordance with s 29 of the 1987 Act – Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 applied | |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Crowther Sim Lawyers |
| First Respondent: | McCabe Curwood | |
| Second Respondent: | Slater and Gordon Lawyers | |
| Third Respondent: | Self-represented | |
| Fourth Respondent: | Turner Freeman | |
| ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 22 May 2018 is confirmed. | |
INTRODUCTION
These proceedings concern claims against Nonabel Concrete Pty Ltd (Nonabel) in respect of the death of Souhayb Jamal (the deceased). The deceased died on 28 March 2017 as a result of injury received in the course of his employment with Nonabel on 27 March 2017.
The claims were for the lump sum death benefit provided for in s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act), which was $765,650 as at the date of death.
Mr Ali Jamal, Ms Mayssoun Ali Kanj (also referred to as Ms Mayssoun Al Kanj), Mrs Fatme Obeid and Ms Sari Jamal all alleged that they were at least partly dependent on the deceased at the date of death.
This appeal, which is brought by Ms Ali Kanj, is an appeal from a decision of Arbitrator Batchelor dated 22 May 2018 which is the same decision that was the subject of appeal in Jamal v NonabelConcrete Pty Ltd,[1] brought by Mr Ali Jamal.
[1] [2018] NSWWCCPD 42 (Jamal v Nonabel).
BACKGROUND
Ms Ali Kanj was the deceased’s sister. Ms Sari Jamal was also a sister of the deceased. Mr Ali Jamal is the deceased’s father. Mrs Obeid, the deceased’s mother, was previously married to Mr Jamal. They had separated more than twenty years prior to these proceedings.
There were a number of other siblings of the deceased and as Mr Jamal had remarried, there were also seven half siblings. None of those other siblings claimed dependency.
Ms Ali Kanj was the only claimed dependant living in Australia. Each of the remaining prospective dependants live in Lebanon. Mrs Obeid and Ms Jamal resided together.
The deceased had been employed with Nonabel for only about one week when the injury occurred,…
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- Case
- [2018] NSWWCCPD 43
- Decision Date
CaseChat Overview and Summary
The court concluded that the new evidence Kanj wished to present was not admissible because it did not meet the criteria outlined in D’Orta-Ekenaike. The court also found that the Workers Compensation Assessment Officer had correctly assessed the degree of dependency in accordance with the principles from Henderson and had exercised the discretion in apportioning compensation appropriately under the guidelines provided by Micallef. The court confirmed the Certificate of Determination, affirming the decision of the Workers Compensation Assessment Officer.
Orders
Orders of the court
1. The Certificate of Determination dated 22 May 2018 is confirmed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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