Ali Kanj v Nonabel Concrete Pty Ltd - [2018] NSWWCCPD 43

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, and this was his first employment since he had arrived in Australia some months previously. While in Australia, he lived with Ms Ali Kanj, who was estranged from her husband and had two small children.
Nonabel filed an Application in Respect of Death of a Worker (the application) on 2 May 2017, seeking apportionment of the lump sum benefit. A number of telephone conferences were conducted and directions were issued by the Arbitrator to ensure that all potential dependants were notified of the proceedings and given the opportunity to make a dependency claim. The matter proceeded to arbitration on 30 April 2018.
In his Certificate of Determination (COD), the Arbitrator apportioned the lump sum death benefit as follows:
(a)    Ms Ali Kanj – $229,695.00;
(b)    Mrs Obeid – $459,390.00, and
(c)    Ms Jamal – $76,565.00
The Arbitrator found that he was not satisfied that Mr Jamal was dependent on the deceased.
Both Mr Jamal and Ms Ali Kanj appealed the Arbitrator’s determination. Mr Jamal’s appeal has been dealt with separately.[2]
[2] Jamal v Nonabel.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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.”
I have had regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that is the appropriate course in the circumstances.

THRESHOLD MATTERS

Ms Ali Kanj filed her appeal within the time prescribed by s 352(4) of the 1998 Act. The monetary threshold required to appeal pursuant to s 352(3) of the 1998 Act is also satisfied.

New evidence

Both Ms Ali Kanj and Mr Jamal seek to adduce further evidence in this appeal.
Ms Ali Kanj seeks to adduce new evidence in the form of a statement written in Arabic from Amin Jamal, the deceased’s older brother. Ms Ali Kanj provided a certified translation of the document.
Mr Amin Jamal resides in Dubai and attests to the deceased’s living arrangements while the deceased also lived there. Ms Ali Kanj says that the evidence from Amin Jamal was not required in the arbitral proceedings as there was “never an issue with the employment of the deceased in Dubai”.[3]
[3] Ms Ali Kanj’s submissions, Part A [2.5].
Mr Amin’s evidence is that:
(a)    he worked in his uncle’s company in the United Arab Emirates;
(b)    the deceased stayed with him in Dubai for three years, during which time the deceased never worked at all;
(c)    during that period, he and his uncle supported the deceased by providing him with money for his expenses;
(d)    the deceased never spent any money on his father, his mother or his sister;
(e)    he (Mr Amin Jamal) sent money to his family on a monthly basis, and
(f)    before the deceased went to the United Arab Emirates, the deceased did not live with Mrs Obeid because he was unemployed and unable to contribute to his mother’s expenses.
Section 352(6) of the 1998 Act provides that I may admit evidence on the appeal only if I am satisfied that the evidence was not available, and could not have been reasonably obtained, prior to the proceedings before the Arbitrator, or that failure to admit the document would cause substantial injustice in the case. That is, there are two alternate thresholds, one of which must be satisfied before I can exercise my discretion to admit the document.
It is contended by Ms Ali Kanj that the document addresses the allegations made by Mr Jamal that the deceased earned a high income in Dubai and that the deceased sent Mr Jamal and Mrs Obeid money. Both Mr Jamal’s evidence and Mrs Obeid’s evidence to that effect was evidence in the proceedings before the Arbitrator and the veracity of that evidence was always challenged by the remaining respondents. Ms Ali Kanj does not say that there was any difficulty in obtaining that evidence to put before the Arbitrator, therefore it cannot be said that the document could not have been reasonably obtained at that stage.
Therefore, I need to consider whether the failure to admit the statement causes a substantial injustice in the case.
In D’Orta-Ekenaike v Victoria Legal Aid,[4] the plurality, (Gleeson CJ, Gummow, Hayne and Heydon JJ) said:
“A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few narrowly defined, circumstances. ...
The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called ‘fresh evidence rule’) are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: ‘[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.’”[5]
[4] [2005] HCA 12; 223 CLR 1 (D’Orta-Ekenaike).
[5] D’Orta-Ekenaike, [34] and [35].
An appeal to a Presidential member of the Commission is limited to a determination of whether the Arbitrator’s decision is affected by an error of fact, law or discretion. Arbitrations are not a trial run, and the parties must live with the consequences of the forensic choices they make at first instance.[6]
[6] Super Retail Group Services Pty Ltd v Uelese [2016] NSWWCCPD 4, [92].
A party who fails to provide a trial judge (or in this case an Arbitrator) with appropriate assistance in relation to the evidence should expect to have a difficult time in persuading an appellate tribunal that a different approach to the evidence should be taken.[7]
[7] Caruana v Darouti [2014] NSWCA 85 per McDougall J (Leeming JA agreeing), [124] and [125].
In my view, the document could not be described as “compelling” evidence that, if admitted, would be likely to affect the outcome of the case.[8] In the absence of the documents sought to be adduced on appeal from Mr Jamal in this appeal (discussed below), and in the absence of any fresh issues raised in this appeal, I cannot see how the failure to admit this evidence would create a “substantial injustice” as is required before I can exercise my discretion in favour of Ms Ali Kanj. In fact, the admission of the document would cause substantial prejudice to both Mr Jamal, Ms Jamal and Mrs Obeid. If it were admitted, each party would have to be afforded the opportunity to address the matters raised by Mr Amin Jamal by testing the evidence and potentially adducing evidence in response. That would amount to a re-hearing in contravention of s 352(5) of the 1998 Act.
[8] CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501, [27]–[32].
The probative value of the document, and whether the admission of the document would likely result in a different outcome, cannot be assessed in the absence of affording the other parties the opportunity to address the evidence. The document is not admitted.
Mr Jamal (in this appeal) seeks to have admitted two further documents, both of which were written in Arabic, and English translations have been provided.
The first document is said to be from Fadi Foz El Samad, who confirms that while he was in Dubai, every six months the deceased would give him 6,000 Arab Emirates dirhams to give to Mr Jamal.
The second document is said to be from Mr Jamal’s brother-in-law Abdulmajid Obeid (the brother of Mrs Obeid) and asserts that he witnessed the deceased send 6,000 dirhams for his father every six months and the money was brought by Mr Fadi Foz El Samad. Mr Obeid says that Mr Jamal is a person of good character and reputation, who is generous and who loves his children. Mr Obeid says that his sister became angry when she found out about the money being sent to Mr Jamal by the deceased.
Both documents were obtained by Mr Jamal in July 2018, after the Arbitrator issued his decision. There is no reason put forward by Mr Jamal as to why the documents could not have been obtained and relied on in the arbitral proceedings. I am satisfied that, with reasonable diligence, the additional evidence now sought to be tendered could have been obtained prior to the arbitration.
Whether the documents, if considered by the Arbitrator, would have likely produced a different outcome cannot be judged until the probative value of the document is established. As with the documents sought to be adduced by Ms Ali Kanj, the probative value of the documents can only be assessed by giving the parties to the proceedings the opportunity to test and respond to the allegations made. To deny them that opportunity would result in substantial injustice. In order to permit that opportunity, further evidence and submissions would be required. Such a course constitutes a re-hearing. I repeat my earlier observations that an appeal to a Presidential member is limited to identification of error of fact, law or discretion on the part of the Arbitrator and is not a review or re-hearing.
In the circumstances, it cannot be said that the document is so persuasive that, if admitted, it would result in a different outcome. I decline to admit the documents.
Mr Jamal also seeks to tender a marriage contract dated 15 December 1999 between Ms Ali Kanj and her estranged husband. Given the circumstances in which they remain separated, the document is not relevant to any issue either before the Arbitrator or raised on this appeal. The document is not admitted.

THE EVIDENCE

Ms Ali Kanj’s evidence

Ms Ali Kanj filed the death certificate dated 18 May 2017, which certified that the deceased had died of a head injury on 28 March 2017. The document was annexed to her Reply to Application to Resolve a Dispute (Reply),[9] which was admitted under cover of an Application to Admit Late Documents (AALD) dated 26 May 201[7].
[9] Ms Ali Kanj’s Reply, p 1.
Ms Ali Kanj also filed three additional AALDs, which annexed further evidence in support of her case.
Ms Ali Kanj’s legal representative, Ms Keryn Lee Sim, provided a statement dated 27 November 2017.[10] Ms Sim gave details of action taken by her to assist in ascertaining the existence and whereabouts of other potential dependants.
[10] AALD dated 27 November 2017.
Ms Ali Kanj provided a statement dated 15 November 2017.[11] Ms Ali Kanj described her personal history, which included that she had separated from her husband in 2009 and obtained an Apprehended Domestic Violence Order against him. Her only income was a single parent benefit from Centrelink. She said that when her brother (the deceased) had come to Australia he lived with her and her two children, and the children formed a strong bond with the deceased. She stated that she received no support from her former husband, who was serving a gaol sentence.
[11] AALD dated 30 December 2017, pp 4–6.
Ms Ali Kanj stated that her brother, the deceased, came to Australia to visit her on a visitor’s visa, which required her to pay $10,000 as a security bond. The deceased obtained a work health and safety induction card on 20 January 2017 and then was granted a bridging visa, which permitted him to work in Australia. Ms Ali Kanj said the deceased commenced work with Nonabel on 27 March 2017, although that date is at odds with other evidence discussed below and with her further statement that the deceased was injured about a week after commencing employment.
Ms Ali Kanj said that she would drive her brother to work each day. The deceased contributed to her everyday living expenses and her children formed a strong bond with the deceased.
Ms Ali Kanj referred to her parents’ separation, and said that her father, Mr Jamal, abandoned her mother, her siblings and herself. The family had no further contact with him and received no financial assistance.
Copies of the various documents referred to by Ms Ali Kanj were annexed to her statement.[12]
[12] AALD dated 30 December 2017, pp 7–25.
Ms Ali Kanj also relied on a number of statements, some in Arabic with certified translations, all annexed to an AALD dated 26 April 2018. Six of those statements were from the deceased’s siblings, who all confirmed that the family had not received any financial assistance from, or been in contact with their father, Mr Jamal.[13]
[13] AALD dated 26 April 2018, pp 2–13.
Ms Joanne Janzerli, a friend of Ms Ali Kanj, gave a statement dated 1 March 2018.[14] She had been Ms Ali Kanj’s friend for seven years and had known the deceased since November 2016, when he first came to Australia. She said the three of them would meet at either her home, Ms Ali Kanj’s home or at other meeting places.
[14] AALD dated 26 April 2018, p 1.
Ms Janzerli stated that on many occasions she witnessed the deceased paying for Ms Ali Kanj’s expenses, such as groceries, bills, school uniforms, take away food and petrol. She recalled the deceased saying to Ms Ali Kanj that she was cooking and cleaning for him and driving him around, and that if Ms Ali Kanj needed money she should take it. Ms Janzerli recalled a specific time when the deceased paid for two mobile telephones for Ms Ali Kanj, which he had arranged to be brought from Dubai by Ms Janzerli’s mother.
Ms Janzerli observed that Ms Ali Kanj and the deceased appeared to have a close relationship, that the deceased loved Australia, and he told Ms Janzerli that if anything happened to him, he wanted to be buried in Australia.

Nonabel’s evidence

Nonabel attached to the application a “first contact notification” form provided to Nonabel’s insurer and dated 30 March 2017, giving notice of the injury and death of the deceased. It also annexed correspondence passing between the insurer and Ms Ali Kanj’s legal representatives, indicating the insurer accepted liability and advice that both Ms Ali Kanj and Mrs Obeid intended to make a claim for the lump sum benefit.
At the arbitration, Nonabel also tendered a statement from Mr Hamdan Bilal, the owner of Nonabel. The Arbitrator admitted the statement as “Exhibit A”. Mr Bilal provided a description of the concrete pumping company’s operations and said that he would usually have one worker on site working with him. Mr Bilal said that he had known the deceased for a long time, and that about ten days before the accident, the deceased contacted Mr Bilal’s cousin in relation to job opportunities. Mr Bilal said that about seven days before the accident, he had tested the deceased’s skills for the job and was very happy with the level of his experience, so asked the deceased to start work the following day. Mr Bilal explained what happened in the incident, which he witnessed, and that the deceased was taken to hospital by ambulance.

Mrs Obeid’s evidence

Mrs Obeid filed a Reply under cover of an AALD, on 12 July 2017. Annexed to the Reply were several documents written in Arabic with certified translations, as follows:
(a)    a translated document dated 9 June 2017 extracted from the Lebanese Republic Family Register recording Mr Jamal’s marriage to Mrs Obeid, his marriage to his second wife, and listing the names and dates of birth of his children;[15]
(b)    a translated “Certificate of Good Conduct” dated 7 June 2017 provided by the Mayor of Bakhaoun, Lebanon.[16] The document verified that Mrs Obeid and Mr Jamal had been separated for more than twenty years and that Mrs Obeid did not deal with her ex-husband, and
(c)    copies of the decisions of Magistrate Sheikh Hamza Checkr (and translations) verifying that Mrs Obeid had filed a lawsuit seeking financial maintenance from Mr Jamal for herself and her children, that Mr Jamal had been restrained from leaving the country so as to avoid liability, and that Mr Jamal was ordered to pay 100,000 LBP per month to Mrs Obeid and 50,000 LBP per month for seven of their children.
[15] Mrs Obeid’s Reply, pp 1–4.
[16] Reply, pp 5–7.
Mrs Obeid provided a signed statement dated 30 August 2017 which was translated into English.[17] The translation was certified.
[17] AALD 6 November 2017, pp 1–4.
Mrs Obeid confirmed that she married Mr Jamal in 1976 and that they had 11 children together. They separated in 1995, and made a formal separation in 2000. Mrs Obeid further confirmed that Mr Jamal had been ordered to pay financial maintenance to her and for the children, but that they had never received any money from him nor did she or the children have any dealings with him.

As a consequence, they were very poor and the children were unable to finish their education. She said that she had always been a housewife and that she relied on the deceased for financial assistance, who lived with her until he left for Australia in late 2016.
Mrs Obeid listed some of her living expenses. She said that when the deceased commenced working with Nonabel, he would send her $500 AUD each fortnight and occasionally send money to her daughters, Sari Jamal and Mayada. Mrs Obeid said that she received support from other members of the family, but that the deceased was her main support because he was single and without children.
Mrs Obeid concluded that all of the children should receive some of the lump sum benefit but because Mr Jamal had not given them any support whatsoever, he should not be entitled to a share of that benefit.
Mrs Obeid provided a supplementary statement dated 7 March 2018.[18] She said that the deceased lived in a caravan in Dubai for three years and worked for various periods during that time, when there was work available. She stated that when he had work, the deceased would send her money, usually about $500 per month. She recalled that the deceased had injured his leg while in Dubai and was unable to work for a period. During that time, the deceased relied on financial assistance from his brother. Mrs Obeid clarified that when the deceased first moved to Australia he did not send her money as he was unemployed. She said that once he commenced work, he sent money to her on two occasions. On the first occasion, he sent $300 and on the second he sent $200 through Western Union money transfer. She said that the money was not paid through a bank account so she had no bank records to substantiate the payments.
[18] AALD dated 23 April 2018, pp 11–12.
In a short amendment to her statement, Mrs Obeid said that she does not have a bank account.[19]
[19] AALD dated 23 April 2018, p 17.
Mrs Obeid tendered a document titled “waiver” where Mayada Ali Jamal and Hajar Ali Jamal (two of her children) waived any entitlement to compensation in favour of their mother.[20] In a document titled “Isolation Book”, Mrs Obeid cancelled any power of attorney to act on her behalf that she may have given her daughter, Ms Ali Kanj. She stated that Ms Ali Kanj had no right to receive any inheritance or compensation owed to her son, the deceased.[21]
[20] AALD dated 23 April 2018, pp 3–7.
[21] AALD dated 23 April 2018, pp 8–10.
Mrs Obeid’s legal representative also provided a statement to the Commission, explaining procedures she had undertaken to identify further potential dependants and to arrange for separate legal representation for Ms Jamal and Mayada Jamal.

Mr Jamal’s evidence

Mr Jamal filed a Reply dated 30 January 2018 under cover of an AALD of the same date.
In addition to documents already in evidence, Mr Jamal annexed a document to his Reply that was described as a “statement/letter” in Arabic (and translated) said to be from “Mr Jamal/ Fadi Foz El Samad”.[22] The author of the document asserted that the deceased, through love and support for his father, periodically sent money to his father. The author of the document described Mr Jamal as being old, not working and without resources other than the money provided to him by the deceased. The author of the document further listed the siblings of the deceased and their circumstances, notably including Ms Ali Kanj (referred to as Mayssoun Jamal) and describing her and her husband’s circumstances as living and working normally. Relevantly, the author of the document also referred to Ms Jamal as living with her husband in Saudi Arabia.
[22] Mr Jamal’s Reply, pp 20–23.
The author of the document asserted that none of the deceased’s siblings were financially dependent on the deceased. The truth of the document was said to have been certified by the “Mayor”.
A further document, described as a “certificate”, was annexed to the Reply.[23] Mr Jamal stated that every six months, Mr Fadi Foz El Samad would bring him “living expenses” from the deceased. It appears this document was witnessed by the Mayor of El Tabbaneh, Lebanon.
[23] Mr Jamal’s Reply, p 24.
Mr Jamal provided a statement dated 2 February 2018.[24] He stated that he was retired and without income. He said that the deceased had been working in Dubai before moving to Australia, was single and earning a relatively high income. Mr Jamal said that in his culture, it was common for a retired man to be looked after by his children, and the deceased provided him with financial support sufficient to meet his food, accommodation and other living expenses.
[24] AALD dated 6 February 2018, p 5.
Mr Jamal explained that the money was brought to him by Mr Fadi Foz El Samad every six months for about four years before the accident. He said he had no other means of support, other than minimal support from his other children, who have their own financial obligations. He said that, as far as he understood, none of his children were financially dependent on the deceased.
An email directed to Mr Jamal’s legal representative from a person by the name of Bassel ElSamad was also in evidence.[25] This email reported that Mr Jamal was 70 years old and unable to work. It said that Mr Jamal lived in small, rented accommodation with his family. Mr Bassel ElSamad indicated that Mr Jamal told him that Ms Ali Kanj did not take any money from the deceased, and that the deceased only gave money to Mrs Obeid and himself.
[25] AALD dated 6 February 2018, p 1.
Mr Jamal also signed a statutory declaration indicating that none of the children from his second marriage were dependent on the deceased. Rather, the money he received from the deceased helped Mr Jamal to support his family. Mr Jamal said that Mr El Samad worked in Dubai at the same time as the deceased and would bring 6,000 dirhams from the deceased for Mr Jamal every six months.

Ms Jamal’s evidence

Ms Jamal filed a Reply under cover of an AALD dated 2 November 2017. No documents were annexed to the Reply.
Ms Jamal subsequently filed an AALD dated 31 January 2018. Attached to that AALD was a statement signed by her legal representative as to procedural efforts made by the legal representative to ascertain whether there were any other potential dependants of the deceased.
A statement from Ms Jamal was also attached. She advised she resided with her mother in a small village where there was no opportunity for her to obtain employment. She confirmed that her mother, Mrs Obeid, had ceased work approximately seven years ago because of ill health. Ms Jamal further confirmed her mother received financial support from Ms Jamal’s brothers (including the deceased) and that from time to time, the deceased would also send Ms Jamal a little money for her to enjoy. When the deceased was living with them, he would help with the tasks in the home.
She said that her brother was a caring person and she was close to him.
Ms Jamal also confirmed that when her father, Ali Jamal, left the home he did not provide any support for the family or make any contact with any of them.

THE ARBITRATOR’S REASONS

The Arbitrator identified the following issues that remained in dispute which he was required to determine:
(a) who of the respondents and other siblings and half siblings were wholly or partly dependent on the deceased at the date of his death, and
(b) how the lump sum benefit should be apportioned between those that were dependent.
The Arbitrator named each of the deceased’s siblings and listed their ages, and also named the deceased’s half siblings. He noted Mr Jamal’s evidence that none of the half siblings were dependent on the deceased but that Mr Jamal used the money he received from the deceased to support his family.
The Arbitrator reviewed the evidence before him and summarised the submissions made by the parties. He noted that Ms Ali Kanj, Mrs Obeid and Ms Jamal all submitted that Mr Jamal should not be entitled to any of the lump sum benefit. He further noted that Ms Ali Kanj sought to have the whole of the lump sum benefit paid to her. He summarised Mrs Obeid’s submission that the relationship between the deceased and Ms Ali Kanj was more one of a co-dependency (although did not submit that Ms Ali Kanj was not entitled to a portion of the benefit). The Arbitrator also noted that Mrs Obeid asserted that Ms Jamal’s evidence of dependency was only that she was dependent on Mrs Obeid and not directly dependent on the deceased. The Arbitrator observed that Mrs Obeid conceded that Ms Jamal and Ms Ali Kanj were not disqualified from the apportionment, but that because of their age and marital status, the amount they receive should be very much less than the amount determined in her favour.
The Arbitrator referred to Ms Jamal’s challenge that the evidence was insufficient to establish that Mr Jamal was in any way dependent on the deceased and that this submission was supported by Mrs Obeid.
The Arbitrator further noted Ms Jamal’s submissions in respect of Mr Jamal’s evidence that:
(a)    the evidence of dependency only asserted financial support of money about every six months;
(b)    there is no evidence from Mr Fadi Foz El Samad, although Mr Jamal had his contact details and could have obtained that evidence;
(c)    the document purported to be a certificate from the Mayor of the village of Bakhoun was not a certificate of the Mayor but clearly appears to have been written by Mr Jamal, and
(d)    that the document has no probative value because the person who applied the seal did not depose to knowledge of the facts asserted in the document.
The Arbitrator accepted that the document had no probative value. He further accepted that the absence of evidence from Mr El Samad was significant.
The Arbitrator found that it was relevant that both Mrs Obeid and Ms Jamal challenged Mr Jamal’s statement that while the deceased was in Dubai he “earned a relatively high income”. They both gave evidence that there were periods when the deceased did not work in Dubai and that when he was “in the Emirates” he did not work for three years because of his lack of qualifications.
The Arbitrator preferred the evidence of Mrs Obeid and Ms Jamal over that of Mr Jamal. The Arbitrator reasoned that Mr Jamal gave no details of the work the deceased was doing in Dubai and there was no evidence to support his assertions.
The Arbitrator said that it was “quite clear” that Mr Jamal had provided no support to his family, and Mr Jamal did not deny that fact. He noted Mr Jamal’s submission that the fact he had abandoned his family did not determine the issue of dependency. He further noted the submission that the payment of moneys by the deceased was sufficient to establish the fact of dependency.
The Arbitrator further noted Mr Jamal’s submission that, consistent with TNT Group 4 Pty Ltd v Halioris,[26] Mr Jamal had an “expectation of support” from the deceased, which would decrease to a lesser figure after three to five years when the deceased would have probably married. That proposition, Mr Jamal said, would equally apply to Mrs Obeid and Ms Jamal.
[26] (1987) 8 NSWLR 486 (Halioris).
The Arbitrator accepted that Mrs Obeid, Ms Ali Kanj and Ms Jamal all had an expectation of support from the deceased as at the date of his death.
He further accepted the evidence of Ms Ali Kanj that the deceased supported her financially (although in a sense it was a co-dependency) noting that evidence was supported by the evidence of Ms Janzerli. He did not accept, however, that Ms Ali Kanj was the only person who was dependent upon the deceased.
The Arbitrator also accepted that in the light of the invidious position Mrs Obeid was left in after the break-up of her marriage and her poor health, she had a reasonable expectation of support from the deceased when he was in a position to provide it. Although there was no documentary evidence to support the assertion that the deceased provided financial support to her, the evidence given by Ms Ali Kanj and Ms Jamal was consistent with that fact. The Arbitrator accepted that Mrs Obeid was dependent on the deceased.
The Arbitrator found that Ms Jamal was also dependent, although to a lesser extent because the support she received was through the provision of support to her mother.
The Arbitrator did not accept that Mr Jamal had a reasonable expectation of support from the deceased and did not accept that the deceased earned a high income and regularly sent him money. He reasoned that Mr Jamal’s evidence was not corroborated by any evidence from Mr El Samad, when it could have been. He further referred to evidence from other siblings that Mr Jamal had abandoned their family.
The Arbitrator further found that on the basis of:
(a)    the absence of any evidence of dependency from the other siblings of the deceased;
(b)    Mr Jamal’s evidence that his children from the second marriage were not dependent, and
(c)    the “waiver” from Mayada and Hajar Ali Jamal,
the siblings, other than those who were respondents in the proceedings, were not dependent on the deceased at the time of his death.
The Arbitrator noted the submissions by the parties as to how the lump sum benefit should be apportioned between the dependants. He considered the sum to be apportioned was significant. He said there was little evidence to enable a mathematical calculation of the degree of dependency on the deceased at the time of his death, given the support was in the form of fairly modest and irregular sums of money.
In those circumstances, the Arbitrator formed the view that the most appropriate method to adopt was to apportion a percentage of the whole amount having regard to the reasonable expectation of support by all three dependants. He acknowledged that it was a fairly arbitrary approach, but that it was appropriate because of the state of the evidence and the circumstances in which each of the dependants found themselves.
The Arbitrator determined that in his view, Mrs Obeid was entitled to the majority of the lump sum benefit. He reasoned that she was in reasonably regular receipt of funds from the deceased when he was in employment. In respect of the remaining two dependants, the Arbitrator formed the view that Ms Ali Kanj should be entitled to a greater share than Ms Jamal. The reasons he gave were that Ms Jamal was in receipt of funds from her husband, and although for the six months per year she lived with Mrs Obeid, she lived in fairly poor circumstances. She was also entitled to support from her husband during that time.
The Arbitrator found that on the basis of all of the evidence, the dependants were entitled to the following percentages of the lump sum benefit:
(a)    Ms Ali Kanj – 30%;
(b)    Mrs Obeid – 60%, and
(c)    Ms Jamal – 10%.
The Certificate of Determination issued on 22 May 2018 records:
“The Commission determines:
1.     On 28 March 2017 Souhayb Jamal died as a result of an injury arising out of or in the course of his employment with the applicant.
2. Pursuant to section 25 of the Workers Compensation Act 1987 the lump sum death benefit payable by the applicant as a result of the death of the deceased is $765,650.
3.     The first respondent, Mayssoun Al Kanj, the second respondent, Fatme Obeid and the fourth respondent, Sari Jamal were in part dependent for support on the deceased at the time of his death.
4.     On the evidence before the Commission [the] first respondent, Mayssoun Al Kanj, the second respondent, Fatme Obeid and the fourth respondent, Sari Jamal are the only persons who were dependent for support on the deceased at the time of his death.
5. Pursuant to section 29 of the Workers Compensation Act 1987 the lump sum death benefit is apportioned as follows:
(a) first respondent       - $229,695;
(b) second respondent - $459,390; and
(c) fourth respondent     - $76,565.
6.     The applicant is to pay to the first, second and fourth respondents the sums so apportioned.”

GROUNDS OF APPEAL

Ms Ali Kanj alleges four grounds of appeal as follows:
(a)    Ground 1: The Arbitrator erred in fact in determining that the relationship between the deceased and Ms Ali Kanj was one of co-dependency as opposed to her being dependent on the deceased;
(b)    Ground 2: The Arbitrator erred in fact in determining that Mrs Obeid was dependent on the deceased for financial support where there was no evidence to support that determination;
(c)    Ground 3: The Arbitrator erred in fact in determining that Ms Jamal received support from the deceased and had an expectation of support where there was no evidence to support that determination, and
(d)    Ground 4: The Arbitrator erred in the exercise of his discretion in calculating the apportionment by having regard to the reasonable expectation of support held by Mrs Obeid, Ms Jamal and herself.

LEGISLATION

Subsection (1)(a) of s 25 of the 1987 Act provides:
“25 Death of worker leaving dependants (cf former s 8 (1))
(1) If death results from an injury, the amount of compensation payable by the employer under this Act shall be:
(a) the amount of $750,000 (the lump sum death benefit), which is to be apportioned among any dependants who are wholly or partly dependent for support on the worker or (if there are no such dependants) paid to the worker's legal personal representative …”
Sections 29 of the 1987 Act relevantly provides:
“29 Apportionment of payments between dependants (cf former s 59)
(1) The compensation payable under this Division to each dependant of a deceased worker may be apportioned by the Commission or by the NSW Trustee.
(1A) The lump sum death benefit payable under this Division is not to be apportioned if a deceased worker leaves only one dependant (whether wholly or partly dependent on the worker for support) and the whole of the lump sum death benefit is to be paid to that one dependant.
(1B) In apportioning the lump sum death benefit payable under this Division between 2 or more dependants, the whole lump sum death benefit is to be apportioned among those dependants (so that the sum of the apportioned amounts equals the full lump sum death benefit).
…”

SUBMISSIONS

Ms Ali Kanj’s submissions

Ground 1: The Arbitrator erred in fact in determining that the relationship between the deceased and Ms Ali Kanj was one of co-dependency as opposed to her being dependent on the deceased

Ms Ali Kanj says that the relationship between her and the deceased was not one of a co-dependency.
Ms Ali Kanj asserts that she was dependent on the deceased for financial assistance in that he contributed to her (and her two young children’s) day to day expenses. She received no financial support from her husband who was incarcerated.
Ms Ali Kanj submits that the relationship should not be regarded as a co-dependency, but rather one where she was dependent on the deceased as at the date of death and had a reasonable expectation of future support from him.

Ground 2: The Arbitrator erred in fact in determining that Mrs Obeid was dependent on the deceased for financial support where there was no evidence to support that determination

Ms Ali Kanj submits that the deceased did not work in Dubai and could not have sent funds to Mrs Obeid as he had no income. Mrs Obeid produced no evidence to support her assertion that the deceased sent her money.
Ms Ali Kanj further submits that Mrs Obeid’s evidence that the deceased sent her $500 per fortnight once he commenced employment with Nonabel is not consistent with the deceased having only worked at Nonabel for about one week.
Ms Ali Kanj says that there is no documentary evidence establishing payments from the deceased to Mrs Obeid or any other corroborative evidence to support Mrs Obeid’s assertions. This is said to be despite directions having been issued by the Arbitrator to produce records of such payments. Ms Ali Kanj submits that the Arbitrator has clearly erred in not taking into account the failure to comply with his direction.
Ms Ali Kanj contends that Mrs Obeid is not able to show that she was in receipt of any regular financial support from the deceased. Consequently, Mrs Obeid is not able to show that she was dependent on the deceased or that she had a reasonable expectation of future support.

Ms Ali Kanj submits that the Arbitrator erred in fact by determining that Mrs Obeid was dependent upon the deceased, and that error led to Mrs Obeid receiving a greater apportionment of the lump sum benefit. Ms Ali Kanj seeks an order that Mrs Obeid was not dependent and therefore should not be entitled to 60% of the lump sum benefit.

Ground 3: The Arbitrator erred in fact in determining that Ms Jamal received support from the deceased and had an expectation of support where there was no evidence to support that determination

Ms Ali Kanj submits that because there is no evidence to support Mrs Obeid’s claim of dependency, then Ms Jamal could not rely on having received support from her deceased brother through the benefit of payments to her mother. Ms Ali Kanj further submits that there is no documentation in relation to the amounts of $50 and $100 that Ms Jamal asserts were sent to her by the deceased.
Further, Ms Ali Kanj contends that those amounts, if paid, were irregular so that irregularity did not justify a realistic expectation of support.
Ms Ali Kanj further contends that at [94] of his reasons, the Arbitrator formed the view that Ms Jamal was only dependent through her mother.
Ms Ali Kanj says that the error has resulted in Ms Jamal being apportioned a lump sum benefit. She says that it should be determined that Ms Jamal was not dependent on the deceased, either through the benefit of her mother’s dependency or directly from the deceased, and Ms Jamal should not receive any of the lump sum benefit.

Ground 4: The Arbitrator erred in the exercise of his discretion in calculating the apportionment by having regard to the reasonable expectation of support held by Mrs Obeid, Ms Jamal and herself

Ms Ali Kanj does not dispute the Arbitrator’s finding that Mr Jamal was not dependent on the deceased, however asserts that the Arbitrator attached too much weight to the history of the marriage between Mr Jamal and Mrs Obeid. She submits that Mrs Obeid’s difficult circumstances flowing from the separation and lack of support over the years should not have been a reason to apportion 60% of the lump sum benefit in Mrs Obeid’s favour.
Ms Ali Kanj says that the deceased moved to Australia to set up a new life with her. She provided accommodation for him while he was job-seeking. She submits that he attempted to find work so that he could assist her with her daily expenses, in a situation where she was a single parent with two young children.
Ms Ali Kanj contends that Mrs Obeid received no money from the deceased in the three years that he was in Dubai, and so it was an unlikely proposition that Mrs Obeid would have a reasonable expectation that she would receive money from the deceased in the future.
Ms Ali Kanj refers to the Arbitrator’s reasons at [122] wherein he described the method of apportionment as “somewhat arbitrary” and submits that the Arbitrator has erred in the exercise of his discretion in finally determining the apportionment.

Nonabel’s submissions

Nonabel submits that the deceased did not provide bank details to it and that the deceased never received a payment from Nonabel.
While Nonabel seeks to remain impartial to the apportionment, it says that it is of the view that there is no primary documentary evidence to support a finding that any of the named dependants were either wholly or partly dependent on the deceased at the date of death.

Mrs Obeid’s submissions

Mrs Obeid makes the same submissions in this appeal as she made in the related appeal brought by Mr Jamal. Not all of those submissions are pertinent to Ms Ali Kanj’s appeal.
Relevantly, Mrs Obeid submits that the Arbitrator’s decision was correct. Alternatively, she submits that the Arbitrator erred in awarding any portion of the lump sum benefit to anyone other than herself.
She says that the Arbitrator’s recital of the evidence, including the biological nature of the relationship between the deceased and Mr Jamal, was accurate.
Mrs Obeid submits that the evidence was vague and contradictory and because of the location of the witnesses, it was not possible to test the evidence by cross examination. There was a conflict in the evidence and the preponderance of the evidence was that the deceased did not have very much money. Given those circumstances, she submits that the Arbitrator did the best that he could.
Mrs Obeid submits that dependency is a question of fact that is usually determined by past experience of support but where that evidence is unreliable, the issue may be resolved by consideration of the probability of a future expectation of support.
Mrs Obeid contends that the Arbitrator was correct in assessing whether there was a realistic expectation of support. She says that fanciful assertions are of no assistance. What is required is an objective assessment of the probability of support.
Mrs Obeid submits that all of the evidence establishes that Mr Jamal abandoned the family in about 1995, leaving her to look after their children in a “cooperative of mutual support” to which he did not contribute.[27]
[27] Mrs Obeid’s submissions, p 1, [7].
Mrs Obeid says that since she became ill in 2011 and up until the date of the deceased’s death, she has been dependent upon each of her children who were in a position to support her financially and to assist her domestically. She submits that at the time of his death, the deceased was in a position to provide her with financial support.
Mrs Obeid submits that the word “dependent” connotes more than a simple transfer of money. She relies on a consideration of the meaning of the word by Brereton J (as his Honour then was) in Spata v Tumino; Estate of Gina Spata,[28] where his Honour said that the definition of dependants does not simply mean somebody who in fact was supported by the worker but connotes a “state or condition of being dependent.”[29]
[28] [2017] NSWSC 111 (Spata).
[29] Spata, [60].
Mrs Obeid contends that her expectation of future support was reasonable.

Ms Jamal’s submissions

Ms Jamal submits that at [108] of his decision, the Arbitrator went about the task required of him as he was required to do by the legislation. She says the Arbitrator found in favour of Ms Ali Kanj in that she was dependent upon the deceased, but that she was not the only dependant. She submits that there was no error in the Arbitrator’s acceptance that the relationship between the deceased and Ms Ali Kanj was “in one sense a co-dependency”.[30] Ms Jamal refers to the evidence that Ms Ali Kanj provided board and lodging to the deceased while he was unable to work, and that created the dependency of the deceased on Ms Ali Kanj. She contends that the finding of a co-dependency “in one sense” was not an error, and certainly did not affect the outcome.
[30] Nonabel Concrete Pty Ltd v Ali Kanj (unreported, 22 May 2018, 2125/17) (Reasons), [108].
In relation to Ground 2 of the appeal, Ms Jamal submits that Mrs Obeid’s dependency was supported by the evidence as considered by the Arbitrator from [40]–[48] of his reasons. She says that the Arbitrator was entitled to accept that evidence, which was supportive of dependency.
With respect to Ground 3, Ms Jamal contends that the alleged error appears to rest completely on the absence of documentary evidence to establish payments were made.
Ms Jamal submits that she provided statement evidence of the benefit provided by the deceased and that Mrs Obeid corroborated that evidence. She says that the Arbitrator noted that corroboration at [44] of his reasons.
Ms Jamal concedes that her entitlement to the lump sum benefit was significantly less than the other dependants, but the Arbitrator’s finding was supported by the evidence and no error of fact is disclosed.
As to Ground 4, Ms Jamal observes that this ground asserts that the Arbitrator attached too much weight to the history of the marriage between Mrs Obeid and Mr Jamal, and refers to the arbitrary method of apportionment.
Ms Jamal submits that the apportionment between dependants is of necessity a matter of the exercise of discretion and there is a heavy onus on a party seeking to challenge the apportionment. She contends that Ms Ali Kanj has not discharged the onus of establishing error in the exercise of the Arbitrator’s discretion.
Ms Jamal contends that the appeal should be dismissed and the Arbitrator’s orders should be confirmed.

DISCUSSION

Ground 1

Ms Ali Kanj complains that the Arbitrator erred in determining that the relationship between her and the deceased was one of co-dependency. Her submissions are limited to an assertion that the finding was wrong and that she relied on the deceased for financial assistance. She submits that she should be regarded as having been dependent at the date of death and that she had a reasonable expectation of support.
The Arbitrator’s decision as to whether each of the respondents was dependent is a factual decision based on inferences drawn from the evidence.
In order to establish error on the part of the Arbitrator in respect of his factual findings, what is required to be shown that the Arbitrator either:
(a)    ignored material facts;
(b)    made a critical finding of fact which has no basis in the evidence;
(c)    showed a demonstrable misunderstanding of relevant evidence, or
(d)    demonstrably failed to consider relevant evidence.[31]
[31] Henderson v Foxworth Investments Ltd [2014] UKSC 41; SLT 775; 1 WLR 2600, [67].
As described by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr,[32] to demonstrate error on the part of the Arbitrator, what is required is to establish that other probabilities so outweigh the Arbitrator’s conclusion that it can be said his conclusion was wrong.
[32] (1966) 39 ALJR 505.
The Arbitrator found that Ms Ali Kanj was dependent for financial support on the deceased and that she was dependent on the deceased for the purposes of an entitlement to a portion of the lump sum benefit pursuant to s 25(1) of the 1987 Act.[33] The Arbitrator’s acknowledgment of “to some extent” a co-dependency was founded on the evidence that Ms Ali Kanj provided accommodation to the deceased and performed domestic duties to his benefit. That acknowledgment was immaterial to the Arbitrator’s finding that Ms Ali Kanj had a future expectation of support from the deceased. There was no material error of fact on the part of the Arbitrator in his determination that Ms Ali Kanj was dependent upon the deceased.
[33] Reasons, [108] and [123].
The Arbitrator did take into account the co-dependent nature of the relationship between the deceased and Ms Ali Kanj when determining the degree of dependency for the purposes of apportionment. How the lump sum benefit was to be apportioned was an exercise of the Arbitrator’s discretion. A decision arising from the exercise of discretion is an evaluative judgment involving an individual choice, to which there may well be differences of opinion. Such a finding will not be lightly reviewed and the appellate tribunal is bound to exercise restraint in its approach to an appeal from a discretionary decision.[34]
[34] Tarabay v Leite [2008] NSWCA 259, [29] (per Basten JA).
In Micallef v ICI Australia Operations Pty Ltd,[35] Heydon JA (as his Honour then was) observed:
“It is necessary to bear in mind some submissions of the defendants to the effect that a discretionary judgment can only be overturned in limited circumstances …
Any attack on decisions of that character must fail unless it can be demonstrated that the decision-maker:
(a) made an error of legal principle;
(b) made a material error of fact;
(c) took into account some irrelevant matter,
(d) failed to take into account, or gave insufficient weight to, some relevant matter, or
(e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.”[36]
[35] [2001] NSWCA 274 (Micallef).
[36] Micallef, [45].
In the exercise of his discretion in apportioning the lump sum benefit, the Arbitrator was essentially evaluating the extent to which each dependant relied on support from the deceased. The deceased undoubtedly depended on Ms Ali Kanj for accommodation and domestic support, particularly so when he was unable to work in Australia. Ms Ali Kanj also received benefit from the deceased during that time. Their relationship (however described) was readily distinguishable from that between Mrs Obeid and the deceased. Factors such as the nature of the relationship are very relevant to the discretionary exercise the Arbitrator was required to perform.
Ms Ali Kanj has not identified any error of legal principle, material error of fact or that the Arbitrator has taken into account an irrelevant matter or failed to take into account or give insufficient weight to a relevant matter. The decision the Arbitrator arrived at was not unreasonable or unjust. There is therefore no basis upon which to disturb the Arbitrator’s finding in respect of a “co-dependent” relationship between the deceased and Ms Ali Kanj.
Ground 1 of the appeal is rejected.

Ground 2

This ground of appeal challenges the Arbitrator’s finding that Mrs Obeid was dependent on the deceased. The challenge is based on the assertions that Mrs Obeid’s evidence was inconsistent with the deceased’s employment history and was uncorroborated.
Ms Ali Kanj’s submissions only referred to statements made by Mrs Obeid in her initial statement dated 30 August 2017. In a subsequent statement dated 7 March 2018, Mrs Obeid clarified her earlier evidence in relation to money she received from the deceased. She acknowledged that the deceased did not work for periods while he was in Dubai, and during those periods she did not receive money from him. She further acknowledged that when the deceased first went to Australia he did not work, and that it was only when he commenced work with Nonabel he sent her money. Mrs Obeid said that at that time, altogether she received $500 in two separate transactions.
The Arbitrator took into account the absence of documentary evidence to support Mrs Obeid’s evidence, but regarded the evidence of both Ms Ali Kanj and Ms Jamal to be consistent with Mrs Obeid having received some financial assistance (albeit in modest amounts and at infrequent times).[37] He accepted that the deceased sent Mrs Obeid money when he was in a position to do so, and that Mrs Obeid had a reasonable expectation of future support once he had obtained employment in Australia.
[37] Reasons, [121].
Ms Ali Kanj’s submission that Mrs Obeid’s assertions are not corroborated by other evidence is incorrect. The allegation made by Mrs Obeid that the deceased sent her money when he was able to do so is corroborated in Ms Jamal’s statement that after her mother became ill (seven years previously) Ms Jamal’s brothers always provided for her, her mother and her sisters.[38] Further, Ms Jamal makes specific reference in her testament to the deceased having sent her mother money and from time to time an amount for her.[39]
[38] Ms Jamal’s statement dated 23 January 2018, [8].
[39] Ms Jamal’s statement dated 23 January 2018, [21].
The Arbitrator accepted that Ms Jamal’s evidence corroborated that of Mrs Obeid. That finding was clearly open to him and discloses no error.
Ms Ali Kanj submits that the Arbitrator fell into error in not taking into consideration that Mrs Obeid failed to comply with his direction to produce bank records verifying that the money was paid. By way of explanation for failure to comply with the direction, Mrs Obeid advised in her supplementary statement that she did not have a bank account.[40]
[40] AALD dated 23 April 2018, p 17.
The Arbitrator addressed the lack of documentary evidence relied on by Mrs Obeid, saying:
“Notwithstanding the lack of documentary evidence to support this claim, having regard to the evidence of [Mrs Obeid] herself and that of [Ms Ali Kanj] and [Ms Jamal], I accept that [Mrs Obeid] was dependent upon the deceased at the time of his death.”[41]
[41] Reasons, [109].
The Arbitrator further expressed his view that there was “little evidence” to assist him in a mathematical calculation of the entitlement and that the evidence was “general”.[42]
[42] Reasons, [121].
The Arbitrator clearly turned his mind to the lack of documentary evidence. None of the parties produced any documentary evidence of money transfers to support their claims, including Ms Ali Kanj. It was on the basis of the vague nature of the evidence that the Arbitrator adopted the approach of considering what reasonable expectation of future support each dependant would have, in order to apportion the lump sum benefit.
The Arbitrator’s approach was consistent with the approach in Halioris and was founded on the available evidence. Ms Ali Kanj has provided no basis upon which to find error on the part of the Arbitrator and this ground of appeal fails.

Ground 3

Ms Ali Kanj further complains that the Arbitrator erred in determining that Ms Jamal was dependent upon the deceased. She submits that there was no evidence to support the finding.
Ms Ali Kanj submits that the alleged payments from the deceased directly to Ms Jamal were minimal, irregular and without documentary support so that they could not be sufficient to create an expectation of support. She further relies on her submissions in relation to the lack of dependency of Mrs Obeid to say that it was an error of fact to determine that Ms Jamal was dependent on the deceased through the dependency of her mother, Mrs Obeid.
I have found that the Arbitrator was correct in his determination that Mrs Obeid had an expectation of future support from the deceased. Ms Jamal resided with her mother, Mrs Obeid, had the benefit of the financial support afforded to Mrs Obeid, and her evidence was corroborated by Mrs Obeid. It follows that Ms Jamal was also dependent, through her mother, on the deceased. The Arbitrator’s decision was based on the evidence and available to him. Ms Ali Kanj has not identified any error on the part of the Arbitrator and this ground of appeal fails.

Ground 4

Ms Ali Kanj submits that the Arbitrator has erred in the exercise of his discretion in apportioning 60% of the lump sum benefit to Mrs Obeid. She says that the error was occasioned by the Arbitrator placing too much weight on the history of the marriage between Mr Jamal and Mrs Obeid. She submits that the circumstances flowing from the lack of support after the marriage failed should not have been a factor.
Ms Ali Kanj submits that Mrs Obeid received no money from the deceased for the three years while he was in Dubai, and so there could be no expectation of future support.
I reiterate that the Arbitrator’s finding on apportionment is a discretionary exercise, requiring the appellate tribunal to be satisfied of the type of error identified in Micallef before the finding can be disturbed.
Ms Ali Kanj has not expressed any assertion that the Arbitrator made an error of legal principle. Her ground of appeal is limited to a complaint that the Arbitrator:
(a)    took into account irrelevant matters (the breakdown of Mrs Obeid’s marriage and the lack of support from Mr Jamal);
(b)    placed too much weight on the circumstances following the marriage breakdown, and
(c)    failed to take into account that the deceased did not provide support to Mrs Obeid during the three years that the deceased was in Dubai.
The Arbitrator made the following observations about Mrs Obeid’s circumstances following the breakdown of the marriage:
“[Mrs Obeid] was left in a very invidious position after the break-up of her marriage … and obliged to bring up a very large family with no assistance … In that circumstance it is only reasonable, particularly having regard to the period of ill health which she suffered, that [she] would reasonably expect to receive support from her children, including the deceased, when they were in a position to provide such support.”[43]
[43] Reasons, [109].

The Arbitrator accepted statement evidence that from time to time, Mrs Obeid received some financial support from the deceased. Ms Ali Kanj’s evidence is that the deceased never worked over the three-year period while he was in Dubai. The evidence of both Mrs Obeid and Ms Jamal was that from time to time, the deceased did work and send money when he was able to do so.
Even if it was accepted that Mrs Obeid received no support during the time that the deceased was in Dubai, the evidence is that the deceased sent her money when he commenced employment with Nonabel and that evidence is consistent with the evidence that Mrs Obeid’s sons provided support to the family when they were in a position to do so. That evidence was sufficient to find that Mrs Obeid had a reasonable expectation of future support, consistent with the principle in Halioris.
The circumstances in which Mrs Obeid found herself, particularly after the onset of her ill-health, the support she received from those in the family who provided financial assistance when able to do so, and payments of money by the deceased at least when he obtained work in Australia are all relevant matters to consider in the determination of whether Mrs Obeid had a reasonable expectation of future support from the deceased. The Arbitrator’s observations of the evidence provided a sound basis for his determination in respect of dependency and apportionment of the lump sum benefit.
Even if I had a preference for a conclusion different to that arrived at by the Arbitrator (which I have not), this would not represent a basis for overturning the decision.[44] It follows that this ground of appeal is rejected.
[44] Hamod v State of New South Wales [2011] NSWCA 375, [132].

CONCLUSION

Ms Ali Kanj has failed to establish any error on the part of the Arbitrator, and her appeal fails.

DECISION

The Certificate of Determination dated 22 May 2018 is confirmed.

Elizabeth Wood

Deputy President

4 October 2018