BQ v BT
[2020] NSWWCCPD 70
•1 December 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | BQ v BT [2020] NSWWCCPD 70 |
| APPELLANT: | BQ |
| FIRST RESPONDENT: | BT |
| SECOND RESPONDENT: | C1 |
| THIRD RESPONDENT: | C2 |
| FOURTH RESPONDENT: | C3 |
| FIFTH RESPONDENT: | C4 |
| INSURER: | icare Workers Insurance |
| FILE NUMBER: | A1-3376/20 |
| SENIOR ARBITRATOR: | Mr G Capel |
| DATE OF ARBITRATOR’S DECISION: | 17 August 2020 |
| DATE OF APPEAL DECISION: | 1 December 2020 |
| SUBJECT MATTER OF DECISION: | Section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr S Grant, counsel | |
| Kenny Spring Solicitors | |
| First Respondent: | |
| Mr S Harris, solicitor | |
| Moray & Agnew Lawyers | |
| (Submitting appearance) | |
| Second Respondent: | |
| Ms K Teague, solicitor | |
| Kells Lawyers | |
| Third Respondent: | |
| Mr M Grady, solicitor | |
| Everingham Solomons Solicitors | |
| Fourth Respondent: | |
| Mr D Pena, solicitor | |
| Colin Daley Quinn | |
| Fifth Respondent: | |
| Ms E McDonald, solicitor | |
| MCW Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The appeal cannot be brought as the requirements of s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 are not satisfied. |
INTRODUCTION AND BACKGROUND
Mr BR (the deceased) was tragically killed in an accident on 4 September 2019 in the course of his employment with BT (the employer), when a semi-trailer he was driving came into collision with another heavy vehicle.[1] A claim in respect of the benefits pursuant to ss 25 and 26 of the Workers Compensation Act 1987 (the 1987 Act) was brought.[2] The claim was made on behalf of Ms BQ (the widow of the deceased) together with C1, C2, C3 and C4, the infant children of Ms BQ and the deceased. The employer’s relevant insurer ultimately accepted liability in respect of the deceased’s death.
[1] Police report, Application in Respect of Death of Worker (ARD), pp 9–14.
[2] Letter, Kenny Spring 4/10/19, ARD pp 7–8.
The employer’s solicitors lodged the ARD instituting the current proceedings on 17 June 2020. There was no dispute regarding the entitlement of the dependent children to weekly payments pursuant to s 25(b) of the 1987 Act, or of the employer’s obligation to pay funeral expenses pursuant to s 26 of the 1987 Act. The relevant benefit pursuant to s 25(a) at the date of death was $810,050. The issues requiring determination were identification of persons who were wholly or partially dependent, apportionment of the sum of $810,050 between the dependants, liability of the employer for interest, and orders in relation to the payment of compensation.[3]
[3] BT v BQ (3376/20, 17/8/20), (Reasons), [4]–[5], [10].
The matter was listed for a telephone conference before Ms Camp, a Delegate of the Registrar, on 17 July 2020. Each of the potential dependants identified in [1] above was legally represented. The issues were identified and the Delegate made orders for the lodgment of further evidence and written submissions.[4]
[4] Direction, 17/7/20, Reasons, [6]–[7].
The matter was listed before Senior Arbitrator Capel for telephone conference on 17 August 2020. The parties were advised of the Senior Arbitrator’s intention to determine the matter without holding an arbitration hearing.[5]
[5] Reasons, [9].
THE SENIOR ARBITRATOR’S DECISION
The Commission issued a Certificate of Determination dated 17 August 2020 accompanied by the Reasons. The Senior Arbitrator identified the issues[6] and summarised the evidence.[7] He summarised the parties’ submissions.[8]
[6] Reasons, [10].
[7] Reasons, [11]–[29].
[8] Reasons, [30]–[55].
The Senior Arbitrator referred to TNT Group 4 Pty Ltd v Halioris,[9] Kaur v Thales Underwater Systems Pty Ltd[10] and Wratten v Kirkpatrick,[11] authorities dealing with the identification and extent of dependency. He found that Ms BQ (who was working full-time as at the date of death) was partially dependent on the deceased, and that each of the infant children was wholly dependent on the deceased. He found there were “no other persons wholly or partly dependent on the deceased at the date of death”.[12] The largest share of the sum was apportioned to Ms BQ; the sums apportioned to the children were of a lower order, but were substantial. The Senior Arbitrator also made orders for the payment of interest on the lump sum.[13] The Senior Arbitrator’s orders relating to dependency, apportionment and interest are not challenged on this appeal.
[9] (1987) 8 NSWLR 486; 3 NSWCCR 10.
[10] [2011] NSWWCCPD 6.
[11] (1996) 15 NSWCCR 32.
[12] Reasons, [58]–[59].
[13] Reasons, [70]–[86].
Ms BQ, in her statement dated 23 June 2020, said that she planned to invest “a portion of the monies that [she received] to ensure that the children and [her] will be comfortable into the future”. She said she had taken advice “regarding the investment of the funds payable to the children”.[14] She said that her education included tertiary qualifications in business.[15] She said:
“100. I am seeking that any monies payable to the children from the apportionment of the lump sum death benefit be managed by myself. I seek that the sums payable to the children are administered and invested by me, with the benefit of financial advice, rather than being paid and managed by the Public Trustee.
101. I will add to these investments any other amounts which are received by the children from any superannuation or other benefits following [Mr BR’s] death.
102. I plan to keep the monies paid to the children invested and not make any withdrawal from these funds until the children attain the age of 18 years, except in the case of any medical emergency or extraordinary educational expenses.”[16]
[14] Ms BQ’s statement 23/6/20, [97], [99].
[15] Ms BQ’s statement 23/6/20, [16].
[16] Ms BQ’s statement 23/6/20, [100]–[102].
The submissions lodged on behalf of the children were generally supportive of this course.
The Senior Arbitrator dealt with the issue:
“68. The respondents have submitted that the entitlements of the minor children should be paid to the first respondent as trustee so that she can invest the funds. Withdrawals would only be made to cover unforeseen expenses. I have no reason to doubt the first respondent’s evidence and her present intentions, but who knows what the future holds.
69. In my view, the payments for the children should be paid to the NSW Trustee and Guardian to hold on trust until each of them turns 18 years of age. Whilst this is contrary to the submissions made on behalf of the respondents, there is no compelling reason for departing from the usual practice. This ensures that the funds are protected for the children’s future.”[17]
[17] Reasons, [68]–[69].
The appeal in this matter was lodged by Ms BQ on 14 September 2020. An appeal was also lodged on behalf of C3 on the same date. C3’s appeal was subsequently discontinued. The solicitors acting for the employer wrote to the Registrar on 22 September 2020 advising that the employer did “not intend to take any part in the appeal” and requesting that its appearance be treated as “a submitting appearance”.
GROUNDS OF APPEAL
Ms BQ raises the following grounds of appeal:
(a) That the Senior Arbitrator’s decision was affected by an error of discretion when he stated at para [68] of his reasons ‘who knows what the future holds’. (Ground No. 1)
(b) That the Senior Arbitrator’s decision was affected by an error [of] discretion in that he stated that there was ‘no compelling reason’ to depart from ‘the normal practice’ and this is an error in the exercise of his discretion. (Ground No. 2)
(c) That the use of the words ‘compelling reason’ was an incorrect application of the requirements of s 85A [of the 1987 Act] and therefore the Senior Arbitrator’s decision was affected by both an error of discretion and law. (Ground No. 3)
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.”
Having 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 this is the appropriate course in the circumstances.
LEGISLATION
Section 25(1)(a) of the 1987 Act relevantly provides:
“(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, and …”.
Section 85 of the 1987 Act provides:
“Payments to NSW Trustee for benefit of beneficiary (cf former ss 15(3), 57, 58, 61)
(1) The following compensation shall be paid to the NSW Trustee in trust for the benefit of the persons entitled to the compensation—
(a) compensation payable in respect of the death of a worker (unless paid to a worker’s legal personal representative or a particular person in accordance with this Act or an award),
(b) compensation payable to a person who is mentally ill (unless the Commission otherwise orders),
(c) compensation payable to a worker under the age of 18 years if the worker agrees or the Commission directs that the compensation be paid to the NSW Trustee,
(d) a lump sum commutation payment which the worker agrees or the Commission orders to be paid to the NSW Trustee.
(2) Any money so paid to the NSW Trustee may be invested, applied, paid out or otherwise dealt with by the NSW Trustee in such manner as the NSW Trustee thinks fit for the benefit of the persons entitled to the money.
(3) If a surviving spouse (including widow or widower) (over 18 years of age and not mentally ill) is the only person entitled to compensation paid to the NSW Trustee in respect of the death of a worker, the compensation shall be paid out to the surviving spouse in one or more lump sums determined by the NSW Trustee.
(4) A reference in subsection (3) to the surviving spouse of a deceased worker includes a reference to a dependant of the worker who is the de facto partner of the worker.
(5) In the case of a lump sum commutation payment, the NSW Trustee shall exercise its powers under this section in accordance with the agreement or order under which it was paid to the NSW Trustee.
(6) The Commission may, for any sufficient cause, vary the manner in which the NSW Trustee invests, applies, pays out or otherwise deals with money under this section.
(7) The NSW Trustee may apply for any such variation.
(8) The receipt of the NSW Trustee is sufficient discharge in respect of any money paid to the NSW Trustee under this section.”
Section 85A of the 1987 Act provides:
“85A Payment of benefits to beneficiaries
(1) Despite section 85, the Commission may authorise the payment of compensation referred to in section 85 (1)—
(a) to the person who is entitled to the compensation, or
(b) to such other person, for the benefit of the person entitled to the compensation, as the Commission thinks fit.
(2) Any such payment is to be made in the manner authorised by the Commission.”
Section 352(3) of the 1998 Act provides:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both—
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
‘Compensation’ is defined in s 4 of the 1998 Act:
“compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts.”
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to time pursuant to s 352(4) of the 1998 Act have been met.
THE REQUIREMENTS OF SECTION 352(3) OF THE 1998 ACT
On 23 September 2020 the Presidential Unit of the Commission wrote to the parties’ solicitors, noting the subject matter of the appeal, and stating that “[t]he issue of satisfying s 352(3) is not straightforward in the circumstances. It is an issue that should be fully addressed in the parties’ submissions.”
In Ms BQ’s submissions on the monetary threshold, in her Application to Appeal, it was simply stated that the issues in the appeal “concern the payment of compensation in excess of $5,000”. “Further Submissions of Appellant” were lodged on Ms BQ’s behalf dated 29 September 2020. It was submitted that ‘compensation’ includes “any monetary benefit” under the Workers Compensation Acts. It was submitted that “clearly the first hurdle is traversed”, leaving the issue of whether the amount of compensation at issue on the appeal is at least 20 per cent of the amount awarded in the decision. It is submitted the focus of this appeal is the amount awarded to the children. The requirements are met, it is submitted by the amount of $810,050 plus interest, or alternatively the amount of $534,633 plus interest which is the sum awarded to the children.
Consideration
It was held in Patrick Operations Pty Ltd v Watson that the “monetary threshold is a mandatory requirement which must be met before the Commission may hear an appeal”.[18] This is consistent with the clear words of the section. It was observed in Tagg v International Flavours and Fragrances (Australia) Ltd that the ‘amount of compensation at issue on the appeal’ “may be different from the amount of compensation at issue in the dispute as a whole”.[19] The words of the section clearly direct attention to the amount ‘at issue on the appeal’.
[18] [2013] NSWWCCPD 18, [13].
[19] [2003] NSWWCCPD 5, [17].
In Fletchers International Exports Pty Limited v Regan,[20] Fleming DP said:
“While a decision of an Arbitrator may not concern an ‘award’ of compensation (as in Mawson), the appeal must nonetheless affect an ‘amount of compensation at issue on the appeal’ to pass the threshold test in section 352(2)(b). Purely procedural decisions, such as a decision to adjourn a telephone conference (Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSW WCC PD 5), a decision in relation to costs only (Grimson v Integral Energy [2003] NSWWCC PD 29), and a decision to schedule a further telephone conference (Falcon v Narellan Enterprises Pty Limited [2003] NSW WCC PD 34) do not meet this threshold criterion. The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCC PD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21)).” (underlining added)
[20] [2004] NSWWCCPD 7, [27].
O’Callaghan v Energy World Corporation Ltd[21] dealt with an appeal in a matter where the worker sought to set aside consent orders for lump sum compensation, so that she could pursue a medical appeal pursuant to s 327(3)(a) of the 1998 Act, with a view to achieving the threshold for a ‘work injury damages’ claim. Roche DP said:
“The Commission is concerned with the current claim and whether, in respect of that claim, the amount of ‘compensation at issue on the appeal’ is at least $5,000.”[22]
[21] [2016] NSWWCCPD 1 (O’Callaghan).
[22] O’Callaghan, [50].
The Deputy President concluded that the threshold was not satisfied, stating that there was no compensation at issue on the appeal.[23] I followed this approach in Abu-Ali v Martin-Brower Australia Pty Ltd, an application to set aside a Certificate of Determination so as to permit a worker to seek assessment of permanent impairment, to be assessed on a different basis to that employed originally.[24]
[23] O’Callaghan, [51].
[24] [2017] NSWWCCPD 25, [21]–[22].
It has been regularly held that Presidential appeals against arbitral decisions in ‘Workplace Injury Management Disputes’ do not satisfy the monetary threshold in s 352(3).[25]
[25] NSW Department of Education and Communities v Colefax [2012] NSWWCCPD 63, [22]–[24] and the cases cited therein.
The Arbitrator in the current proceedings was required to deal with dependency, apportionment of the lump sum provided in s 25(1)(a) of the 1987 Act between those found to be dependant, interest on that lump sum and the way in which payment of the lump sums apportioned to the dependants under the age of eighteen years was to be made. The only aspect of the Arbitrator’s decision challenged on this appeal goes to his orders for payment of the various sums apportioned to dependants under the age of eighteen to the NSW Trustee. The appeal does not relate in any way to the quantum of the amounts to be paid, the orders for apportionment are not challenged. The issue on appeal relates to the exercise of the Arbitrator’s discretion in respect of the orders for payment.
The first of the requirements in s 352(3) is that at subs (a), that the “amount of compensation at issue on the appeal” be at least $5,000. I cannot see that there is any amount of compensation at issue on the appeal. The amount of compensation awarded overall, and to each of the dependants individually, will not be varied by the outcome of the appeal. If the appeal were to succeed, the only practical effect would be to the identity of the trustee to which payment was to be made. The first of the requirements in s 352(3) is not satisfied.
As there is no amount of compensation at issue on the appeal, it follows that the requirements of subs (b) of s 352(3) similarly cannot be satisfied.
DECISION
The appeal cannot be brought as the requirements of s 352(3) of the 1998 Act are not satisfied.
Michael Snell
DEPUTY PRESIDENT
1 December 2020
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