Cooper-Crowley v State of New South Wales (South Western Sydney Local Health District)
[2025] NSWPIC 123
•3 April 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Cooper-Crowley v State of New South Wales (South Western Sydney Local Health District) & Ors [2025] NSWPIC 123 |
| APPLICANT: | Alexander Edwin James Cooper- Crowley |
| FIRST RESPONDENT: | State of New South Wales |
| SECOND RESPONDENT: | Bethany Patricia Cooper |
| THIRD RESPONDENT: | Lynette Christine Crowley |
| PRINCIPAL MEMBER: | Josephine Bamber |
| DATE OF DECISION: | 3 April 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Workers Compensation Act 1987 (1987 Act); claim for interest under section 109 of the 1998 Act; previous ex-tempore determination of apportionment of lump sum pursuant to section 25(1)(a) of the 1987 Act; Held – interest payable by first respondent at 2% above the cash rate published by the Reserve Bank of Australia from date when claim duly made to date when apportionment orders made. |
| DETERMINATIONS MADE: | The Commission determines: 1. The first respondent agrees to pay the applicant weekly compensation from 2. Pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 the first respondent is to pay interest as follows in relation to the sums apportioned pursuant to s 25(1)(a) of the Workers Compensation Act 1987: (a) to the applicant, Alexander Edwin James Cooper-Crowley, interest on the sum of $323,381.25 at the rate of 2% above the cash rate published by the Reserve Bank of Australia, as adjusted from time to time, from 10 October 2024 to (b) to the second respondent, Bethany Patricia Cooper, interest on the sum of $215,589.50 at the rate of 2% above the cash rate published by the Reserve Bank of Australia, as adjusted from time to time, from 20 November 2024 to 17 March 2025, and (c) to the third respondent, Lynette Christine Crowley, interest on the sum of $323,381.25 at the rate of 2% above the cash rate published by the Reserve Bank of Australia, as adjusted from time to time, from 24 June 2023 to 3. Pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 the first respondent is to pay interest in relation to the weekly compensation entitlement of the applicant from 10 October 2024 to today’s date. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
On 17 March 2025 in an arbitration hearing I gave oral reasons in relation to apportionment of the lump sum pursuant to s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act). Subsequently, a written Statement of Reasons- Extempore Orders was issued.
The applicant, Alexander Edwin James Cooper- Crowley is the son of the deceased worker, Grahame John Crowley, Bethany Patricia Cooper, the deceased’s daughter, and Lynette Christine Crowley, his sister.
At that arbitration hearing the parties’ legal representatives made oral submissions in relation to their respective claims for interest pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). These submissions were sound recorded.
There also remained outstanding the claim for weekly compensation on behalf of the applicant, which was stood over for a preliminary conference on 31 March 2025. At which time the parties agreed that the first respondent would pay the applicant weekly compensation from 3 September 2022 until he completes his studies or age of 21 at the applicable statutory rate applying from time to time. The applicant also made a claim for interest on the past payments of weekly compensation and relied on the same submissions made in relation to the interest claim regarding the apportioned sum under s 25(1)(a) of the 1987 Act.
This Certificate of Determination -Statement of Reasons deals with the claims for interest.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application in Respect to Death of Worker and attached documents filed
10 October 2024;(b) Reply filed by first respondent on 29 October 2024;
(c) Reply filed by second respondent on 20 November 2024;
(d) Reply filed by third respondent on 22 October 2024;
(e) Application to Lodge Additional Documents filed by second respondent on
13 January 2025, and(f) Applications to Lodge Additional Documents filed by the applicant on
10 March 2025 and 24 March 2025.
Oral evidence
There is no oral evidence. Oral submissions were made in relation to the claims for interest by the parties’ legal representatives and these have been sound recorded.
Appearances
The applicant was represented by Katharine Young, counsel instructed by Karena Nicholls from Coutts Lawyers and Conveyances. The first respondent was represented by Lachlan Robison, counsel, instructed by Tarana Singh from HWL Ebsworth Lawyers. The second respondent was represented by Phillip Perry, counsel, instructed by Elizabeth McDonald from MCW Lawyers. The third respondent was represented by Bruce McManamey, counsel, instructed by Zahra Panju from Turner Freeman Lawyers.
FINDINGS AND REASONS
All parties agreed that the rate of interest should be 2% above the cash rate set by the Reserve Bank of Australia (RBA) from time to time. The dispute in relation to interest relates to when each claim by the respective dependents was duly made.
The applicant submitted that his claim was duly made on 19 February 2024 when an amended summons was filed in the District Court joining the applicant to the proceedings. The matter at that time was being considered by the District Court because of concerns about whether it was federally impacted because the third respondent resided out of the State of New South Wales, in Queensland in the circumstances where the first respondent is the State of New South Wales. The alternate position of the applicant is that his claim was duly made when he filed the present application in the Commission on 10 October 2024.
The second respondent submitted that the insurer accepted liability to pay compensation for the death of the worker in October 2023 and it could have paid the sum into a trust account of the solicitors. It was argued that the dependents were deprived of their share of the lump sum since then. The second argument relies on the filing of the amended summons in the District Court on 19 February 2024 as at that time the second respondent was added to the proceedings. The third argument is the claim was duly made on 8 August 2024 when the second respondent served the first respondent with the documents she relied upon including her statement.
The third respondent’s counsel, Mr McManamey, submitted that the terms of s 109 of the 1998 Act sub-section 2 says interest cannot be awarded before “a” claim for compensation is duly made. On page 30 of second respondent’s reply is a copy of the notification form served by the third respondent dated 24 March 2023. So, she claims interest should run from that date. However, Mr McManamey advised that particulars had been sought and supplied on 24 June 2023, so this is an alternate date for when the claim was duly made by the third respondent. It was argued that this manifests itself when the insurer accepts liability on 24 October 2023, counsel submitted they could only accept liability in relation to a duly made claim because they acted upon it.
The initial summons in the District Court was amended on 19 February 2024 joining the other dependents.
Counsel argues that interest is payable to all dependents because “a” claim had been duly made by 24 June 2023 and because of s 109 of the 1998 that is all that is required. He submits that certainly his client, the third respondent, had duly made her claim by then.
The first respondent’s counsel, Mr Robison, submitted that this gloss put on s 109 of the 1998 Act is not correct. It was argued that a claim for interest is discretionary. There must be a duly made claim and this is a threshold. In relation to the argument that the lump sum could have been paid to one of the solicitors to hold in trust, Mr Robison submitted that such trust funds do not pay interest so such a payment would not have benefitted the dependents in this matter as the money could not be dispersed until the apportionment was resolved.
The first respondent submitted that there is no doubt that the third respondent duly made her claim on 24 March 2023 when she served her claim form. He submits that the other claimants never submitted formal claims. He argues that making a person a defendant in the District Court proceedings does not mean they have a duly made claim. He says that the applicant made his claim when filing his Application in the Commission on 10 October 2024 and that the second respondent made her claim when she filed her reply on
20 November 2024. However, the first respondent’s counsel submitted that the last date when the insurer had all the duly made claims was on 20 November 2024, and that date should apply to all dependents.The third respondent submitted in reply that Bennett v Jones set out the underlying principle, being because the respondent has the use of the dependents’ money interest should automatically run from the date of death. The second respondent submitted in reply that even if the funds could not go to the trust fund of a solicitor there was nothing preventing the insurer from setting up another trust and paying the money to it.
Dealing with this last point, I consider it fanciful to suggest that an insurer should set up a trust to pay the money to so that it could accumulate interest. There would be costs associated with setting up such a trust and fees that would render this proposition potentially expensive. One also has to consider that it is important for the funds to be securely held so they cannot be dissipated if a trustee company failed. Accordingly, I place no weight upon this submission.
The first respondent submitted that the third respondent had duly made her claim by
24 March 2023 when she served her claim form. The only reason counsel departed from this date was because he argued that the relevant date should be when the insurer had received all the duly made claims. As this submission and that of the third respondent in part turn on the wording of s 109 I have set it out below.Section 109 of the 1998 Act provides:
“(1) In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.
(2) Interest cannot be ordered under this section--
(a) on any compensation payable under Division 4 of Part 3 of the 1987 Act, or
(b) on any compensation payable under this Act for any period before a claim for the compensation was duly made, or
(c) on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102.
(3) This section does not--
(a) authorise the giving of interest upon interest, or
(b) apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.”
I do not accept Mr McManamey’s interpretation of s 109. In sub-paragraph 1 there is reference to “the Commission may order that there is to be included, in any sum to be paid”. (my emphasis) In this matter I have ordered that there is a sum to be paid to the applicant, a separate sum to each of the second and third respondents. Furthermore, the sub-section refers to “the sum”. I do not interpret this as being the whole sum that can be paid under
s 25(1)(a) of the 1987 Act but to the sum ordered to be paid to each dependent.I do not accept Mr Robison’s submission for the first respondent that the section requires all claims to be duly made before the payment of interest can run. I find that cannot be inferred from a reading of the plain text of the section.
In Haidary v Wandella Pet Foods Pty Ltd,[1] Deputy President Fleming said:
“The award of interest by the Commission, pursuant to section 109 of the 1998 Act is discretionary. Mr Haidary will only be entitled to interest, if awarded, on those amounts of his weekly entitlement that were unpaid, and only from the date that his claim ‘was duly made’. The likely amount of interest that would be due on these sums is small, relative to the whole of his claim, but nonetheless they may form part of Mr Haidary’s entitlement. The purpose of ordering interest on an award is to compensate the worker for the loss of his or her income, not to penalise the employer (Virag v James N Kirby t/as Betts Electric Motors (1990) 6 NSWCCR; Healey v McPherson Binding Pty Ltd (1989) 5 NSWCCR 139).”
[1] [2005] NSWWCCPD, Haidary.
President Keating said in Kaur v Thales Underwater Systems Pty Ltd:[2]
“Section 109(2)(b) of the 1998 Act prohibits interest on any award of compensation payable under the Act for any period before a claim for compensation on behalf of the appellants was duly made. I accept the submission that the claim for compensation on behalf of the appellants was not duly made until the day of the arbitration. I therefore accept Thales’s submission that, as at the arbitration, the appellants could not be entitled to interest pursuant to s 109 of the 1998 Act.”
[2] [2011] NSWWCCPD 6, Kaur.
The first respondent submitted that he was not going to argue that the claims were not duly made until the day of the arbitration hearing.
“Duly made” has been held to mean “fully particularised”. It was applied in Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited [2020] NSWWCC 36, in which Arbitrator Isaksen, as he then was, referred to the decision of Arbitrator Wynyard, as he then was, in Shanika Cooper v G & W Mudge Concreting Pty Ltd & others (WCC6411/18) and his own decision in Lavelle v David Paul Browne & Ors.[3]
[3] WCC 533/19.
It is possible for the claims of the parties to be “duly made” at different times in my view.
Having rejected the submission from the first respondent that the claims were not duly made until the last claim was made, his earlier expressed position that in relation to the third respondent, Lynette Christine Crowley she had duly made her claim when submitting the claim form on 24 March 2023. However, as Mr McManamey fairly conceded she did not supply requested particulars until 24 June 2023, and considering the authorities quoted above, I consider when exercising my discretion that this is the date she duly made her claim.
I also accept first respondent’s assertion that the second respondent, Bethany Patricia Cooper, duly made when she filed her reply on 20 November 2024 and that the applicant, Alexander Cooper-Crowley, made his duly made claim when he filed his application in the Commission.
I find that the claims of the dependents were duly made as follows:
(a) applicant – 10 October 2024;
(b) second respondent - 20 November 2024, and
(c) third respondent – 24 June 2023.
I have made orders in the certificate of determination to reflect these dates. Interest under s 109 ends on 17 March 2025 because this the date I made the apportionment orders.
In relation to the interest on the weekly compensation, the parties agreed I should consider the same submissions that the applicant and first respondent made in relation to interest on the lump sum, and therefore use the same date as I determine when awarding the interest on the lump sum, which is 10 October 2024.
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