Datta v Universal Consultancy Services Pty Ltd
[2006] NSWWCCPD 85
•12 May 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Datta v Universal Consultancy Services Pty Ltd [2006] NSWWCCPD 85
APPELLANT: Mrinal Datta
RESPONDENT: Universal Consultancy Services Pty Ltd
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC20916-04
DATE OF ARBITRATOR’S DECISION: 9 May 2005
DATE OF APPEAL DECISION: 12 May 2006
SUBJECT MATTER OF DECISION: Dependency; section 37 Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: In person
Respondent: Vardanega Roberts
ORDERS MADE ON APPEAL: Paragraph one of the Arbitrator's decision of 9 May 2005 is revoked and the following order is made:
Award for the Respondent.
Paragraph two of the Arbitrator's decision of 9 May 2005 is confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 31 May 2005 Mrinal Datta (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against decisions, dated 24 March 2004 and 31 May 2005.
The Respondent to the Appeal is Universal Consultancy Services Pty Ltd (‘the Respondent Employer’).
The Appellant Worker sustained serious injuries when he was assaulted in the course of his employment with the Respondent Employer on 3 February 2001. As a result of his injuries he brought a claim for compensation in the Compensation Court of NSW (‘the Court’) which was determined by Acting Judge Burke on 7 May 2002. His Honour made an award in favour of the Appellant Worker on the basis of total incapacity from 24 July 2001 to date and continuing at the rate applicable for a single worker with no dependents. In addition the Appellant Worker recovered lump sum compensation under section 66 of the WorkersCompensation Act 1987 (‘the 1987 Act’) in the sum of $9,000.00 in respect of 15% loss of power of speech and $4,000.00 in respect of 5% severe facial disfigurement. Compensation was also awarded in the sum of $10,000.00 under section 67 for pain and suffering. It should be noted that the first 26 weeks of compensation expired on 2 August 2001. Thereafter the Appellant Worker's award was pursuant to section 37 of the 1987 Act.
Some time after receiving his award the Appellant Worker returned to India where he now resides with his parents.
The papers before me do not include the pleadings before the Court and I have no details of claim made but it is common ground that the claim did not include a claim for any dependents.
The Appellant Worker is a single man who was born in India on 14 June 1968. He is the son of Sunil Bhusan Datta (‘Sunil’), a retired state government employee who was born on 8 March 1931, and Dipti Datta (‘Dipti’), a housewife born on 29 August 1936. Other relevant family members are his sisters Chitrita Datta (now Das) born on 9 December 1958 and Sangeeta Datta (now Mahanta) (‘Sangeeta’) born on 5 July 1969, and his brother Dr Tushar Kanti Datta (‘Dr Datta’) born on 2 May 1962.
By his Application to Resolve a Dispute (‘the Application’) filed on 20 December 2004 the Appellant Worker sought additional weekly compensation from 3 February 2001 on the grounds that his mother (Dipti) and his sister (Sangeeta) were ‘wholly or mainly dependent for support’ (see section 37 of the 1987 Act) on him. It should be noted that the Appellant Worker has not been legally represented at any time during the current proceedings in the Commission though he was legally represented in the Court proceedings.
The Respondent Employer disputes the claim and has made written submissions both before the Arbitrator and on appeal.
A teleconference was held on 1 March 2005 in which the Appellant Worker participated and argued that the Respondent Employer should not be permitted to have legal representation. Other procedural matters were discussed and it was agreed between the parties that the matter would be determined on the papers. To enable that to happen expeditiously orders were made on 1 March 2005 (though not formally recorded until 24 March 2005) by the Arbitrator about the filing of documents and submissions.
The Application was determined against the Appellant Worker by the Arbitrator on 9 May 2005. The Appellant Worker now appeals from the orders made on 1 March 2005 and on 9 May 2005.
THE DECISIONS UNDER REVIEW
By ex tempore orders made on 1 March 2005 and in a Statement of Reasons dated 24 March 2005 (‘the Interlocutory Decision’) the Arbitrator refused the Appellant Worker’s application under section 356 of the Workplace Injury Management and WorkersCompensation Act 1998 (‘the 1998 Act’) that the Respondent Employer not be permitted to have legal representation and made further orders for the further conduct of the proceedings. The Arbitrator also made certain procedural orders as follows:
1.the applicant to have until 11 March 2005 to reply, should he choose to do so, to the respondent’s letter of 11 January 2005;
2.the respondent to submit written submissions on or before 18 May 2005;
3.the applicant to respond by way of written submissions on or before 1 April 2005;
4.the respondent to file such further written submissions as deemed necessary on or before 6 April 2005, and
5.either party to be at liberty to apply to have the matter re-listed for a teleconference.
The ‘Certificate of Determination’, dated 9 May 2005 (‘the Substantive Decision’) records the Arbitrator’s orders as follows:
“1. Award in favour of the Respondent pursuant to section 37 of the 1987 Act;
2. No order as to Costs.”
ISSUES IN DISPUTE
The Interlocutory Decision
The issues in dispute in the Interlocutory Decision are whether the Arbitrator was in error in:
(a)allowing the Respondent Employer to be legally represented at the Arbitration when the Appellant Worker was not legally represented;
(b)allowing the Appellant Worker only 10 days to provide documents sought by the Respondent Employer, and
(c)allowing the Respondent Employer to file two sets of submissions when the Appellant Worker had only filed one set of submissions.
The Substantive Decision
The issues in dispute in the Substantive Decision are whether the Arbitrator was in error in:
(a)finding that the Appellant Worker’s mother and sister were not totally or mainly dependent for support on the Appellant Worker within the terms of section 37(4) of the Workers Compensation Act 1987 (‘the 1987 Act’);
(b)applying the wrong test to determine dependency under the 1987 Act;
(c)providing a Statement of Reasons for Decision (‘the Reasons’) that were too long;
(d)leaving no opportunity for the Appellant Worker to give oral evidence or be cross examined;
(e)failing to recognise that money paid to the Appellant Worker's parent’s was really money for the Appellant Worker's dependent sister;
(f)relying on unqualified contributions from unidentified persons;
(g)basing his decision on an ‘erroneous premise’;
(h)failing to make his decision on the basis of logically probative evidence;
(i)making a decision against the weight of the evidence, and
(j)allowing the Respondent Employer to file submissions three days outside the timetable set by the Arbitrator for the filing of submissions.
LEAVE TO APPEAL
The Interlocutory Decision
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Section 352 provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(1) A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2) The Commission is not to grant leave to appeal 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.
(3) If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4) An appeal can only be made within 28 days after the making of the decision appealed against.
(5) An appeal under this section is to be by way of review of the decision appealed against.
(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8) In this section, decision includes an award, interim award, order, determination, ruling and direction.”
As a ‘decision’ includes a ‘ruling and direction’, the rulings made by the Arbitrator on 1 March 2005 can be the subject of a ‘review’ under section 352 subject to the preconditions in that section being met.
No amount has been quantified in the Application but the claim is made under section 37 of the 1987 Act. As the first 26 weeks of compensation expired on 2 August 2001 the current claim starts on 3 August 2001 and, though the Application is silent on this issue, I assume it is a continuing claim for dependency. As at August 2001 the rate for a dependent spouse was $76.70pw and for a dependent child was $54.80pw. Allowing only $76.70pw from 3 August 2001 to date gives an amount well in excess of $5,000.00. Therefore the first limb of section 352(2) is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Appellant Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSW WCCC PD 5).
While it is possible to appeal an interlocutory decision it is necessary for the decision to have a real capacity to put the award of compensation in issue in the appeal (see Fletchers International Exports Pty Ltd v Regan [2004] NSW WCC PD 7). In Fletcher Deputy President Fleming stated at[27]
“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] NSWWCC PD21)).”
I have serious doubt as to whether the Interlocutory Decision in the present case raises issues that have a real capacity to put the award of Compensation in issue in the appeal, but as the Appellant Worker’s submissions in the Interlocutory Decision are interwoven with his submissions in the Substantive Decision, and as leave to appeal is granted in the Substantive Decision, I believe it is appropriate to grant leave in both matters.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The Respondent Employer submits that the appeal from the Interlocutory Decision is out of time. Time runs from the date of the Certificate of Determination. In this case that was not issued until 9 May 2005. Therefore the appeal against the Interlocutory Decision is also in time. This issue was considered by Deputy President Fleming in Woolsely v Pied Piper Pre-School (Wallerawang) Incorporated [2005] NSW WCC PD 77 where it was noted at [25]:
“Pied Piper’s submission, that the appeal was also ‘out of time’, lacks merit. It relies upon the fact that the Arbitrator made a direction in relation to medical reports on 28 May 2004, whereas the appeal against the final determination was not lodged until 4 August 2004. The whole of the Arbitrator’s final decision, including the effect of procedural orders made in the course of the proceedings before the Arbitrator, may be subject to review pursuant to an application made under section 352 of the 1998 Act. A Presidential Member reviewing the decision of an Arbitrator under section 352, is entitled to consider the effect, if any, of procedural or other orders made in the course of the Arbitrator’s deliberations. Challenges to interlocutory orders made by an Arbitrator are to be discouraged. In many cases the final determination, or indeed the parties agreed settlement of the dispute, may cure any alleged defect in such orders. Interlocutory orders crystallise in, and at the date of, the final decision, issued in the form of a Certificate of Determination. Time for appeal therefore runs from the date of the Certificate of Determination, in accordance with the Workers Compensation Commission Rules 2003.”
In the present case a letter headed “Outcome of Application for Dispute Resolution” was issued by the Commission to the parties on 24 March 2005. That letter purports to enclose a copy of the Certificate of Determination and Statement of Reasons. There was no Certificate of Determination of 24 March 2005 but the Arbitrator's ex tempore decision of 1 March 2005 had been transcribed and was attached. Therefore the only Certificate of Determination is that dated 9 May 2005.
I therefore grant leave to appeal the Interlocutory Decision.
The Substantive Decision
In respect of the Substantive Decision the monetary thresholds are met.
The appeal was filed in time.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of 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 Numbers 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.
FRESH EVIDENCE
The Appellant Worker seeks to rely on fresh evidence in the appeal.
The introduction of fresh evidence on appeal is governed by section 352(6) of the 1998 Act and by Practice Note 6 which provides:
“In general, the Commission will allow new evidence to be given only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
The evidence sought to be adduced on appeal is described by the Appellant Worker as being:
1.correspondence from the Respondent Employer's solicitor dated 11 January 2005. This letter is already included in the documents that were before the Arbitrator;
2.an email from the Commission to the Appellant Worker of 19 January 2005. This letter is part of the Commissions file;
3.recent receipts for items in respect of cable TV, telephone, sundries and prescribed medication for Sangeeta, and
4.a bank statement for the Appellant Worker for the period 20 August 2002 to 11 February 20005.
The reason given for not producing the above material at the Arbitrator was that the Respondent Employer’s solicitors did not “requisition for such document [sic] in their letter dated 11 January 2005” or at any other time.
The Respondent Employer rightly points out that all of the documents were available before the Arbitration hearing. The onus is at all times on the applicant (the Appellant Worker in this case) to prove his case and to present appropriate evidence. I am satisfied that with reasonable diligence the Appellant Worker could have obtained all of the above documents before the Arbitration hearing.
Further, the bank statement on which the Appellant Worker now seeks to rely adds nothing to the issues to be determined in this case. I am not satisfied that the refusal to admit the fresh evidence will cause a substantial injustice in the present case.
The application to admit fresh evidence is refused.
REVIEW
Before considering the issues in the current appeal it is appropriate to consider what is involved in a ‘review’ under section 352 of the 1998 Act. In Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6 the Commission considered the nature of a review and held at [11]:
“A consideration of the nature of the hearing before the Arbitrator at first instance, of the broad powers, functions and discretions exercisable by the Arbitrator and of the express limitations on evidence before the ‘review’ under section 352, lend support to the view that the Commission has a specific and limited role on appeal (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 31 August 2000). It is not an ‘appeal’ in the strict sense, as the Commission can receive further evidence. Similarly it is not a ‘rehearing’ of the matter where the Commission is re-exercising the power of the Arbitrator at first instance by hearing the matter ‘de novo’ and coming to a fresh decision based on all the evidence available at that later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 31 August 2000; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The ‘review’ is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by “... some legal, factual or discretionary error” (Allesh v Maunz [2000] HCA 40 (3 August 2000)).”
Not every error by an Arbitrator will lead to the decision under review being set aside on appeal. In Snow Confectionary Pty Ltd v Askin [2004] NSW WCC PD 56 it was held at [15]:
“The error must be such that, but for it, a different decision should have been made (Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 47; Absolon v NSW TAFE [1999] NSWCA 311). The jurisdiction of a Presidential member on appeal is to ‘review’ the decision of an Arbitrator. It is not intended that this review become a hearing de novo of the dispute (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6, Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7).”
UNREPRESENTED PARTY
The role of the Commission when an unrepresented party appears was discussed by Deputy President Byron in Smith v New South Wales Police Service [2004] NSW WCC PD 77 where he said at [30]:
“While in the circumstances, I am not confronted with the situation of an unrepresented person appearing before me in a physical sense, I am mindful of the obligations of the Commission in dealing with an unrepresented worker in proceedings before the Commission. An unrepresented person will ordinarily be at a disadvantage because of their lack of legal skill (Rjaski v Scitec Corporation Ltd [unreported] NSW CA 16 June, 1986 (Rjaski)). A court (and a tribunal) has an obligation to diminish this disadvantage so as to ensure a fair and just hearing (Rjaski; Minogue v HREOC [1999] FCA 85; Panagopoulos v Southern Healthcare Network [unreported] SCT Vic 15 September, 1997). However, the court or tribunal must remain neutral and must not provide an advantage to the unrepresented person over the party that is legally represented (Rjaski). (The relevant issues in dealing with unrepresented litigants were discussed in Reisner v Bratt [2004] NSWCA 22)). A determination of this appeal ‘on the papers’, with the relevant principles in mind, is appropriate.”
In the present case the Appellant Worker has corresponded regularly with the Commission staff and sought assistance on a range of procedural issues. The Commission has at all times provided the Appellant Worker with assistance on procedural matters. For example, by email on 9 May 2005 the Commission provided the Appellant Worker with a copy of Practice Direction No. 6 and by email of 10 May 2005 a copy of the relevant appeal application form together with the guide to lodging and appeal was sent to the Appellant Worker. Advice has been given by the Commission to the Appellant Worker about the following matters:
· the need to attach copies of unreported decisions (email 11 May 2005);
· that there was no need to have a solicitor lodge the appeal (email 10 May 2005);
· where to find case law online (email 16 May 2005), and
· the reasons why appeal documents may be rejected (email 19 May 2005).
The Appellant Worker requested that a Commission staff member comment on his submissions before they were filed. That request was refused in an email on 20 May 2005.
Before the Arbitrator the Appellant Worker was given every opportunity to present his case. The Arbitrator specifically notes that one of the reasons the matter was dealt with on the papers was because it would require the Respondent Employer to set out its “submissions for consideration by the Applicant at some leisure” (see Reasons at page seven) thus removing any disadvantage the Appellant Worker may have had with an oral hearing.
The Arbitrator also noted that at the time of the teleconference on 1 March 2005 previous correspondence gave a “very strong indication as to the type of evidence that would be of assistance to the Commission” (see Reasons at page seven).
In these circumstance I am satisfied that the Commission has complied with the provisions of the Commission’s Access and Equity Service Charter
SUBMISSIONS AND FINDINGS
The Substantive Decision
The Appellant Worker's main submission is that the Arbitrator erred in not accepting his claim that Sangeeta and Diptia were either wholly or mainly dependent on him for support under section 37 of the 1987 Act.
The relevant parts of Section 37 provide as follows:
“37 Weekly payment during total incapacity—after first 26 weeks
(1) The weekly payment of compensation to an injured worker in respect of any period of total incapacity for work (not being a period during the first 26 weeks of incapacity) shall be:
(a)90 per cent of the worker’s average weekly earnings, except that:
(i) the payment shall not exceed $235.20 per week,
(ii) in the case of a worker who is over 21 years of age at the time of payment—the payment shall not be less than $187.10 per week, and
(iii) in the case of a worker whose average weekly earnings do not exceed $170 per week—the payment shall be 100 per cent of those earnings or $153, whichever is the lesser amount,(b)in addition, $62 per week in respect of:
(i) a dependent wife or dependent husband of the worker, or
(ii) if there is no dependent wife or dependent husband at any time during which weekly payments are payable—any one dependent de facto spouse or other family member of the worker, and(c)in addition:
(i) in respect of the dependent children of the worker, the following amounts per week:
No of dependent children Additional amount per week 1 dependent child $44.30 2 dependent children $99.10 3 dependent children $164.16 4 dependent children $230.90 5 or more dependent children $230.90 plus $66.60 for each child in excess of 4 (ii) if there are no dependent children at any time during which weekly payments are payable—in respect of the dependent brothers and sisters of the worker, the same amounts per week as are payable under subparagraph (i) in respect of dependent children of the worker.
(1A) Despite subsection (1), for a maximum of 26 weeks the weekly payment of compensation to an injured worker in respect of any period of total incapacity for work (whether the period is during or after, or partly during and partly after, the first 26 weeks of incapacity) is the amount specified in section 36. This subsection applies even if the injury concerned resulted in any period of partial incapacity for work in respect of which the worker received or receives weekly payments of compensation.
(2) The total weekly payment under subsection (1) shall not exceed the worker’s current weekly wage rate determined from time to time in accordance with section 42.
(3) A weekly payment made under this section in respect of a dependent wife, husband, de facto spouse or other family member, child, brother or sister is payable only during the period of dependency.
(4) For the purposes of this section, a person is a dependent wife, husband, de facto spouse or other family member, child, brother or sister in relation to a worker if the person is totally or mainly dependent for support on the worker at the date compensation becomes payable to the worker or (whether married to the worker or born before or after that date) becomes so dependent after that date.
(5) A person is not precluded from being totally or mainly dependent for support on a worker merely because:
(a) in the case of a child—a payment is made in respect of the child under the Social Security Act 1991 of the Commonwealth, or
(b) in the case of a de facto spouse or other family member—the worker pays wages to the person for the performance of domestic services for the worker.”
One point raised by the Respondent Employer can be disposed of at the outset. It submits that an applicant can only recover compensation for either a dependent mother or a dependent sister, but not both. Reliance is placed on section 37(1)(b)(ii). The Appellant Worker does not have a dependent spouse so he falls within this subsection and is entitled to claim under the “other family member” provision. This allows him to claim for his mother or his sister because the definition of “other family member” includes “mother” and “sister”. However the subsection ends with “and”, followed by “in addition” (emphasis added) an applicant may claim compensation for dependent children. If there are “no dependent children” he may claim “in respect of the dependent brothers and sisters” (see section 37 (1)(c)(ii)).
Therefore the Respondent Employer’s submission that a worker can only claim a sister or a mother is not always correct. In section 37(1)(b)(ii) the “other family member” is claimed in lieu of having a spouse and compensation is calculated at the rate applicable for a spouse. In section 37(1)(c)(ii) the brothers and sisters can be claimed in lieu of any dependent children and compensation is calculated at the rate applicable for dependent children. What the section makes clear is that if a worker has no spouse then only one family member can be compensated under the spouse rate, that is, as if he or she were a spouse. But that does not stop a worker who has no spouse and no children from claiming a family member under section 37(1)(b)(ii) and a brother or sister under section 37(1)(c)(ii). Naturally this depends on there being a finding that the person concerned (be it a mother or a sister) is “wholly or mainly dependent” for support before any liability arises.
The matter is further complicated in the present claim however because the term “brother and sister” is defined in section 37(7) to mean:
“ ‘brother’ or ‘sister’, in relation to a worker, means a brother or sister of the worker who is:
(a) under the age of 16 years, or
(b) a student,
but does not include a person in respect of whom a weekly payment is being made under subsection (1) (b) (ii).”
In my opinion the position is that an applicant who has no spouse and no children may elect which “other family member” will be compensated under section 37(1)(b)(ii) and which will be compensated under section 37(1)(c)(ii). If a finding is made that the Appellant Worker's mother is wholly or mainly dependent for support under section 37(1)(b)(ii) then for the sister to be entitled to recover compensation she would need to be under the age of sixteen or a full time student. In the present case Sangeeta is obviously too old and is not a full time student. In addition, for reasons set out below I do not believe Sangeeta is wholly or mainly dependent for support on the Appellant Worker.
The question of dependency is a question of fact to be decided on the evidence in each case (see Aaffjes v Kearney (1978) 8 ALR 455).
The Appellant Worker has submitted that the relevant test is whether or not there was an expectation “on the part of the dependents for continuance of support”. The terminology used is similar to that used in many death claims where dependency was in issue. Claims by dependents in death claims are under section 25 or 26 of the 1987 Act and rely on the definition of “dependents” in section 4 of the 1998 Act. An applicant need only establish that they were “in part” dependent for support in order to succeed under those provisions. Cases decided under section 25 or 26 of the 1987 Act have no direct application to claims under section 37 which has its own independent operation (see Ritchie v Wambo Mining Corp Ltd (1995) 12 NSWCCR 273 (‘Ritchie’)).
Perhaps more importantly the point being made about there being an ‘expectation for support’ is based on there being a legal obligation on a worker to provide support for his or her children and spouse (see TNT Group 4 Ltd v Halioris (1987) 8 NSWLR 486 at 489). There is no such obligation on a worker in relation to his parents or siblings. In addition it is worth noting that TNT concerned a death claim, not a claim under section 37.
An applicant must establish that the people claimed to be wholly or mainly dependent for support are in fact dependent on him or her. The Arbitrator considered the Appellant Worker's evidence in detail and found as a question of fact that the evidence did not establish dependency as required by section 37.
The Appellant Worker challenges that finding in his submissions but in doing so makes some interesting comments. For example he states:
(a)that the expenses provided in his evidence are approximate only (see Appellant Worker's submissions at page 10);
(b)he sent money from Australia to India when he worked here, but “left such remittances for use by the dependents as and when necessary”. It is not clear who ‘the dependents’ were because the money was sent to his brother who then disbursed it on his behalf;
(c)commenting on the ‘remittances’ the Appellant Worker says at page 11 of his submissions that the intention was simply to “send money home in good faith”;
(d)the Appellant Worker's “parents controlled the money remitted” and “the fund was used to meet their own expenses” as well as those of his sister Sangeeta ;
(e)that the money was sent to India into Dr Datta’s account and then withdrawn for immediate expenses with the balance put into several term deposit accounts “on behalf of the dependents” to be drawn on as and when necessary;
(f)that the Appellant Worker sent money to his parents who “utilised that money in any way deemed necessary” (page 13);
The above quotes highlight that the Appellant Worker did send money to India and that the money was credited to Dr Datta’s account. I note that the money went into that account because neither his mother nor his sister had bank accounts. However evidence suggests that the Appellant Worker was providing financial assistance to his family as a whole who ‘utilised the money’ as they saw fit. Merely sending money ‘back home’ so that it forms part of a pool of money to be used by family members from time to time does not establish that certain specified individuals are ‘mainly dependent’ for support within the meaning of section 37.
The Shorter Oxford Dictionary defines ‘mainly’ to mean “in great degree, greatly, considerably, very much, a great deal” and also “for the most part; in the main; as the chief thing, chiefly, principally”. In my opinion the evidence falls well short of establishing dependency to such an extent for either Sangeeta or Dipti. What is established by the evidence and, in my opinion, is supported by the passages cited above, is that a pool of money was established which members of the family used from time to time. Certainly some money went to the benefit of Sangeeta and Dipti but it is simply not established that either person was wholly or mainly dependent on the Appellant Worker for support.
The Affidavit evidence before the Arbitrator was of limited assistance in determining the issue of dependency. The Affidavit of Sunil states at paragraph seven:
“Cost of renovation of [sic] house, marriage expenses of my daughter, day to day household expenses and purchases of other assets met [sic] out of finance provided by my son Mrinal Datta who has sent money through the savings bank account of my other son Tushar Kanti Datta.”
I accept that much of what Sunil says may well be true but it does not satisfy the test of ‘mainly dependent’ for support in respect of Sangeeta and Dipti.
Similarly the Affidavit of Dipti does no more than provide a self serving statement that “I are [sic] mainly dependent on my son Mrinal Datta”. It then adds an important comment as follows “in turn I perform domestic services for him”. Where a worker has been paying part of the worker’s earnings to his or her parents as board, the parents will not be regarded as being dependent on those payments unless the amount being paid exceeds the cost of the board provided (see Tamworth Colliery Co v Hall [1911] AC 665;McDowell v Perpetual Trustees Co Ltd [1938] WCR 125). There is no evidence to establish the value of the domestic services provided by Dipti nor to establish the amount paid by the Appellant Worker to his mother as support for her.
In the end the Arbitrator stated at paragraph 13(viii) on page 22:
“In circumstances where I do not have sufficient evidence before me to deduce that one of two alternatives inferences should be preferred to the other, I cannot arrive at a decision in favour of the Applicant on the balance of probabilities.”
I see no error in this conclusion and nothing has been put on appeal to indicate that the Arbitrator has made an error of fact or law.
The Appellant Worker submits that the Arbitrator applied the wrong test in determining dependency. I do not agree. The Arbitrator referred to and applied the tests set out in Spenceley v Deniliquin Shire Council (2001) 22 NSWCCR 7 (‘Spenceley’) and in Campbellv Department ofCommunity Services t/as Morisset Hospital (2000) 19 NSWCCR 336. He also referred to Li Yeen Lim v South Eastern Area Health Service WCC158-04 (‘Lim’) a decision of Arbitrator McDonald where a claim was made that the worker’s parents were dependent. I do not see any incorrect application of the principles discussed in those cases. Ultimately the question came down to whether the Arbitrator was satisfied that Sangeeta and Dipti were mainly dependent for support. He was not satisfied and I can see no error that would justify a different conclusion on ‘review’.
The Appellant Worker also challenges the Arbitrator's decision on the ground that the Reasons are too long. The Appellant Worker relies on Wright v South Eastern Sydney Area Health Service (Sydney Eye Hospital) [2003] NSW WCC PD 25 at [42] (‘Wright’) where Deputy President Fleming said that the provision of lengthy reasons would be unreasonable and inconsistent with the objectives of the Commission to provide a speedy resolution to workers compensation disputes.
An Arbitrator's obligation to provide reasons is set out in section 294 of the 1998 Act and in rule 73 of the Rules. That rule provides:
“73 Certificates of determination
(1) A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c) the reasoning processes that lead the Commission to the conclusions
it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
To his credit the Arbitrator has gone to considerable effort to analyse the legal and factual issues with great care and attention to detail. The fact that the Arbitrator's Reasons are set out in 22 pages does not in itself indicate an error. The Appellant Worker also makes the point at page eight of his submissions that the “manner in which the Arbitrator prepared his statement virtually sealed the fate of the Appellant”. With respect it is my opinion that the Arbitrator was attempting to be fair to the parties by indicating in detail his reasoning process and why he reached his ultimate conclusions. That is not an error in the circumstances of this case. I understand Deputy President Fleming to be saying in Wright that lengthy reasons are not necessary in order to comply with Rule 73, but that does not mean that an Arbitrator makes an error if he or she does give lengthy reasons.
The Appellant Worker also submits that the Arbitrator “left no opportunity for the Appellant to give evidence in lieu [sic] of cross examination” (see Appellant Worker's submissions page 12). The Arbitrator's ex tempore reasons given on 1 March 2005 record at page one that “it was agreed between the parties that the matter should finally be determined on the papers as a result of written submissions”. The Arbitrator then set a timetable for those submissions. There was no error in this approach. The Appellant Worker consented to the course that was adopted.
The Appellant Worker submits that the Arbitrator was in error in failing to recognise that money paid to the Appellant Worker's parents was money paid for the benefit of Sangeeta (see Appellant Worker's submissions at pages 12-13). In my view the Arbitrator was not in error on this issue. He had to assess whether Sangeeta was mainly dependent for support on the Appellant Worker. The Arbitrator was not satisfied that the evidence established that level of dependency. In particular he noted at page 10 of the Reasons:
“Whilst the Remittances are evidence of payments ‘in’ there is no attempt to outline a discernable pattern of expenditure/payments ‘out’ by way of regular financial support to either Mrs Datta or to Mrs Mahanta [Sangeeta ].”
I can see no error in that statement or the conclusion that flows from it, namely, that the Arbitrator was not satisfied on the evidence before him that Sangeeta and Dipti were mainly dependent for support on the Appellant Worker.
The Appellant Worker challenges the Arbitrator's suggestion at page 21 of the Reasons that financial assistance may have been provided from other unidentified sources. This conclusion flows from the Arbitrator's assessment of the financial records relied on by the Appellant Worker. A good example of this is found at page 17 paragraph (xxx) where the Arbitrator states:
“It is for the Applicant to prove his case. In this matter the nett [sic] expenses of the Applicant’s parents for the year ended the 31st March 2001, and 2002, were excess to the extent of Inr. 382,200 but apparently supported by borrowings rather than gifts. The parents are then said to have repaid a larger amount of Inr. 400,000 during the year to the 31st March 2003.
The Applicant has not indicated the source of these monies and it is not for an Arbitrator to speculate but for the Applicant to produce relevant evidence.” (emphasis added)
At page 16 paragraph (xxiii) of the Reasons the Arbitrator states:
“Paragraph 5 of the Explanatory Notes refers to other expenditures as ‘are mostly met out of my Remittances’. The possibility of financial assistance from other sources within the family is thus raised again.” (emphasis added)
The ‘explanatory notes’ referred to are the notes submitted by the Appellant Worker to support his claim before the Arbitrator.
Further at paragraph (xviii) on page 15 the Arbitrator notes that Sunil’s Affidavit suggests that assistance provided by the Appellant Worker was limited to money sent through Dr Datta’s account. A study of that account shows that there were insufficient funds in it to provide for anyone’s dependency after 5 April 2003. Therefore the Arbitrator has drawn an inference (open to him in my view) that funds may have been provided from other sources because the Appellant Worker does not identify “the source of ongoing payments” (see Reasons at page 15 paragraph (xix)).
I see no error in the Arbitrator's approach or conclusion on this issue.
Next it is submitted that the Arbitrator has based his decision on “erroneous premises” (see Appellant Worker's submissions at page 5). This submission relates to the Arbitrator's finding at paragraph (d) on page four of his Reasons that the date at which dependency is to be determined is “at the time when the Respondent [sic] worker first has a ‘week by week’ entitlement” (emphasis added). It is not clear what the Arbitrator meant by this expression. Is it the first time weekly compensation is paid or is it the first time the worker has an entitlement under section 37?
With respect I do not think the Arbitrator has correctly stated the law. The relevant phrase is found in section 37(4) of the 1987 Act which states that a person is a dependent if the person is mainly dependent for support on the worker “at the date compensation becomes payable to the worker”. The provision has been considered in Ritchie referred to earlier. In that case the worker received an award under section 37 on 6 May 1993. At that time the award included compensation for the worker and his dependent wife and children. From 1 July 1993 the wife obtained full time employment. Judge Johns considered the meaning of the phrase “date compensation becomes payable to the worker” and held that it is the date that weekly payment of compensation is payable to the worker “week by week”. Because the wife was employed as at 1 July 1993, she was not dependent on the worker for support and the award was amended accordingly. To find otherwise would lead to illogical and anomalous results. For example, if the date was found to be when the worker first has a week by week entitlement the fact that the wife in Ritchie had returned to work would not be taken into account and compensation would continue to be paid on the basis that she was dependent when in fact she had returned to full time employment. Similarly, if a spouse is working (and is therefore not dependent) at the date the worker first has a week by week entitlement and later ceases work then, on the reasoning applied by the Arbitrator, the worker could never be able to claim her as a dependent because she was not dependent at the time of the ‘first week by week entitlement’. That is not the intention of the Act and is not consistent with Ritchie.
The decision of Ritchie was considered in Spenceley cited above. In that case Judge Armitage held at page 10 that he agreed with the approach of Judge Johns in Ritchie and his Honour added:
“The plain intent, I think, of s 37(4) is to focus attention on the events that have actually happened at the time compensation becomes payable, so as to exclude the notion of weekly compensation nevertheless being payable in respect of persons who would, but for the incapacity created by the injury, have been dependent upon the worker, but are in fact not so dependent at the relevant time.”
Therefore the correct approach is to consider the question of dependency on an ongoing basis. If compensation is being paid weekly, then dependency can be assessed on a week by week basis so that if a person is not dependent at the date an award is made but circumstances change, then the Commission has the power to determine if the award should be varied to allow for a dependent.
However, whilst I think the Arbitrator was wrong in his understanding of section 37(4) I do not believe that error affects the outcome in the present matter because the Appellant Worker argues that his mother and sister have at all relevant times (regardless of the view one takes of section 37(4)) been mainly dependent on him for support. The Arbitrator found against the Appellant Worker on this essential factual issue. The Arbitrator's incorrect interpretation of section 37(4) has not affected that fact finding process because he considered the evidence of dependency from 3 August 2001 up to the time of his decision and found that he was not satisfied that the evidence supported such a claim at any time. I agree with this conclusion.
The Appellant Worker argues that the Arbitrator's decision was not based on logically probative evidence and was against the weight of the evidence. The Arbitrator did not find the Appellant Worker's evidence persuasive and did not accept it. That finding was open to him and, subject to the point I have made about section 37, I agree with the Arbitrator's conclusions and analysis.
It is also argued that the Arbitrator erred in allowing the Respondent Employer to file its submissions three days outside the timetable set on 1 March 2005. This point is dealt with by the Respondent Employer as part of the Interlocutory Decision, but the Appellant Worker deals with it in his appeal against the Substantive Decision. I think it is probably better to deal with it as part of the Substantive Decision because the complaint does not arise so much from the orders made on 1 March 2005 but from fact that the Arbitrator allowed the submissions to be filed late and that did not happen until the Substantive Decision was made.
The Respondent Employer's submissions before the Arbitrator were dated 18 March 2005 but are date stamped by the Commission on 21 March 2005. The orders made by the Arbitrator on 1 March 2005 required the Respondent Employer to “submit written submissions on or before 18 March 2005”. Therefore the Appellant Worker is correct to say that the Respondent Employer's submissions were three days late. The Appellant Worker could not do his submission until he received the Respondent Employer's submissions.
The Appellant Worker argues that the lateness of the Respondent Employer's submissions meant that his submissions were “less prepared than would otherwise have been”. The Appellant Worker then relies on section 290 of the 1998 Act. That section does not apply to a timetable for written submissions set by an Arbitrator but applies to the serving of evidence required to be served under the legislation. The Appellant Worker's references to the discretion to admit late evidence are misconceived. Submissions are not evidence. Timetables for written submissions are not formal rules of the Commission. The Arbitrator was entitled to consider the Respondent Employer's submissions. If the Appellant Worker was prejudiced by the fact that they were filed three days late he could have sought an extension of time for filing his submissions. He did not do so. In my opinion there was no prejudice and no denial of procedural fairness to the Appellant Worker. The Appellant Worker has made 22 pages of written submission in this appeal and I am sure that all points he wanted to ventilate have been made. Those submissions have been carefully considered.
The Interlocutory Decision
The Appellant Worker argued before the Arbitrator that the Respondent Employer should not be permitted legal representation because he was not legally represented. He relied on section 356 of the 1998 Act which gives the Commission a discretion to refuse to allow an insurer to be represented by a legal practitioner if the claimant is not represented. The Arbitrator considered the application and ruled against the Appellant Worker. On appeal it is submitted that the Arbitrator “has encouraged litigation in the Commission rather than allowing parties to resolve the matter between themselves” (see Appellant Worker's submissions at page seven). In addition it is claimed that the decision is another “event where prejudice was done to the unrepresented Appellant”.
Before the Arbitrator the Respondent Employer submitted that the claim was an unusual one, solicitors have an obligation not to take unfair advantage of an unrepresented party and the insurer had recommended that the Appellant Worker obtain legal advice.
Another relevant matter is the fact that free legal representation is available to workers wishing to bring claims in the Commission. That fact would have been know to the Appellant Worker as a result of his having already brought a claim in the Court arising from the same accident that grounds this claim.
I do not agree with the Appellant Worker's submission that by allowing the Respondent Employer to have legal representation the Arbitrator has encouraged litigation. In my opinion the involvement of legal practitioners often leads to a quicker more efficient resolution of claims.
No ground of prejudice was pointed to by the Appellant Worker in support of this point. No application was made for an adjournment so that legal advice could be obtained. The Appellant Worker had been advised by the Commission staff by email on 19 January 2005 that “the Commission cannot act for you and it appears appropriate that you should have legal representation”. The letter added the name and phone number of the Appellant Worker's solicitors who acted for him in the Court claim, and, in the alternative, suggested that he contact the Law Society to seek a solicitor. In his email of 12 January 2005 the Appellant Worker states that he had made contact with the Law Society of NSW and was told “that the Law Society does not participate in that regard”. It is not clear exactly what question the Appellant Worker put to the Law Society.
The Arbitrator's decision was based on a lack of persuasive evidence to support the Appellant Worker's claim, not on the basis of any legal tactics adopted by the Respondent Employer through its solicitors. I do not believe the Arbitrator was in error on this point and I do not believe the Appellant Worker was prejudiced by the fact that the Respondent Employer had legal representation.
The second ground of appeal against the Interlocutory Decision is that the Arbitrator only allowed the Appellant Worker from 1 March until 11 March 2005 to reply to the Respondent Employer’s letter of 11 January 2005 requesting particulars and additional documentation in support of the claim. This was a matter within the Arbitrator's discretion and was appropriate in the circumstances of the case. Substantial additional information was provided by the Appellant Worker and I do not believe he was prejudiced in any way by the Arbitrator's decision on this issue. No application was made for an extension of time.
The third ground of appeal against the Interlocutory Decision is that the Arbitrator allowed the Respondent Employer to file two sets of submissions whereas he was only allowed to file one set. In the Commission’s file the Respondent Employer has only filed one set of written submissions (dated 18 March 2005 but stamped by the Commission on 21 March 2005). I assume the Appellant Worker is referring to Arbitrator's order that the Respondent Employer be permitted to file further written submissions in reply to the Appellant Worker's submissions. That was never done so this complain has no foundation. In addition, it is common practice to allow a party to respond to any fresh matters that may arise in submissions. There was no prejudice to the Appellant Worker by adopting that practice in this case.
CONCLUSION
Subject to the specific matters I have dealt with above, I am satisfied that the Arbitrator's decision is not affected by any error of law, fact or discretion.
FORMAL ORDERS
Whilst the Arbitrator has not made any relevant error of fact, law or discretion in his reasons, the formal orders made in the Certificate of Determination state in paragraph one “Award in favour of the Respondent pursuant to Section 37 of the 1987 Act”. This order does not accurately reflect the findings made and constitutes an error which must be corrected on appeal. The factual finding means that the Appellant Worker has failed in his claim for additional weekly compensation. In these circumstances the appropriate order is “Award for the Respondent”.
DECISION
Paragraph one of the Arbitrator's decision of 9 May 2005 is revoked and the following order made:
“Award for the Respondent.”
Paragraph two of the Arbitrator's decision of 9 May 2005 is confirmed.
COSTS
No order as to costs of the appeal.
Bill Roche
Acting Deputy President
12 May 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE