FIS Systems Pty Ltd v Fieldmartin

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	FIS Systems Pty Ltd v Fieldmartin & Ors [2023] NSWPIC 114
APPLICANT:	FIS Systems Pty Ltd
FIRST RESPONDENT:	Jay-Ashley Fieldmartin
second RESPONDENT:	Kathleen Plunkett
third RESPONDENT:	Stephen James Mulligan
fourth RESPONDENT:	Nicole Hucksteppe
fifth RESPONDENT:	Isabella Hucksteppe
sixth RESPONDENT:	Joshua Benjamin Hucksteppe
seventh RESPONDENT:	Neil John Hucksteppe
eighthRESPONDENT:	Sam Heine Hensan
ninthRESPONDENT:	Robert Lengyel
tenthRESPONDENT:	Matilda Moore
PRINCIPAL Member:	Josephine Bamber
DATE OF DECISION:	20 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Death claim issue as to whether any of the persons making a claim are dependants; Held – the deceased worker died from injuries sustained in the course of his employment with the applicant; the compensation payable by the applicant in accordance with section 25(1)(a) of the Workers Compensation Act 1987 (1987 Act) on the death of the deceased worker is $834,200; pursuant to section 25 of the 1987 Act and section 4 of the Workplace Injury Management and Workers Compensation Act 1998 the third to tenth respondents are not entitled to compensation as they are not dependants of the deceased worker; pursuant to sections 25(1)(a) and 32 of the 1987 Act the deceased worker has left no dependants, accordingly the compensation payable of $834,200 is to be paid by the applicant to the legal personal representatives of deceased.
determinations made:	1. That the deceased worker, Marc Andrew Sebastian Field, died on 28 December 2020 from injuries sustained in the course of his employment with the applicant, FIS Systems Pty Ltd. 2. That the compensation payable by the applicant in accordance with s 25(1)(a) of the Workers Compensation Act 1987 on the death of the deceased worker is $834,200. 3. Pursuant to s 25 of the Workers Compensation Act 1987 and s 4 of the Workplace Injury Management and Workers Compensation Act 1998 the third to tenth respondents are not entitled to compensation as they are not dependants of the deceased worker. 4. Pursuant to s 25(1)(a) and s 32 of the Workers Compensation Act 1987 the deceased worker has left no dependants, accordingly the compensation payable of $834,200 is to be paid by the applicant to the legal personal representatives of deceased, Jay-Ashley Fieldmartin and Kathleen Plunkett.

STATEMENT OF REASONS

BACKGROUND

The Application in Respect of the Death of a Worker (the Application) has been filed by the deceased’s employer, FIS Systems Pty Ltd (the applicant), seeking orders in relation to the apportionment of the lump sum of $834,200 provided by s 25 of the Workers Compensation Act 1987 (the 1987 Act).
The deceased, Marc Andrew Sebastian Field, commenced work as a sales director in April 2019 with the applicant. He sustained a psychological injury arising out of or in the course of his employment with the deemed date of injury of 13 August 2020. He died on
28 December 2020. The applicant has admitted his death is as a result of the workplace injury.
The central issue requiring the determination of the Personal Injury Commission (the Commission) is whether any of the many persons who have claimed compensation were dependent on the deceased at the time of his death.

PARTIES

The first respondent is Jay-Ashley Fieldmartin. He is an executor of the deceased’s estate, appointed under his Will dated 24 November 2017 and is in receipt of the grant of probate. He is also the deceased’s nephew. He is not making a claim of dependency. He is represented by John McDermott, solicitor who has made submissions on his behalf.
The second respondent is Kathleen Mary Plunkett who is known as Olive. She is an executor of the deceased’s estate, appointed under his Will dated 24 November 2017 and is in receipt of the grant of probate with Mr Fieldmartin. She is represented by Mr Thomas Felizzi, solicitor, Carroll & O’Dea Lawyers.
The third respondent is Stephen James Mulligan and is represented by Ms Nadia Baker, solicitor, from Walker Law Group. He is a friend of the deceased who is named as a beneficiary in the deceased’s Will. Submissions from Ms Warren, counsel, dated
21 October 2022 have been filed on his behalf.
The fourth respondent is Nicole Hucksteppe. She is a friend of the deceased who has been named as a beneficiary in the deceased’s Will. She is represented by Ms Jasmina Mackovic, solicitor from Slater & Gordon. Submissions have been filed from Jodie Magee, counsel, dated 20 October 2022.
The fifth respondent is Isabella Hucksteppe. She is the deceased’s goddaughter and is named in his Will as a beneficiary. She is represented by Ms Sarah Hunt, solicitor, from Shine Lawyers and Mr Lachlan Robison, counsel, has provided submissions dated 19 October 2022. Ms Hunt provided a further brief submission dated 4 November 2022.
The sixth respondent is Joshua Benjamin Hucksteppe. He is a friend of the deceased who has been named as a beneficiary in the deceased’s Will. He is represented by Mr Peter Li solicitor from Masselos & Co who has provided submissions filed on 21 October 2022.
The seventh respondent is Neil John Hucksteppe. He is a friend of the deceased who has been named as a beneficiary in the deceased’s Will. He is represented by Ms Helen Cook, solicitor. Submissions have been made on his behalf by Mr Joe Hallion, counsel.
The eight respondent is Sam Heine Hensan. He is represented by Ms Samantha Harrison solicitor from Shanahan Tudhope Lawyers. I note this respondent’s surname is spelt “Hensan” on the front of his reply form, “Hansen” on the heading of his statement and “Henson” above his signature on his statement dated 16 August 2022. He is a friend of the deceased. I will use the spelling Hensan as that is the name on the Reply form. Submissions have been made on his behalf by Mr Dewashish Adhikary, counsel.
The ninth respondent is Robert Lengyel. He is represented by Ms Krystal Parisis, solicitor from Santone Lawyers. He is a friend of the deceased and husband of Mr Hensan. His counsel Boris Necovski has provided submission dated 20 October 2022.
The tenth respondent is Matilda Moore who appears via her mother Sharon Moore and is represented by Ms Amanda Bond, solicitor from Gillis Delaney Lawyers. Submissions have been made by Nicole Compton, counsel, dated 21 October 2022.

PROCEDURE BEFORE THE COMMISSION

The Commission conducted various preliminary conferences with the parties following which directions were made for the parties to file written submissions. I am satisfied I have sufficient information to determine the matter without conducting an Arbitration hearing and I am determining the matter “on the papers”.
I am satisfied the parties have been given sufficient opportunity to resolve the matter but are unable to do so due to the issues in dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    the Application;
(b)    first respondent’s Reply dated 16 August 2022;
(c)    second respondent’s Reply dated 15 August 2022;
(d)    third respondent’s Reply dated 16 August 2022;
(e)    fourth respondent’s Reply dated 23 September 2022;
(f)    fifth respondent’s Reply dated 18 August 2022;
(g)    sixth respondent’s Reply dated 17 August 2022;
(h)    seventh respondent’s Reply dated 16 August 2022;
(i)    eight respondent’s Reply dated 16 August 2022;
(j)    tenth respondent’s Reply dated 30 August 2022;
(k)    Application to Admit Late Documents dated 18 August 2022 filed by the third respondent;
(l)    Application to Admit Late Documents dated 26 August 2022 filed by the applicant attaching an email from Sarah Field dated 21 August 2022;
(m)     Application to Admit Late Documents dated 14 September 2022 filed by the first respondent attaching initial submissions;
(n)    Application to Admit Late Documents dated 21 September 2022 filed by the fifth respondent;
(o)    Application to Admit Late Documents dated 26 September 2022 filed by the ninth respondent attaching bank records of the deceased;
(p)    Submissions by third respondent dated 21 October 2022;
(q)    Submissions by fourth respondent dated 20 October 2022 filed in Application to Admit Late Documents dated 20 October 2022;
(r)    Submissions by fifth respondent dated 19 October 2022 filed in Application to Admit Late Documents dated 21 October 2022;
(s)    Submissions by sixth respondent filed 21 October 2022;
(t)    Submissions by seventh respondent dated 25 October 2022;
(u)    Submissions by eighth respondent dated 18 October 2022;
(v)    Submissions by ninth respondent dated 20 October 2022;
(w)   Submissions by tenth respondent dated 21 October 2022;
(x)    Submissions in reply by fourth respondent dated 2 November 2022 filed in Application to Admit Late Documents dated 3 November 2022;
(y)    Submissions by second respondent dated 4 November 2022 filed in Application to Admit Late Documents dated 4 November 2022;
(z)    Submissions by fifth respondent dated 4 November 2022 filed in Application to Admit Late Documents dated 4 November 2022, and
(aa)    Submissions by the applicant filed in Application to Admit Documents dated 10 November 2022

FINDINGS AND REASONS

In this matter there are many persons claiming dependency on the deceased worker. The parties need to understand that the workers compensation scheme is a statutory scheme and entitlement to compensation is determined when there is an entitlement under the relevant legislation. Unfortunately many of the submissions filed have not considered all the relevant provisions in the 1987 Act and the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Many of the submissions focus on the phrase “dependent for support” without considering the additional element that is in the 1998 Act in the definitions of “dependants”, “member of a family” and, in the 1987 Act, with the definition of “child of the worker”.
None of the cases cited by the parties are authority for the submissions which have been advanced that the definition of “member of a family” can be interpreted to include close personal friends who consider themselves to be members of each other’s family.
In the case of TNT Group 4 Pty Ltd v Halioris[1] McHugh JJA found at [490E]:
“for the purposes of the Workers Compensation Act 1926, s8, a person is dependent on a deceased worker if, at the date of death, he or she fell within one of the specified relationships and had a reasonable expectation that the deceased would provide support for him or her either at that time or in the future.”
[1] (1987) 8 NSWLR 486, Halioris.
Halioris dealt with a claim under the 1926 Act. The 1987 Act and the 1998 Act also create specified relationships that a person needs to come within, without which they cannot be dependants.

Legislative provisions

Section 25 (1) (a) of the 1987 Act provides that if the death results from an injury the lump sum death benefit 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, the lump sum is to be paid to the worker’s legal personal representative.
This section has several elements that need to be met for a person to be entitled to compensation under the section:
(a)    the first is that the death has to result from an injury. This has been admitted by the applicant;
(b)    the second is that the person needs to be a “dependant”, and
(c)    the third element is if there are no dependants then the lump sum is paid to the legal personal representative of the deceased. As the first and second respondents have been awarded the grant of probate due to their status as executors of the deceased’s Will, they are the legal personal representatives of the deceased.
This matter is concerned with whether the third to tenth respondents are “dependants” of the deceased. There are several legislative provisions to consider when coming to a determination. The definition of “dependants” has two main elements. Firstly, “such members of the worker’s family” and secondly, “dependent for support”.
Section 4 of the (the 1998 Act) defines “dependants” as follows:
“‘dependants’ of a worker means such of the members of the worker's family as were wholly or in part dependent for support on the worker at the time of the worker's death, or would but for the incapacity due to the injury have been so dependent, and includes-
(a)a person so dependent to whom the worker stands in the place of a parent or a person so dependent who stands in the place of a parent to the worker, and
(b)a divorced spouse of the worker so dependent, and
(c)a person so dependent who--
(i)in relation to an injury received before the commencement of Schedule 7 to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 --although not legally married to the worker, lived with the worker as the worker's husband or wife on a permanent and genuine domestic basis, or
(ii) in relation to an injury received after that commencement--is the de facto partner of the worker.
Note: ‘De facto partner’ is defined in section 21C of the Interpretation Act 1987.”
Section 4 of the 1998 Act also defines “member of a family”. It provides:
“member of a family” means spouse (including wife or husband), father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother or half-sister.”
“Spouse” of a person is defined in s 4 of the 1998 Act to mean a person to whom the person is legally married (including a husband or wife) or a defacto partner of the person.
Section 25(5) of the 1987 Act defines “child of the worker” as a child or step child of the worker and includes a person to whom the worker stood in place of a parent.
Section 4 of the 1998 Act also has a definition of “related” as follows:
“(a) Persons are
‘related’ if--
(i) one is the parent, or another ancestor, of the other, or
(ii) one is the child, or another descendant, of the other, or
(iii) they have a parent in common.
(b) For the purposes of paragraph (a)--
(i) a person is taken to be an ancestor or descendant of another person even if the relationship between them is traced through, or to, a person who is or was an adopted child, and
(ii) the relationship of parent and child between an adoptive parent and an adopted child is taken to continue even though the order by which the adoption was effected has been annulled, cancelled or discharged or the adoption has otherwise ceased to be effective, and
(iii) the relationship between an adopted child and the adoptive parent, or each of the adoptive parents, is taken to be or to have been the natural relationship of child and parent, and
(iv) a person who has been adopted more than once is taken to be the child of each person by whom he or she has been adopted.
(c) In paragraph (b),
‘adopted’ means adopted under the law of any place, whether in Australia or not, relating to the adoption of children.
(5A) Subsection (5) applies in relation to a child whose parentage is transferred as a result of a parentage order, or an Interstate parentage order, within the meaning of the Surrogacy Act 2010 in the same way as it applies in relation to an adopted child. For that purpose, a reference in that subsection to an adoptive parent is to be read as a reference to a person to whom the parentage of a child is transferred under such a parentage order.”
The principles of statutory construction have been discussed in many cases and are set out below.
The High Court in Project Blue Sky v Australian Broadcasting Authority[2] stated:
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[2] [1998] HCA 28; 194 CLR 355 (ProjectBlue Sky).
[3] Project Blue Sky, [69] – [71] (per McHugh, Gummow, Kirby and Hayne JJ).
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.”[3] (citations omitted).
In Hesami v Hong Australia Corporation Pty Ltd,[4] Deputy President Roche summarised the principles for statutory interpretation that were considered by the Court of Appeal in Wilson v State Rail Authority of New South Wales:[5]
[4] [2011] NSWWCCPD 14, Hesami.
[5] [2010] NSWCA 198, Wilson.
“In interpreting this provision, I must apply the principles of statutory construction explained by Allsop P (Giles and Hodgson JJA agreeing) in Wilson v State Rail Authority of New South Wales. It is convenient to set out his Honour’s statement in point form (excluding citations):
(a) ‘[i]t is the language of Parliament that must be interpreted and construed’;
(b) ‘in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context’;
(c) ‘[c]ontext is to be considered in the first instance, not merely when some ambiguity is discerned’;
(d) ‘[c]ontext is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed’;
(e) ‘[f]undamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose;’
(f) ‘general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect.’
…”
I find there is no ambiguity in the text of the relevant provisions, being s 25(1)(a) of the 1987 Act and the definitions in s 4 of the 1998 Act of “dependant” and “member of a family”.
I will deal further with the statutory interpretation as I deal with each parties’ submissions below.

Jay-Ashley Fieldmartin

Jay-Ashley Fieldmartin has included in his Reply a statutory declaration dated
15 August 2022. He resides in the United Kingdom. He is the nephew of the deceased and is the co-executor of the deceased’s Will and holds a grant of probate from the Supreme Court of New South Wales. At the time of the grant of probate he resided in Bondi Junction, New South Wales. He states he lived with the deceased for about six months in 2019 and believes he and his co-executor Ms Plunkett are the people most familiar with the deceased’s financial affairs.

He said apart from the time he lived with him the deceased lived on his own. At one time
Mr Fieldmartin held a bank card which he could operate as a subsidiary capacity on the deceased’s bank account. He has had access to the deceased’s bank statements for the year prior to his death and advises that at no stage did the deceased make regular payments to any individual. He states that the bank statements contain no indication that the deceased gifted any payment to any individual.
Mr Fieldmartin states that his positions as co-executor and principal beneficiary under the Will were such that Mr Fieldmartin believes the deceased would have indicated to him if any person was dependent on him financially or otherwise.
He adds that prior to his death the deceased told him in a conversation it was his intention that his Will dated 12 November 2017 remain unaltered. He says after the deceased’s death Nicole Hucksteppe requested he give her a large painting from the deceased’s possessions which was worth probably in excess of $10,000 and she also requested Mr Fieldmartin’s grandmother’s pearls. He refused these requests. He states in the Will the deceased specifically left these items to him.
His solicitor, Mr McDermott, has provided a letter to the Commission dated 16 August 2022 disputing that the various respondents have provided evidence of dependence on the deceased.
Mr Fieldmartin is the first respondent in these proceedings and initial submissions were filed on his behalf dated 14 September 2022. They are quite detailed, comprising 12 pages so they are not reproduced below in their entirety. The main point of the submission relates to the definition of “dependants” in s 4 of the 1998 Act and submits that none of the parties meet that definition.
Reference is also made to the definition of “family” in the Oxford English Dictionary as “a group consisting of one or two parents and their children. Descendants of a common ancestor”.
In addition, various cases were cited to illustrate the evidence needed to show a non-financial dependency, such as discussed in Richardson v Turfco Australia Pty Ltd and Albury Real Estate Pty Ltd v Rouse & Anor[6], with facts such as the deceased doing work on a farm for a family member.
[6] (2006) NSWWCCPD 139, Rouse.
It is submitted that none of the respondents had provided such evidence to lead to a qualification of dependency under s 25 of the 1987 Act and s 4 of the 1998 Act. It is submitted that the relationship between the deceased and the respondents was of a social nature, not dependency.
It was submitted in relation to Isabella Hucksteppe, even though she had lived with the deceased in 2016, that situation did not continue or exist at the time of his death.
In relation to all of the respondents is it submitted none were “family” of the deceased and so their claims fail and in addition their evidence did not establish dependency. In relation to Matilda Moore it was submitted she had a family in the United Kingdom so again she does not come within the definition of “dependant”. Furthermore, it was submitted that the level of financial payments to Matilda was not at a level to establish she was dependent on the deceased.
Mr McDermott has filed detailed submissions (48 pages) in reply to those filed by all of the respondents. I do not propose to summarise all of these submissions. However, the main thrust of his submissions is firstly that none of the respondents fall within the prescribed persons in the definition of “dependants” in s 4 of the 1998 Act. Secondly, he makes submissions in relation to each respondent challenging that they were dependent upon the deceased for support.

Kathleen Mary Plunkett

Kathleen Mary Plunkett is also known as Olive. She is an executor of the Will of the deceased, as well as being a friend and beneficiary. She has provided a statutory declaration dated 20 June 2022.[7] She has also provided a Reply attaching a further statutory declaration dated 11 August 2022 in which she confirms she is not claiming as a dependant under the workers compensation legislation.
[7] Application p 54.
She has provided evidence in this declaration that she was a close personal friend of the deceased and he had always told her he wanted his estate to go back to his English family. She says six months before his death he said this and he also discussed potentially changing his Will to include his sister as a beneficiary.
She says in the two years before his death they had many conversations about his finances in which he disclosed he was struggling to maintain his mortgage and day to day living expenses and he had a high level of financial debts. She says the deceased never indicated to her he was financially supporting anyone else. She describes him as very kind and generous. As an executor of his Will she seeks orders for payment of the lump sum to the executors, to be distributed as part of the residual of deceased’s estate.
In her submissions dated 15 August 2022 she submits that none of the persons asserting dependency meet the workers compensation legislative definition. She argues that the plain English definitions of “dependant” and “beneficiary” are not interchangeable. She seeks, as no person was dependent on the deceased, for the Commission to make an order under s 32 of the 1987 Act to pay the lump sum to the legal personal representatives.[8]
[8] Second respondent’s reply p 16.
Further submissions have been filed dated 4 November 2022 in which the submissions of the first respondent dated 2 November 2022 are endorsed and reference is made to the definitions of “dependants” in s 4 of the 1998 Act and submits that none of the respondents have demonstrated they were members of the deceased’s family. The submission also asserts none of the respondents have demonstrated they were wholly or partly dependent on the deceased for support. I have not focused on this part of the submissions as a potential claimant has to satisfy both aspects of the definition of “dependants” and I have determined that none of the third to tenth respondents have established they were a member of the deceased’s family, or a defacto of the deceased or a person so dependent to whom the worker stands in the place of a parent.

Stephen James Mulligan

Mr Mulligan provided a statutory declaration dated 10 June 2022 in which he states he is a friend of the deceased and is named as a beneficiary in the deceased’s Will[9]. He has also provided a statement in his reply dated 16 August 2022 and a statutory declaration dated
[9] Application p 40.
17 August 2022. He is aged 42 and lives in Surry Hills. He states that he met the deceased in 2014 through a mutual friend. He says he was a close friend of the deceased and refers to the generosity of the deceased. He relates that on 19 December 2020 the deceased hosted him and his partner to lunch for Christmas at Woolloomooloo. He also refers to travel plans they all had.
Notwithstanding at [9] that Mr Mulligan states “we were each other’s family in Sydney” they were not related nor in a defacto relationship.
He states that the deceased had told him that Mr Jay-Ashley Fieldmartin was his only relative by blood in Australia and that the deceased had not spoken to him in the year prior to his death.
Submissions have been filed on behalf of Mr Mulligan dated 21 October 2022 prepared by Ms Warren, counsel. She does not refer to the definitions of “dependants” or “member of a family” in s 4 of the 1998 Act. She relies upon Mr Mulligan’s statement they viewed each other as each other’s family in Sydney. The passages of the cases she refers to do not deal with these definitions in s 4.
Ms Warren submits that the Commission should find that Mr Mulligan had a “close relationship” with the deceased. However, this is not the test for coming within the definition of “dependants”. I find he is not a member of the deceased’s family because he is not a person listed in the definition of “member of a family”. He does not assert he was in a defacto relationship with the deceased.
Therefore, I find he was not a dependant of the deceased and has no entitlement to the lump sum compensation payable on the death of the deceased.

Nicole Hucksteppe

Nicole Hucksteppe provided a statutory declaration dated 15 June 2022 in which she states she is a friend of the deceased and is named as a beneficiary in the deceased’s Will[10]. In her counsel’s submissions there is no attempt made to deal with the legislative requirements of s25(1)(a) of the 1987 Act or the definitions in s4 of the 1998 Act, particularly that of “member of a family”. I note counsel has filed submissions in reply dated 2 November 2022 stating she does not oppose the submissions made by the third to tenth respondents and makes a submission about interest.
[10] Application p 48.
Quite simply I find that Nicole Hucksteppe is not a dependant of the deceased, she was not a member of his family as defined by the legislation. In dealing with other counsels’ submissions, who have considered these definitions, I have given reasons why these definitions cannot be extended to people who considered themselves in a close relationship with the deceased and where the deceased and they may even have said they regarded themselves as family. These reasons also apply to Nicole Hucksteppe and I find she has no entitlement to the lump sum compensation payable on the death of the deceased

Isabella Hucksteppe

Isabella Hucksteppe provided a statutory declaration dated 15 June 2022 in which she states she is a goddaughter of the deceased and a beneficiary under his Will[11].She has also provided a declaration dated 21 September 2022. She is presently aged 28 and resides with her partner. She relates how she knew the deceased. She says he came into her life when she was eight years old and living with her parents in Singapore. The deceased celebrated all Jewish holidays as well as birthdays and Christmas with the Hucksteppe family. She states at the end of 2010 the deceased moved to Sydney.
[11] Application p 42.
Ms Hucksteppe states the plan was for her to finish her final two years of schooling in Australia. Her grandmother resided in Paddington and she was going to move into her home and live with her. However, her grandmother injured her leg in Singapore and broke her foot and could not travel back to Sydney. She says her parents could not go with her to Sydney as they were both working in Singapore.
At [22] of her statutory declaration she states the deceased moved into her grandmother’s house and was her guardian for the next six months until her grandmother could return to Australia. This was in 2011. She says the deceased stood in as a parent for her and he cooked her meals, maintained the home and looked after her as if he was her father. He would pick her up from school events and sign permission slips.
She says after six months her grandmother returned and she lived with her, but she says the deceased continued to attend school functions, pick her up from school and she would go to his house to have dinner when her grandmother had events on.
She states her parents and brother returned to Australia in 2016 by which time she had finished university.
She states the deceased was her godfather and very generous to her. She says she was made redundant during COVID-19, between May and October 2020 and July and
October 2021. At [56] she says she turned to the deceased for support during that time. I note that the deceased died on 28 December 2020.
She says she relied on the deceased for practical and emotional support and he provided cash gifts on birthdays and Christmas. She also says he discussed helping her to enter into the property market. No dates or precise plans for such a venture are given. She refers to a bond with the deceased especially when her parents were living abroad.
Submissions in reply have been filed by Ms Hunt stating there is no opposition to the submissions of the third to tenth respondents and in relation to interest.
Mr Robison in his submissions at [4] makes passing reference to there being a definition of “dependant” in s 4 of the 1998 Act but he does not refer to the definition of “member of a family”. No submission is made that Isabella Hucksteppe falls within a member of the deceased’s family or that the deceased stood in place of a parent to Isabella. In the workers compensation scheme it is not sufficient for a person to assert dependency only by evidence of a close relationship, loss of support or a legitimate expectation of future financial assistance. There is the kinship aspect of the legislation which needs to be satisfied. None has been established by Isabella Hucksteppe.
Notwithstanding that Isabella Hucksteppe is legally represented by a solicitor and counsel, the counsel for her father Neil Hucksteppe, the seventh respondent has made submissions that she was a “dependant”. I have dealt with these submissions below, and for those reasons and the foregoing, I find Isabella Hucksteppe was not a dependant of the deceased and has no entitlement to the lump sum compensation payable on the death of the deceased.

Joshua Benjamin Hucksteppe

Joshua Hucksteppe provided a statutory declaration dated 15 June 2022 in which he states he is a friend of the deceased and is named as a beneficiary in the deceased’s Will.[12] He has also provided a statutory declaration dated 16 August 2022 in his reply. Even though this document is stated to be the statutory declaration of Joshua Hucksteppe it is substantial the same as that provided by his father Neil Hucksteppe. For instance, the paragraph which states, “My children (Nicole Hucksteppe, Isabella Hucksteppe, Josh Hucksteppe) and I were all beneficiaries in Marc Field’s Will”, is clearly not written by Joshua Hucksteppe and this is just one example.
[12] Application p 44.
His submissions do not deal with the definitions of “dependant” and “member of a family”. At [15] it is stated that when regard is had to the close relationship Joshua had with the deceased “he should be classified as a member of the worker’s family”. Quite simply the legislation does not classify Joshua Hucksteppe as a member of the worker’s family. The reasons supplied dealing with the other respondents’ submissions also apply to Joshua’s claim.
Therefore, I find Joshua Hucksteppe was not a dependant of the deceased and has no entitlement to the lump sum compensation payable on the death of the deceased.

Neil John Hucksteppe

Neil Hucksteppe provided a statutory declaration dated 15 June 2022 in which he states he is a friend of the deceased and is named as a beneficiary in the deceased’s Will.[13]
[13] Application p 46.

He provided an email to the insurer’s investigator on 16 June 2022 in which he states the following:
“We would also like to make a statement from the Hucksteppe family for inclusion in your report to the PIC.
Marc Field:
·The Hucksteppe family have been the close family to Marc Field since his arrival in Singapore 2003, where he resided at the same time as the Hucksteppe family.
·After Marc Field moved to Sydney in December 2011, Isabella Hucksteppe moved back to Sydney alone in January 2012, without the family, for her education at Moriah College. From this time, she lived with Marc for 6 months as he was her designated guardian and then he acted as co- guardian until 2016 when the Hucksteppe family returned to Sydney.
·Isabella Hucksteppe is Marc Field's god daughter. She was one of only two persons to deliver a eulogy at his funeral.
·Nicole Hucksteppe in particular was deeply involved in supporting Marc Field throughout the period of his Workers Compensation Insurance claim based on his issues with his employer. This is reﬂected in that fact that Nicole Hucksteppe was nominated as the alternative (emergency) contact on the Workers Compensation Insurance claim.
·Neil, Nicole, Isabella and Josh Hucksteppe were all beneﬁciaries in Marc Field's Will.
·Marc Field made it clear to the Hucksteppe family and his closest friends that he had become estranged from his nephew, Jay-Ashley Fieldmartin for the two years before his death. He also stated that he was estranged from his sister for many years, as reﬂected in his 2017 Will.
·Marc Field had stated to the Hucksteppe family and his closest friends that he intended to change his 2017 Will due to this estrangement with Jay-Ashley Fieldmartin.
·After Marc Field's death, the executors of his Will (Jay-Ashley Fieldmartin and Olive Plunkett) gained access to Marc Field’s laptop and found an email to his lawyer during COVID lockdown stating he wished to rewrite his Will, and requesting the process involved to do so in view of COVID lockdown restrictions. It was later discovered he did not receive a response to his email as his lawyer had passed away in 2018, therefore prior to the email being sent. Any changes to the 2017 Will were not executed due to Marc Field's death.
·We were led to understand that Marc had discussed these family and work issues with his Psychiatrist prior to his death.”
Mr Neil Hucksteppe has also provided in his reply a statutory declaration dated
16 August 2022. He states he is 66 years old and is a retired Company Director. He says he was a friend to the deceased. He refers to 2003 when the deceased resided in Singapore, as did the Hucksteppe family. He states as the deceased had no children he took an active role of “uncle and mentor” to Isabella and Josh and has known them since they were aged 8 and 3 years respectively. He says the deceased referred to the Hucksteppe family as “truly the greatest family in my life”. He says the deceased celebrated special occasions with the Hucksteppe family and family dinners and they acted as confidants to each other.
He states his daughter Isabella is the goddaughter of the deceased and refers to a What’s App post. He states in December 2011 the deceased relocated to Sydney and in
January 2012 Isabella moved to Sydney to finish her schooling and she was then aged 16. However, Isabella states that the deceased moved to Sydney in 2010 and she moved to live with him at Paddington in 2011.
Neil Hucksteppe says she lived with the deceased for six months “as he was her designated guardian and then he acted as co-guardian until 2016 when the Hucksteppe family returned to Sydney from Singapore”.
Mr Neil Hucksteppe says that the deceased considered Isabella and Josh his “adopted children” and he alleges the deceased said he wished to financially support then buying their first apartments.
Mr Neil Hucksteppe’s counsel Mr Hallion submits at [3.5] that entitlement is established in respect to the fourth to seventh respondents as the deceased was a guardian and in loco parentis and so during relevant time was a person who stood in the place of the seventh respondent. However, the fourth, fifth and sixth respondents are separately represented by solicitors and counsel and they have not made this submission. Nonetheless I will deal with the submission as it pertains to each of them.
At [4.1] of the submissions Mr Hallion relies on facts such as Neil was a friend of the deceased and a beneficiary under his Will, they had a close relationship, the deceased had no family in Singapore, the deceased took on a role “akin to an uncle” and served as a mentor to the Hucksteppe children and the deceased acknowledged them as “truly the greatest family in my life” and the deceased was “integral” to the family. None of these facts if they existed mean that any of the Hucksteppe family were members of the deceased’s family.
The definition of “member of a family” in s 4 is prescriptive and lists the persons who are members of the family. None of the Hucksteppe family fall into the persons listed.
At [4.3] Mr Hallion submits that Neil Hucksteppe establishes a very close relationship “akin” to a family member. The workers compensation scheme is a statutory scheme and the definition of “dependants” is quite clear from the text of that provision and does not permit persons who were “akin” to family.

It is asserted at [4.12] the deceased stood in loco parentis to Isabella Hucksteppe as he stood in the shoes of Neil Hucksteppe while she completed her schooling and lived with the deceased. Mr Hallion submits the law has long recognised that a child to whom another stood in loco parentis can be a dependant and he makes a footnote reference to a Queensland case. There is no need to refer to such cases as the definitions of “dependant” in s 4 of the 1998 Act includes “a person so dependent to whom the worker stands in the place of a parent or a person so dependent who stands in the place of a parent to the worker” Also in s 25(5) of the 1987 Act defines “child of the worker” as a child or step child of the worker and includes a person to whom the worker stood in place of a parent.
At [4.19] Mr Hallion does refer to this part of the s 4 definition but he makes a confusing submission. He submits:
“Assuming the appointment of the deceased as a guardian and legally in loco parentis the deceased became a member of the family for the purposes of the definition under s4…”
This part of the definition does not make the deceased a member of the Hucksteppe family. What it means is, that if the deceased stood in the place of Isabella’s parents she can be regarded as a dependant, but she still needs to meet the other requirements in the definition in s 4 for instance, “as were wholly or in part dependent for support on the worker at the time of the worker's death”.
I reject Mr Hallion’s further submission at [4.22] that “the effect is that the extended meaning does not only operate in favour to the seventh respondent’s daughter which it must, but also extends to all of the family through extending the definition to include the deceased as being treated as a member of the family”. I have set out the definition again below for ease of reference;
“‘dependants’ of a worker means such of the members of the worker's family as were wholly or in part dependent for support on the worker at the time of the worker's death, or would but for the incapacity due to the injury have been so dependent, and includes-
(a) a person so dependent to whom the worker stands in the place of a parent or a person so dependent who stands in the place of a parent to the worker, …”
Clearly the reference is to the worker’s family. “Member of a family” is separately defined and the effect of sub-paragraph (a) above is to include a person who the deceased stood in the place of a parent, such as arguably Isabella. So it cannot be read as Mr Hallion suggests. The deceased did not stand in the place of a parent to Neil, Nicole, or Joshua Hucksteppe. Nor did the Hucksteppe family members stand in the place of a parent to the deceased.
I reject the submission at [4.28] that Neil Hucksteppe is a dependant of the deceased. I find he was not a member of the worker’s family as he does not come within the definition of “member of a family”. I find he is not a dependant of the deceased and has no entitlement to the lump sum compensation payable on the death of the deceased.
As to whether Isabella was in fact a dependant of the deceased it is asserted that Isabella lived with the deceased in Sydney and he was her “designated guardian”. There is no evidence of a formal guardianship however, I consider that is not required in the workers compensation legislation. I need to consider if the deceased stood in the place of a parent. This is a question of fact. She continued to have parents, albeit in Singapore. There is no evidence about what financial provision they made for Isabella’s schooling and care. Who paid the school fees?, who paid the utilities in the grandmother’s house?, who made the decision about which school she was to attend? These are all potentially relevant facts. However, I do accept that in the six months Isabella resided with the deceased he stood in the place of her parents for day to day decisions and her care such as with meals, supervision and, as she says, taking her to school and attending school functions.
The first respondent has submitted that however, she was not such a dependant at the time of the deceased’s death because the evidence is in 2011 her grandmother arrived back home and Isabella lived with her and in 2016 her parents arrived in Australia, at which time Isabella was 22 and had completed university.
The deceased died on 28 December 2020. I find as a matter of fact that the deceased did not stand in the place of a parent to Isabella Hucksteppe at the time of his death. She had two parents who resided in Australia from 2016. The wording of the legislation is “stand in the place of a parent”. There is no evidence to find from 2016 that the deceased stood in the place of a parent to Isabella. I have found above that Isabella Hucksteppe was not a dependant of the deceased at the time of his death and has no entitlement to the lump sum compensation payable on the death of the deceased.

Sam Heine Hensan

Sam Heine Hensan provided a statement dated 16 August 2022 in which he states he is married to Robert Lengyel. He says the deceased was a very close friend to him. He says he and his husband and the deceased were part of the tight-knit gay community in Surry Hills and he considered the deceased as part of he and his husband’s close family, and they supported each other as families do. He provides details of his wedding stating the deceased was their best man, and the deceased acted as a wedding planner and gifted the wedding cake. He also relates that he and his husband stayed rent free in the deceased’s house when they were doing renovations on their own house when the deceased was overseas. He also relates that the deceased spent Christmas Day 2020 with them and this was three days before he died. He says he expected their close friendship to continue to very old age.
Submissions by Mr Dewashish Adhikary, counsel, dated 18 October 2022 have been filed on his behalf. He submits that Mr Hensan was the deceased’s closest friend. He refers to the definition of dependants in s 4 of the 1998 Act and to the reference to the word “family” in that definition. He submits that Mr Hensan satisfies the meaning of “family.” It is submitted that the solicitor for the first respondent has taken an unduly narrow approach to construing the word “family”. He adds that the reference in s 4 to “member of a family” does not alter this proposition. He does not explain this submission further.
It is submitted that the first respondent’s position ignores the fact that the worker and the eighth respondent considered each other as being family, that is members of each other’s families. At [31] of the submissions it is submitted that there is no reason for the term family to be restricted. As quoted above “member of a family” has a specific meaning in the legislation and Mr Hensan is not one of the persons listed in that definition.
It is argued that the Will of the deceased by leaving money to the eighth respondent demonstrates a familial relationship and did not restrict his family to blood relationship. However, a person can leave a bequest to anyone in a Will but under the workers compensation legislation there is a restriction enacted by Parliament, that is to receive compensation under s 25 of the 1987 Act you need to be a “dependant” which needs to be read with the definition s 4 of the 1998 referring to “such members of the worker’s family…” and then turn to the definition of “member of a family”. The Parliament has made provision for relationships that are not blood or marital relationships such as where the worker has stood in place of a parent, and in a situation of adoption and defacto relationship. But Mr Hensan does not come within those provisions.
Mr Adhikary refers to the case of SZTAL v Minister for Immigration and Border Protection[14] which dealt with statutory construction in an immigration matter before the High Court and the word “intentionally”. The passage cited is from Gageler J, who incidentally was in the minority in that matter. Gageler J at [37]- [38] stated:
“The task of statutory construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility ‘if, and in so far as, it assists in fixing the meaning of the statutory text’.
The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from ‘a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural’, in which case the choice ‘turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies’.” (citation omitted)
[14] [2017] HCA 34, SZTAL.
However, this passage does not permit one to disregard the text of s 25(1)(a) and the definitions of “dependant” and “member of a family”. I find there is no ambiguity in these sections of the legislation and the meaning is clear from the text. In this matter;
“member of a family” is specifically defined, the phrase “means spouse (including wife or husband), father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother or half-sister.”
Mr Adhikary argues that when the words are read contextually there is no reason to exclude persons who the worker considered as being family. He adds to include such persons does not “substantially depart from the literal text”. I do not accept this submission because the literal text of this definition prescribes the members of the family who can be dependants. It uses the word “means” which is prescriptive.
At [36] of his submissions he argues that the legislation does not suggest that a person cannot consider someone to be a member of his family notwithstanding there is no blood or marital relationship. This type of argument cannot be accepted when the 1998 Act prescribes the members of the family who can be regarded as dependants. Mr Hensan does not come with any of the types of relationships in the definition. Nor has he asserted he was a defacto of the deceased.
Therefore, I find he was not a dependant of the deceased and has no entitlement to the lump sum compensation payable on the death of the deceased.

Robert Lengyel

Mr Lengyel is the husband of Mr Hensan. Submissions have been filed on his behalf by Boris Necovski, counsel, dated 20 October 2022. He refers to the definition in s 4 of the 1998 Act of “members of a family” as including a marriage or kinship-type relationship. He then adds at [3.3] there is tension in the law as to who may be considered a dependant and he refers to his submission at [2.3] that:
“Dependency at law can encompass “any” persons. In Fede v Dell'Arte, at [57], Hallen J stated: “The words are wide enough to cover any person who would naturally rely on, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.”
Firstly, I note that Fede v Dell’Arte[15] was a case under the Family Provision Act 1982 and the legislation is quite different to the workers compensation legislation. Secondly, the passage above has not been quoted in context as the Judge was considering the phrase “dependent upon”. The passage states:
“In all the circumstances, I am satisfied that the Plaintiff was dependent, at least partly, upon the deceased. Based upon the authorities, a person “dependent upon” a deceased person should not be regarded as being limited only to a person who was actually in receipt of financial assistance from the deceased. The words are wide enough to cover any person who would naturally rely on, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.”
[15] [2010] NSWSC 113, Fede.
Justice Hallen was considering whether the plaintiff was an “eligible person”. The plaintiff was a granddaughter of the deceased. Counsel has used this passage as authority for the proposition that dependency at law can encompass “any” persons. This is not what the passage states. In any event, the workers compensation legislation specifically defines “dependant” and “member of a family”. Counsel submits that s 4 of the 1998 Act should not be read as exhaustive or limiting the scope of who may be considered as a member of a family. However, as a matter of statutory construction that is precisely what the definition does. The s 4 definition of “dependants” also states it includes a divorced spouse, defacto and a person who stood in place of a parent or to whom the worker stood in place of a parent. Mr Lengyel does not come within any of these categories.
Counsel refers to the Succession Act 2006 and makes the curious submission that that Act does not define a member of a family to enable the law to keep up as best it can with the evolution of what constitutes a family. However, as stated the 1998 Act does in fact define a “member of a family”. This cannot be ignored. Counsel glosses over the fact the workers compensation scheme is a statutory scheme and if there are societal changes it is a matter for Parliament not the Commission to extend the legislation.
Therefore, I find Robert Lengyel was not a dependant of the deceased and has no entitlement to the lump sum compensation payable on the death of the deceased.

Matilda Moore

Matilda Moore is currently six years old. Her mother is Sharon Moore. Sharon Moore has provided a statement dated 30 August 2022. She states she makes no claim of dependency on her own behalf. However, she makes a claim on behalf of Matilda, who is the goddaughter of the deceased. At [17] of her statement she lists payments that were made into a bank account for Matilda from 1 May 2018 to 4 January 2021. The payments from
1 April 2020 had dropped to one English pound per month.
Ms Compton has provided submissions mainly focused on the issue of dependent for support aspect of s 25(1)(a) of the 1987 Act. At [17] of her submissions she states “The meaning of ‘Family’ partially in circumstances of changing definitions of familiar relationships suggests that Ms Matilda Moore was consider [sic] to be part of the extended family of the deceased. Noting that she was provided in the Will a modest Legacy”.
What someone is left in a Will is not determinative as to whether someone falls into the provisions in the workers compensation legislation to be a “dependant”. Ms Moore does not come within the definition of “member of a family” and it has not been submitted that the deceased stood in place of a parent under s 25(5) of the 1987 Act or sub-paragraph (a) of the definition if dependant in s 4 of the 1998 Act. No doubt this submission was not made because she has her mother, Sharon Moore, with whom she resides in the United Kingdom.
Therefore, I find Matilda Moore was not a dependant of the deceased and has no entitlement to the lump sum compensation payable on the death of the deceased.

Other persons

Mr Max Sheridan is aged 22. He was a nephew of the deceased. He resides in the United Kingdom. He did not see the deceased in the year prior to his death. In a statutory declaration dated 1 July 2022 he says he does not believe he qualifies as a dependent and he does not wish to make a claim.[16]
[16] Application p 63.
Ms Sarah Anne Field the deceased’s sister has provided a statutory declaration dated
[17] Application p 59.
1 July 2022 stating she does not believe she qualifies as a dependant and she does not wish to make a claim. She says she paid the funeral expenses but has been reimbursed by the estate.[17] She is Jay-Ashley Fieldmartin’s mother. Ms Field also has supplied an email dated 21 August 2022 providing her views about the dependency issue.
Mr Finbar Martin Max Jay Sheridan is a nephew of the deceased and has provided a statutory declaration dated 1 July 2022 stating he does not believe he qualifies as a dependant and he does not wish to make a claim.[18]
[18] Application p 61.

SUMMARY

Pursuant to s 25 of the 1987 Act and s 4 of the 1998 Act I find the third to tenth respondents are not entitled to compensation as they are not dependants of the deceased worker.
Pursuant to s 25(1)(a) and s 32 of the 1987 Act the deceased worker has left no dependants, accordingly the compensation payable of $834,200 is to be paid by the applicant to the legal personal representatives of deceased, Jay-Ashley Fieldmartin and Kathleen Plunkett.

[2023] NSWPIC 114

20 March 2023