G & D Brown Reola Partners v Dutoit
[2008] NSWWCCPD 1
•2 January 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:G & D Brown/Reola Partners v Dutoit & ors [2008] NSWWCCPD 1
APPELLANT: G & D Brown/Reola Partners
FIRST RESPONDENT: Cheryl Dutoit
SECOND RESPONDENT: Laura Morrison
THIRD RESPONDENT: Amanda Morrison
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER: WCC2920-07
DATE OF ARBITRATOR’S DECISION: 27 July 2007
DATE OF APPEAL DECISION: 2 January 2008
SUBJECT MATTER OF DECISION: Section 25 and 26 of the Workers Compensation Act 1987; wholly or partially dependent on deceased worker; application of the law; inadequate reasons for decision
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:On the papers
REPRESENTATION: Appellant: Moray & Agnew
FirstRespondent: Higgins Solicitors
Second Respondent: Carroll & O’Dea Solicitors
Third Respondent: Firths – The Compensation Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 27 July 2007 is revoked.
The matter is remitted to another Arbitrator for determination afresh, in accordance with these Reasons.
No order is made as to the costs of this appeal.
BACKGROUND
On 24 August 2007 G & D Brown/Reola Partners (‘Reola Partners’), the Appellant Employer, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 27 July 2007. QBE Workers Compensation (NSW) Ltd (‘the Insurer’) was Reola Partners’ Insurer.
Mr Anthony Paul Morrison (‘the deceased worker’) died in the course of his employment with Reola Partners, on 4 May 2006 as a result of an explosion at the work site. Ms Dutoit, the First Respondent had met the deceased worker in or about 1997 and in approximately 2002 commenced a de-facto relationship with him. Following the worker’s death Ms Dutoit lodged a claim for death benefits with the Insurer pursuant to section 25 of the Workers Compensation Act 1987 (‘the 1987 Act’).
The Second Respondent, Laura Morrison, and Third Respondent, Amanda Morrison, the deceased worker’s daughters by a previous relationship with Ms Kerrie Miller, also made a claim for death benefits on the basis that they were dependants of the deceased worker. As settlement between the claimants appeared unlikely, and apportionment between the alleged dependants had to be ascertained pursuant to section 29 of the 1987 Act, Ms Dutoit proceeded to lodge an ‘Application to Resolve a Dispute’ with the Commission on 24 April 2007 seeking compensation pursuant to sections 25 and 26 of the 1987 Act. In her Application she named herself, Nicole Frances Mackey, Laura Morrison and Amanda Morrison as dependants of the deceased worker.
On 8 May 2007, Reola Partners filed a ‘Reply to Application to Resolve a Dispute’ in the Commission.
On 17 May 2007, Laura Morrison and Amanda Morrison filed a ‘Reply to Application to Resolve a Dispute’ in the Commission. Not all documents are date stamped, but all late documents were accompanied by an ‘Application to Admit Late Documents’, and were accepted in and by the Commission. Other documents were filed, including a statutory declaration dated 28 May 2007, by Kerrie Miller, the Mother of Laura and Amanda Morrison.
No documents were received in the Commission, apart from the original Application, for or on behalf of Nicole Mackey.
In due course, the claim was listed for a conciliation/arbitration hearing before a Commission Arbitrator on 10 July 2007, and on 27 July 2007 the Arbitrator issued a ‘Certificate of Determination’ in terms set out below at paragraph 19.
A reading of the Arbitrator’s ‘Statement of Reasons for Decision’ (‘Reasons’) reveals that he considered and dealt with the interests of Ms Dutoit, Laura Morrison and Amanda Morrison, as dependants of the deceased worker.
Laura and Amanda Morrison are referred to hereinafter as ‘the Morrisons’, unless the context otherwise dictates.
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). Section 352(4) states that an appeal can only be made within 28 days after the making of the decision appealed against. Reola Partners appeal was lodged on 24 August 2007, in compliance with section 352(4) of the 1998 Act.
For the Commission to grant leave to appeal, the appeal must also meet the threshold imposed by section 352(2), which provides:
“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.”
Reola Partners submit that the amount of compensation in issue on appeal is in excess of $5,000 “being the quantification of the entitlement of the Second and Third Respondents, which the Arbitrator allowed at a total exceeding $200,000. Similarly, the amount at issue is at least 20% of the amount awarded in the decision being appealed against.”
Both sections 352(2)(a) and (b) of the 1998 Act are satisfied.
Leave to appeal is granted.
PRELIMINARY MATTER
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.”
Reola Partners submit, “If the Commission is not minded to grant relief sought on the papers, the appellant seeks a hearing in view of the significant issues and amounts of compensation involved.” However, the decision as to whether the matter should be determined on the papers is a preliminary consideration that necessarily precedes the exercise of the Commission’s further functions, including the determination of the appeal.
Ms Dutoit submits that the appeal may be decided solely on the papers while the Morrisons submit that the appeal may be decided solely on the basis of the written application and notices of opposition lodged.
Having regard to Practice Directions Numbers 1 and 6, the nature and substance of the evidence and submissions before the Arbitrator and now before me (including the transcript of the arbitral proceedings), the submissions of the parties on appeal, and other relevant documents that are before me, 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 27 July 2007, records the Arbitrator’s determination as follows:
“The determination of the Commission in this matter is as follows:
1.That the first Respondent pay lump sum total $313,450 to the Applicant and the second and third Respondents pursuant to s25 (1)(a) of the 1987 Act apportioned as follows:
a. Applicant Cheryl Dutoit $104,483.33;
b. Second Respondent Laura Morrison $104,483.33;
c. Third Respondent Amanda Morrison $104,483.33.
2.That the first Respondent pay to the second Respondent, Laura Morrison and the third Respondent, Amanda Morrison, weekly payments of compensation from 26 April 2007 to date pursuant to s25 (1)(b) of the 1987 Act at the applicable rates as adjusted from time to time; such payments to continue in accordance with the Act.
3.That the first Respondent pay interest at the rate of 3% per annum on the lump sums in order 1 from 26 April 2007.
4.That the first Respondent pay Applicant’s, the second and third Respondent’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute before the Arbitrator, as set out in his Reasons, were as follows:
1.Were the Second and Third Respondents wholly or partially dependent on the deceased worker at the time of death?
2.If wholly dependent, what is the appropriate sum apportionment between the Applicant and the Second and Third Respondents?
3.If partially dependent what is the appropriate amount to which the Second and Third Respondents are entitled in the circumstances of the case?
4.What is the amount to which the Applicant is entitled as partially dependent on the deceased worker?
5.Should interest be paid on any lump sums awarded?
The issues in dispute in the appeal are set out as grounds of appeal in Reola Partners’ submissions, and amount to whether the Arbitrator erred:
1.in finding the second and third respondents to be wholly dependent for support pursuant to section 25(1) of the 1987 Act;
2.in his application of the law to the facts of the case;
3.in failing to give adequate reasons for his decision;
4.in failing to certify the matter as ‘complex’ for costs purposes, and
5.in failing to deal with the position of the deceased worker’s daughter, Nicole Mackey.
In her submissions on appeal, Ms Dutoit confirms the history as summarised by Reola Partners, in their submissions on appeal, at their “paragraph 3 under the heading of Background”. That paragraph states,
“There was in reality no substantive dispute between the Applicant and the First Respondent that the reasonable measure of her entitlement under s.26 was $125,000 and this was reflected in the submissions made on that point by those parties.”
Ms Dutoit “also confirms her claim for interest at 3% from 26 April 2007.
Ms Dutoit states that she “supports the Grounds of Appeal 1 to 4 for the reasons submitted by the Appellant.”
However, she opposes ground of appeal number 5, stating that “Nicole McKey [sic] was not a party to the proceedings and there was no evidence to make any adverse finding on dependency. If the Commission upholds Grounds of Appeal 1 to 4 then Ground 5 may unnecessarily preclude Nicole McKey [sic] from making a potential claim for partial dependency.”
The Morrisons’ submissions are dealt with below.
APPEAL TO A PRESIDENTIAL MEMBER
A Presidential member has a specific and limited role in the review of a decision of an Arbitrator. A review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616).
In this case, Reola Partners must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.
SUBMISSIONS
Background
Reola Partners set out a ‘background’ to the appeal (at paragraphs 1 to 5) in which they claim that there was “no issue” that Ms Dutoit was partially dependent on the deceased worker for support, and therefore the question for determination by the Arbitrator was the quantum of the lump sums benefits payable to her pursuant to section 26 of the 1998 Act. As stated above, it was also submitted that “there was in reality no substantive dispute” between Ms Dutoit and Reola Partners “that the reasonable measure of her entitlement under s.26 was $125,000 and this was reflected in the submissions made on that point by those parties.”
It was noted that there was no agreement as to interest on the lump sums, but for the purposes of this appeal no issue has been raised as to the allowance of interest at 3% per annum from 26 April 2007.
Reola Partners also state that there was “no issue” before the Arbitrator that irrespective of whether the Morrisons were partially or wholly dependant on the deceased worker, they “were entitled to a weekly payment pursuant to s.25 (1)(b) of the 1987 Act provided they otherwise met the criteria under s.25 (2).”
Both Laura Morrison and Amanda Morrison, filed a ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ (‘Opposition’) on 8 October 2007 and attached identical submissions in which they accept the background outlined by Reola Partners “as properly reflecting the background of the matter”.
Dependency
Reola Partners submit:
“6.The substantive issue agitated on this appeal is the correctness of the determination by the Arbitrator that the Second and Third Respondents were wholly dependent for support on the deceased worker and the consequent lump sum award of compensation made in their favour pursuant to s.25(1)(a) of the Act. Subsidiary to that issue is the quantum of the lump sum which should be awarded under s.26 of the Act.
7.The First Respondent contended at first instance and maintains on this appeal that the Second and Third Respondents were partly dependent for support on the deceased worker and that there ought have been only a modest lump sum award in their favour pursuant to s.26 of the Act.”
The Morrisons state that they make no submissions as to these submissions of Reola Partners.
Reola Partners state that the following facts are relevant in relation to this ground of appeal:
“(a) the evidence of the Second Respondent, Laura Morrison, inter alia, was that:
i.The deceased worker provided Christmas and birthday presents for a few years after he separated from her mother in 1993;
ii.It appears that she had no further contact with the deceased worker thereafter and as such at the time of the deceased’s death there had been no contact between he and the Second Respondent for a period probably exceeding 10 years;
iii.The Second Respondent had a wish to re-establish contact with her father at some indeterminate time in the future;
iv.The Second Respondent had a belief that if her father came back into her life he would provide cash, gifts and tuition expenses from time to time.
(b) the evidence of the Third Respondent, Amanda Morrison, inter alia, was that:
i. She has no recollection of the deceased worker;
ii.she would have liked to get to know her father but this was unlikely to happen while she resided with her mother;
iii.she was hopeful that upon establishing a relationship with the deceased he would have bought small gifts and helped with shortfalls in bills.
(c ) the evidence of Kerry Miller (the mother of the Second and Third Respondents) inter alia was that:
i. She separated from the deceased worker in 1992;
ii.The deceased thereafter became liable to make child support payments, which she expected to continue until the children reached 18;
iii.The deceased at the date of his death had $5,035.00 outstanding in unpaid child support and any money received from him was applied to the children;
iv. She believed child support fluctuated with income;
v.There was no contact with the deceased worker from about 12 months after the separation in 1992;
vi.The deceased had indicated that he was not going to support the children;
vii.She expected after the children had left home that they would re-establish contact with their father;
viii. She had no taxable income;
ix.She believed that if contact had been re-established with the children, the deceased would have contributed in small ways to their upkeep as and when needed.”
As to this, the Morrisons submit, “As to paragraphs 8(a) and (b), in the main, the Second and Third Respondents accept the Appellant’s submissions.” As to paragraph 8(c), they contend that there was “both a moral and legal obligation” for the deceased to support them, and furthermore, any animosity that existed as between the deceased and the Morrisons’ Mother should not properly be regarded as affecting the moral and legal obligations, and the likelihood of reconciliation once they had finished high school.
It is submitted by Reola Partners that Ms Dutoit’s solicitors had made submissions at first instance, that payments of child support by the deceased worker were at the level of $900 per annum, for 2004, 2005 and 2006 years and this appears to have been accepted by the Arbitrator. It was also submitted that from the evidence, the deceased was significantly in arrears in respect of child support.
However, the Morrisons submit that the level of child support was referrable to the deceased’s declared income and as such is irrelevant. “The dependency for the purposes of the Workers Compensation Act is not means tested.”
Reola Partners submit that the Arbitrator was provided with and addressed upon answers to the particulars provided by the solicitors for the Morrisons, being correspondence from Carroll & O’Dea, dated 22 May 2007 and Firths, dated 8 December 2006. “That correspondence was not referred to by the Arbitrator in his decision.” It is submitted that both letters confirm at the outset that the claim by the Morrisons was made “on the basis of partial dependency only.” It is submitted that the assertion that they were wholly dependent was made for the first time at the conciliation/ arbitration hearing.
The Morrisons submit, “the reply raised dependency”.
They submit that notwithstanding the correspondence referred to, the Arbitrator properly exercised his discretion to permit them to pursue their claim for total dependency. They refer to the decision in House v King (1936) 55 CLR 499 (‘House’) in supporting their statement that “no prejudice was demonstrated on behalf of the Appellant and no adjournment was sought”. They submit that the Arbitrator permitted them to pursue a claim for total dependency and in allowing them to press that claim, there was a proper exercise of discretion. In House, the Court stated that it is not enough for the appellate “court” to consider that they would have taken a different course. It must appear that some error has been made in exercising the discretion. The Morrisons submit that no such error has been demonstrated.
Inadequate reasons
Reola Partners submit that the Arbitrator’s reasons for coming to the decision that both of the Morrisons were wholly dependent for support on the deceased worker were inadequate. They refer to paragraph 16 of the Arbitrator’s Reasons where he states:
“…the payment of child support by the deceased together with the future expectations of the two daughters for more interaction with and support from their father seems to me to be sufficient to establish that the sisters were wholly dependent on their father at the time of death”.
Reola Partners submit that this statement “firstly does not address whether the Second and Third Respondents were wholly dependant ‘for support’ on the deceased and in any event says no more than that on the facts advanced by the Second and Third Respondents, they were wholly dependent. Specifically there is no intellectual analysis of why that is so.” They assert, “It is really a statement of conclusion rather than a statement of reasons”. It is submitted that the paucity of the Arbitrator’s explanation infringes the well established obligation to give reasons described in cases such as Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 (‘Soulemezis’).
The Morrisons submit that the Arbitrator “referred to the salient facts and the arguments put by the Appellant and demonstrated a clear understanding of the law”. They also refer to Soulemezis where at 273 Mahoney JA states “…it will ordinarily be sufficient if …the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he acted”.
Further, the Morrisons state that “facts” advanced by them were in the main not in issue and that Reola Partner’s submissions on this ground of appeal overlooks paragraphs 9 to 15 of the Arbitrator’s Reasons where the Arbitrator succinctly referred to the facts, the law and the submissions. They agree with Reola Partners that the question of dependency is one of fact, as stated by Barwick CJ in Aafjes v Kearney (1994) 180 CLR 199 (‘Aafjes’).
Reliance on support
Reola Partners submit that contrary to the Arbitrator’s conclusions the Morrisons do not fall within the parameters of being wholly dependent on the deceased worker for support. Reference is made to Aafjes, submitting that in this case, Barwick CJ made it clear that the question of dependency is one of fact. They submit that the case ultimately turned upon whether there was sufficient evidence before the first instance court to come to the conclusion that it did on that issue. Reola Partners cite Gibbs J in Aafjes where he states:
“It is not the mere fact of receipt of support but the dependence or reliance upon another to provide it that matters. The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date; ‘past events and future probabilities’ have to be considered.”
Reola Partners also refer to the decision in So v So [2004] NSWCA 67 (‘So’) in which Santow JA confirmed the relevance of ‘reliance’ upon support where His Honour said:
“In any event, as it is clear from cases following Aafjes v Kearney the focus is not upon the relevant amounts each parent actually paid or provided. Rather it is upon the legal obligation of the deceased parent to have supported the child and the reliance placed by that child upon fulfilment of that parental obligation.”
Reola Partners submit that in practically all cases a parent has an obligation, enforceable by law, to provide support to his or her child and that, were the test [dependency] simply the somewhat esoteric obligation to support, “then large parts of Part 3 Division 1 of the Act would be otiose and all children would have an automatic entitlement to maximum lump sum compensation”. It is submitted that the test is a far more subtle one and reference is made to the decision of Giles JA in Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629 (‘Walsh’) where he states at [51]:
“Dependence does not look only to the fact of receipt of support but also to reliance on another to provide it. Total dependence is not incompatible with the fact of receipt of support from someone else.”
The Morrisons submit that this general statement does not apply in all cases, where for instance a child is engaged in full-time employment or where there is a total and absolute abandonment of any right “(as was the case discussed by Lord Haldane in Potts v Niddrie and Benhar Coal Co Ltd (1913) AC 531, at pp. 536-538, referred to by Barwick CJ IN Aafjes v Kearney).” They go on to say, “There is nothing esoteric about the legal and moral obligations and the fulfilment thereof in this particular [the instant] case.”
Reola Partners argue that the evidence clearly shows that the deceased worker’s liability for child support was modest ($1,000 approximately per year - see para 16 of the Arbitrator’s Reasons) and that the child support payments were significantly in arrears (approximately $5,000 - evidence of Ms Miller dated 28 May 2007). Consequently, it was evident that no real support was being provided by the deceased worker and that this situation had prevailed over many years since the separation. Reola Partners further submit that neither the Second or Third Respondents were able to provide any direct evidence of actual support provided by the deceased worker and Ms Miller gave no specific details as to the level of the support provided by the deceased worker, just that “he had become liable for payments through the Child Support Agency and that there were substantial arrears”. Furthermore it is noted that at paragraph 8 of Ms Miller’s statement she makes only a general comment as to how support was applied and does not give details as to the extent of actual support provided.
Reola Partners go on to say at paragraphs 29 and 30 of their submissions on appeal:
“At the time of the deceased’s death the Second Respondent was about to turn 18, and on that basis, according to paragraph 7 of Ms Miller’s statement, any child support obligations would have ceased and the Third Respondent has just turned 16, at the time of the deceased’s death.
The circumstances therefore as they existed at the time of the worker’s death was that he was providing no or little support and that in real terms it is contended that there had been no reliance by the Second or Third Respondent on him to provide it.”
The Morrisons embrace Reola Partner’s submission that the question of dependency is one of fact and also rely on the decision in Aafjes: (Barwick CJ paras 7 to 14; Mason J paras 4 to 8). They further submit that there will always be a degree of reliance, which may often depend on matters as capricious as the deceased’s financial position or a parental dispute. They argue that the Arbitrator properly found on the facts of the case that there was a legal obligation and that there was reliance, this issue being addressed at paragraph 16 of his Reasons. It is submitted that the Arbitrator demonstrated no legal, factual or discretionary error.
The Arbitrator states at paragraph 16 of his Reasons:
“However, on the authorities discussed above, the payment of child support by the deceased together with the future expectations of the two daughters for more interaction with their father seems to me to be sufficient to establish that the sisters were wholly dependent on their father at the time of death. The child support payments from their father were paid to their mother and applied to them, together with the support provided by their mother. Even if the amounts were at times only approximately $1,000 per year this is not insignificant. It is also accepted principle as noted in So that a child can be wholly dependent on both parents at the same time, with contributions from each of them.”
Future expectations
As previously stated, Reola Partners submit that at the time of the deceased worker’s death the Second Respondent was about to turn 18 and on that basis, according to Ms Miller’s statement (at para 7), any child support obligations would have ceased. It is submitted that the circumstances as they existed at the time of the worker’s death were that he was providing little or no support and that in real terms there had been no reliance by the Morrisons on the deceased worker to provide support.
Reola Partners submit that although the Morrisons hoped to re-establish relations with the deceased worker in the future, their ‘hopes’ as to whether he would provide them with financial assistance were speculative, and did not amount to substantial support. Their hopes were far from an expectation that in the future they would be wholly dependent upon him for support. Furthermore, it is submitted that the Arbitrator in his Reasons (at para 17) “devoted but 5 lines to future expectations and simply said it would have been ‘much more likely that they could build the relationship with their father after completing school’.” It is submitted that this does not amount to a statement of reasons but simply a statement of conclusion or assumption, and ignores the fact that neither Ms Miller nor the Morrisons had heard anything from the deceased worker for many years and that he was not meeting his child support obligations.
In addition, it is noted the deceased worker had told Ms Miller, apparently when their relationship ceased, that “there would be no support coming to me to support our daughters and that I was on my own (para 11 Ms Miller’s statement).”
It is also submitted that the Arbitrator does not explain why he preferred the assumption of Ms Miller that the deceased worker would have met his obligations to the Morrisons were she not “in the picture”.
In reply the Morrisons submit that the significant matter in this case is that the legal obligation existed at the time of death. They argue that the Arbitrator properly rejected the submission that the future expectations of the daughters were “only speculative” and refer to para 17 of the Arbitrator’s Reasons where he states:
“The circumstances of ill feeling between their mother and the deceased had the effect of delaying the potential relationship with their father, but after completing high school, it would have been, as they state, much more likely that they could build the relationship with their father”.
It is submitted that there was no evidence to suggest otherwise and “nor could there be any cross-examination to suggest otherwise”. They add, “The submission at paragraph 33 [of Reola Partners’ submissions on appeal] ignores the anachronism.”
Nicole Mackey
Reola Partners submit that the Arbitrator completely ignored the evidence, which was given by Nicole Frances Mackey, the so-called “Fourth Respondent”, who is the deceased worker’s other daughter from another relationship, other than to refer to the fact that she had given unsworn evidence. It is submitted that her evidence as to what transpired between her and the deceased in her adult years was relevant but did not advance the case for the Morrisons. Furthermore, Reola Partner’s request the Commission to make orders acknowledging that Ms Mackey did not press any claim for compensation.
The Morrisons argue that Reola Partners have not put forward the aspect of Ms Mackey’s evidence, which in any way, was material.
Ms Dutoit submits that Ms Mackey was not a party to the proceedings and there was no evidence upon which to make any adverse finding on dependency. Furthermore she submits, “If the Commission upholds Grounds of Appeal 1 to 4 then Ground 5 may unnecessarily preclude Ms McKey [sic] from making a potential claim for partial dependency.”
The Arbitrator refers to the unsworn evidence of Ms Mackey at paragraph 7 of his Reasons where he states:
“To the extent that it was logically probative and relevant to the facts and issues in dispute the following oral evidence was taken into account in making this determination:
· Unsworn evidence of Nicole Francis MacKey [sic].”
A perusal of the Transcript of proceedings refers to Ms Mackey as the “Second Respondent” in the arbitral proceedings which took place on 10 July 2007 (at page 20):
“MR YOUNG [Counsel for the Applicant]: … Ms Mackay [sic], the second respondent, who is self-represented, has to catch a plane back to Brisbane and would like to be excused early. There’s one aspect raised by Mr Baker in his submissions about there being a precedent, being Ms Mackay herself, where there was a failed relationship that the deceased was involved with and Ms Mackay, being the daughter of that relationship, and yet she managed to maintain a relationship with the deceased, and I think the submission was to the effect, there was a real prospect for the third and fourth respondents of re-establishing a relationship and, therefore, realising the claim for dependency put at a total basis by those two respondents.
I have noticed that Ms Mackay, at least visibly, was not in agreement with what was submitted, and I’ve since confirmed with her outside that she would like to address on that discrete issue.
ARBITRATOR: Is anyone unhappy with that?
MR BAKER [Counsel for Third Respondent]: Well, the only objection I have to it that this would represent evidence presumably that you would make a decision on the basis of the evidence that Mr Catsanos correctly pointed out, and he made comment about the evidence. I don’t think that if the second respondent is to go into evidence now we would able to [inaudible] it.
ARBITRATOR: No, it won’t be evidence. It will be in the nature of a submission, and I can perhaps remind her about the distinction between giving evidence and making submission on evidence that’s already in.
MR BAKER: Well, you can, but I’d just like to take objection to [inaudible], I suppose.
ARBITRATOR: Yes. And I’ll disregard any new material that’s put in. It’s just a comment on the evidence which is already here, which is essentially that paragraph 13 of the statement of Ms Miller, isn’t it? Yeah. All right. Well as long as – are you happy to –
MR CALLAWAY: Mr Arbitrator, a more pragmatic approach and quicker, if I might suggest, might be if you just – and I only make the suggestion – to hear what has to be said and then treat it appropriately as to what is evidence and what might be regarded as submissions.
ARBITRATOR: Well, that’s right. I’ll make that distinction.
…
ARBITRATOR: …Now Ms Morrison [sic] do you want to make some brief submissions about some earlier submissions that related to you. I’m just noting again that you are unrepresented, but if you just – I don’t expect you to understand the difference between making submissions and giving evidence, but I’ll sift one from the other, as suggested by Mr Callaway, when I’m considering all the material. It’s just about generally you’re making a submission; you’re not giving evidence. You’re talking about what’s in the statement, in Ms Miller’s statement, paragraph 13. If you restrict yourself to that, you’re probably on safer ground.
MS MACKAY: Right.
…
MS MACKAY: Okay. I just wanted to say basically it says that I had no, that due to my parent’s breakdown in the relationship that I had no contact with my father, and I would like to say that that is not correct and that over the years I did have an ongoing relationship with my father, that he, indeed, wrote me letters, I wrote him letters. There was a time when he did not have any contact, and that was in the initial years, and that – however, I received letters. There was a time when I went – when he first went to White Cliffs that I did not have any contact and that was in the initial year, and that – however, I received letters, and that it was an ongoing relationship. He did ring home. My mother and father did speak, and I had ongoing contact with his family of a consistent nature, and still do, and that over the years I didn’t receive any monetary value as such from him while my parents were split and while I was at school or when I went to the university – I actually completed university studying [inaudible] through Austudy – and I frankly just wanted that matter rectified, but he –
ARBITRATOR: Thanks for that.
MS MORRISON: … he didn’t leave them – he didn’t – like there was a separation between mum and dad. That was the approach that they both [inaudible].
ARBITRATOR: Thank you for that. I’m not really sure – I’ll just make the comment generally that I don’t know that – it’s not actually a critical point anyway, that that, it’s not – it’s mainly on the facts of the individual cases of dependency that –
MS MORRISON: That’s my account.”
The transcript shows the last two comments (other than the Arbitrator’s comment) as having been made by “Ms Morrison”. It is likely that these statements were in fact, made by Ms Mackey, in concluding her evidence. In any event, little if anything turns on it.
Reola Partners state, “With respect, no-one knows what the Arbitrator made of that evidence.” Towards the conclusion of their submissions on appeal, they state at paragraphs 52 – 53:
“52.One point not strictly necessary for the appellant to raise on this appeal is that the Arbitrator failed entirely to deal with the position of Nicole McKey [sic], who was a Respondent.
53.There is no issue that Ms McKey was not seeking compensation however the arbitrator ought have simply noted something to that effect and for the sake of completeness. Given that the matter is on appeal, in any event that should be attended to.”
Although the Arbitrator stated that Ms Mackey would not be giving evidence but would be making submissions, it is clear in fact, that she did give evidence, specifically to clarify evidence that had been previously given, and to provide explanation of her own relationship with the deceased worker, her father. Indeed, in his Reasons at paragraph 7, the Arbitrator describes her statements as “evidence”.
Ms Mackey is described in the transcript of proceedings before the Arbitrator as the Second Respondent, but described in Reola Partner’s submissions on appeal as the Fourth Respondent (at paragraph 35). Ms Dutoit submits that she was not a party to the proceedings before the Arbitrator. An inspection of the Commission file indicates that she is designated in Ms Dutoit’s Application as a dependant, but notwithstanding that she was described as a respondent, it is clear that she is not a respondent in these proceedings.
Ms Mackey is named as Nicole Frances Mackey in the ‘Application to Resolve a Dispute’. The actual spelling of her surname varies from “McKey” to “Mackey” to “Mackay” to “MacKay”, depending upon which document on the Commission file is perused. Apparently, there has been no attempt to ascertain the correct spelling. I have adopted the surname “Mackey”, as set out in the initial Application filed in the Commission. However, there is no doubt that whatever the correct spelling, it is a reference to one and the same person.
Ms Mackey is not mentioned at all in Reola Partners’ ‘Reply to Application to Resolve a Dispute’. She is described as a “Dependant” in the Commission’s initial correspondence with the parties, dated 10 May 2007. A letter in response to the Commission, dated 14 May 2007 from Higgins Solicitors, describes her as an “Applicant”. The relevant comments about her in the letter are:
“In relation to the Applicant Nicole Mackey, we advise that her telephone contact number is (07) 3314 8336.
We confirm that we are not actually acting for Ms Mackey but that she would be involved in the telephone conference.
Unfortunately, we do not appear to have her new address at this stage but we trust that her telephone will be sufficient.”
I can find no direct reference to Ms Mackey in the Morrisons’ ‘Reply to Application to Resolve a Dispute’, but for an oblique and general reference to, “one or more dependants”, in a copy of correspondence attached to it.
Ms Mackey is listed in the Arbitrator’s ‘Teleconference Arrangements and Outcomes’ form and is described as the “2nd Respondent”. The telephone number provided by Higgins Solicitors is endorsed on the face of this document. (I note that the Morrisons were described as the Second and Third Respondents in the Arbitrator’s Reasons, but invariably, as the Third and Fourth Respondents in the transcript of proceedings before him).
In a Commission document, ‘Notice of Conference and Hearing before Arbitrator’, dated 6 June 2007, she is listed as “Ms Mackey” and nominated as a Respondent. Thereafter, she is described in Commission documents as a Respondent. There is scant reference to her at all in the documents filed by the parties.
There is no record in the Commission of any application by anyone, for Ms Mackey to be joined as a respondent in the proceedings at any stage, nor of any order joining her in the matter. Furthermore, there is no indication that any documents have been served upon her. She has not formally corresponded with, or filed documents in, the Commission in relation to the proceedings, or any other associated proceedings of which I am aware, at any stage. Although her name is included in Commission correspondence to the parties, none of the Commission letters is actually addressed to her, and it is not apparent that copies of any of the correspondence or other relevant documents were sent to or served upon her. However, it seems that someone must have been keeping her informed informally, given that she was apparently involved in the teleconference before the Arbitrator and she actually appeared and gave brief oral evidence at the hearing before him on 10 July 2007. She is not and has never been, legally represented in any of the proceedings in this matter, in the Commission.
The intended relevance or significance of her evidence before the Arbitrator is not stated in the transcript.
In summary, Ms Mackey has never been a respondent in this matter, notwithstanding the assumptions that appear to have crept in along the way. According to her evidence, which was not challenged, she is the daughter of the deceased worker. That is not disputed. Her evidence was very brief and principally related to the relationship she had with her father, the extent of the contact she had with him and a reference to no monetary support from him over the years. She made no specific reference as to dependency; she did not mention any claim of entitlement to payment of compensation; the Arbitrator made no findings about her, and he did not include any reference to her as a dependant or otherwise, in the award that he made. Neither the Arbitrator nor the other parties made any further inquiry of her in the hearing before the Arbitrator.
Notwithstanding the apparent confusion on the part of all concerned as to her actual status in the proceedings in the Commission, she was, as I have said, named as a dependant in the initial Application. The purpose of her evidence and whether she was a claimant dependant, or thought she was, are unclear.
Partial dependency and section 26 of the 1987 Act
Reola Partners submit that the present case is unlike the situation in Aafjes where the deceased had, notwithstanding earlier failure to pay support, resumed payment of financial support as at the date of his death. They cite McTiernan J in Aafjes where he refers to “the probability that she (i.e. the child) would expect him (i.e. the parent) to be a standby in a case of necessity” and submit that the statement of Ms Miller suggests that “certainly whilst the children remained with her there would be no support provided by him”.
Reola Partners also refer to So where Santow JA refers to the decision in Potts v Niddrie & Benhar Coal Co Ltd [1913] AC 531 (also referred to in Aafjes) where His Honour made reference to the following dicta of Lord Shaw of Dunfermline:
“On the one hand there may be a temporary absence of a husband or a father, with the expectancy of immediate aid on the part of those left behind. That is the one extreme. On the other hand there may be a long absence entirely acquiesced in, and those left behind my live a separate and completely independent life, having no reliance whatsoever either upon support actually obtained or possible through the agency pf the law. Between those two extremes there are many gradations, leaving room for the Arbitrator to pronounce upon dependency – whether it is total, partial or whether it exists.”
Reola Partners submit that the gradations in the present case tend to the proposition of partial dependency and that the Arbitrator erred in finding otherwise. They state that the minimum level of contribution by the deceased worker; the substantial arrears; what is suggested to be a lack of practical reliance; the fact that the situation would not have changed while the Morrisons lived with their mother, and the speculation as to if and what extent the situation would have changed in the future, all tend to support a conclusion that the Morrisons were partly dependent. Therefore, in terms of assessing the level of partial dependency for the purposes of section 26 of the 1987 Act, it was submitted to the Arbitrator that an award of $5,000 for each of them was appropriate.
It is further submitted that in assessing entitlements under section 26 of the 1987 Act it is necessary to consider what is “reasonable and proportionate to the financial injury of those dependents” (Warilla Timber & Hardware Pty Ltd v Newton (1995) 11 NSWCCR 546 at 551). Furthermore, the financial loss in this case is modest and that any award under section 26 of the 1987 Act should reflect minimal financial loss.
The Morrisons submit that the principle enunciated by the High Court in Aafjes not only compels the conclusion reached by the Arbitrator, it prevents intervention in this case, and further, it is not valid to distinguish the decision on its facts. It is also submitted that the Arbitrator’s determination of dependency goes to discretion and factual findings.
Costs
Reola Partners submit that Arbitrator failed to deal with a costs issue. They submit that the matter was a ‘complex’ one for the purpose of costs. They submit that this was raised with the Arbitrator who “acceded”, indicating that his award would include a costs order, which would reflect that the matter was complex. However, he omitted to do so. It is submitted that the parties were not required to address on the issue, “and it was assumed and agreed by all that it was an appropriate order”. They submit that in the circumstances, the final award of the Commission should reflect this. Reola Partners request that the costs order be certified complex. They state:
“This is a matter which of itself may not have necessitated an appeal and may have been appropriate for correction as a slip. However, as the matter is now the subject of an appeal, the appellant seeks that the costs order be corrected accordingly.”
Ms Dutoit, the First Respondent does not oppose this ground of appeal, and states at paragraph 4 of her submissions on appeal, “The first respondent supports the proposed Relief Sought 1 to 4 for the reasons submitted by the appellant.” The Morrisons, who are the Second and Third Respondents in the appeal, make no comment on the matter.
There is no mention of costs recorded in the transcript of proceedings before the Arbitrator. A search of the Commission file has revealed no reference, notation, submission, request, file note, or other record of any exchange or consideration as to costs, or any indication that the Arbitrator acceded to a request to certify the matter as “complex”. If there was an exchange as alleged, there is no record of it.
Accrual of weekly payments
The Second and Third Respondents submit that contrary to the finding made at paragraph 20 of the Arbitrator’s Reasons, the weekly payments should accrue not from the date of the claim but from the date of death of the worker, being 4 May 2006.
The Arbitrator made the following order dated 27 July 2007:
“3. That the first Respondent pay to the second Respondent, Laura Morrison, and the third Respondent, Amanda Morrison, weekly payments of compensation from 26 April 2007 to date pursuant to s25 (10(b) of the 1987 Act at the applicable rates as adjusted from time to time; such payments to continue in accordance with the Act.”
DISCUSSION AND FINDINGS
Section 25 of the 1987 Act provides:
“25 Death of worker leaving dependants
(1)If death results from an injury, and the worker leaves any dependants wholly dependent for support on the worker, the amount of compensation payable by the employer under this Act shall be:
(a) the amount of $211,850, and
(b) in addition, an amount of $66.60 per week in respect of:
(i) each dependent child of the worker under the age of 16 years, and
(ii) each dependent child of the worker being a student over the age of 16 years but under the age of 21 years.
(2)Payments in respect of a dependent child under subsection (1) (b) shall continue:
(a) except as provided by paragraph (b)—until the child dies or reaches the age of 16 years, whichever first occurs, or
(b) in the case of a dependent child who is a student at the time of the worker’s death or after reaching the age of 16 years—until the child dies, reaches the age of 21 years or ceases to be a student, whichever first occurs.
(3)The amount of any weekly payments, or other compensation payable under this Act, shall not be deducted from the amounts referred to in subsection (1) (a) or (b).
(4)If an amount mentioned in subsection (1) (a) at any time after the commencement of this Act:
(a) is adjusted by the operation of Division 6, or
(b) is adjusted by an amendment of this section,
the compensation payable under subsection (1) (a) is to be calculated by reference to the amount in force at the date of death.
(4A)If the death of a worker results both from an injury received before the adjustment of an amount mentioned in subsection (1) (a) and an injury received after that adjustment, the worker shall, for the purposes of subsection (1) (a), be treated as having died as a result of the injury received after that adjustment.
…”
Section 26 of the 1987 Act provides:
“26 Death of worker leaving partial dependants
If death results from an injury and the worker does not leave any dependants wholly dependent upon the worker for support, but leaves dependants in part so dependent, the compensation payable by the employer under this Act shall be:
(a) if the employer so agrees—the amount that would have been payable under section 25 if those dependants had been wholly dependent on the worker,
(b) if agreement is reached for the payment of an amount less than the amount provided by paragraph (a) and the amount agreed on is approved by the Commission as reasonable and proportionate to the injury to those dependants—the amount so approved, or
(c) in default of agreement as to the amount to be paid or in default of approval by the Commission for payment of an agreed amount under paragraph (b)—such amount (not exceeding the amount provided by paragraph (a)) as is determined by the Commission to be reasonable and proportionate to the injury to those dependants.”
Did the Arbitrator err in finding that the Morrisons were wholly dependent on the deceased worker pursuant to section 25 of the 1987 Act?
Reola Partners state that this is the “substantive issue agitated on this appeal”, along with the “consequent lump sum award of compensation made in their favour pursuant to s.25 (1)(a) of the Act. Subsidiary to that issue is the quantum of the lump sum which should be awarded under s.26 of the Act.” [Death of a worker leaving partial dependants].
Reola Partners conceded that Ms Dutoit is partially dependent and there was no dispute as to that issue, before the Arbitrator. However, they submit that the claim made by the Morrisons was made on the basis of partial dependency only, and that the assertion that they were wholly dependent was made for the first time “at the conciliation/arbitration hearing”.
Ms Dutoit’s Application was made on the basis that she, the Morrisons and Ms Mackey were dependent upon the deceased worker. At 5.6 of the Application, it is indicated that the compensation was sought pursuant to “s25/26”.
The Morrisons submit that their Reply “raised dependency”. That is correct. However, the following is relevant to this issue:
(i)In response to a letter dated 24 October 2006 from Moray & Agnew, Solicitors, Firths, representing Amanda Morrison stated in its letter of 8 December 2006, that the claim was for partial dependency; was being brought under section 26 of the 1987 Act, and that it “is a modest claim”. A copy of that letter was attached to the Reply filed on behalf of Amanda Morrison.
(ii)The Reply filed on 26 April 2007 by Carroll & O’Dea, representing Laura Morrison, alluded to “dependency” but made no reference to the extent of that dependency. However, in its ‘Application to Admit Late Documents’ filed on 23 May 2007, reference is made to Laura Morrison’s “claim for partial dependency”. The late document was in fact the Reply, as the original had been rejected.
It is clear from a reading of the Arbitrator’s Reasons and the transcript of proceedings that the claim for “wholly dependent” first arose at some time during the conciliation/arbitration proceedings. A preliminary discussion took place at the beginning of the arbitral hearing, and on the basis of the evidence to be relied upon, Counsel for Reola Partners said, “I can’t point to any prejudice”. He added, “And we’ll proceed on the basis that my friends are asserting a claim for whole or, alternatively, partial dependency.” (See page 5 of transcript).
Given the concession made by Counsel for Reola Partners before the Arbitrator, and his agreement to proceed essentially on the basis that the Arbitrator would determine the issue of whole or partial dependency, it is not appropriate to raise an objection retrospectively, to such an approach, simply because of an adverse outcome.
The Arbitrator was not in error in proceeding on the basis outlined, and I find accordingly.
The Arbitrator briefly summarises the submissions of the parties in paragraphs 9 to 13 of his Reasons and sets out his reasons for decision at paragraphs 14 to 18 inclusive as to whether the Morrisons were wholly or partially dependent upon the deceased worker at the time of his death. His reasons for decision as to apportionment of the lump sum amount pursuant to section 25(1)(a) of the 1987 Act, the weekly payments pursuant to section 25(1)(b) of that Act, and interest are found in paragraphs 19 to 21 of his Reasons.
At [14], in referring to Aafjes he said, “A ‘legal obligation to provide that support exists, which has not been abandoned …’ might be enough.”
The Arbitrator observed at [15] that the “contact between the Second and Third Respondent daughters with their father through their childhood and at the time of death was minimal ... [p]art of the reason for the estrangement was the animosity between the girls’ mother and the deceased.”
The Arbitrator concludes at [16] that having regard to the cases discussed in the summary of the parties’ submissions (see [9] – [13] of his Reasons); the payment of child support by the deceased worker and the Morrisons’ future expectations “seems to me to establish that the sisters were wholly dependent on their father at the time of death.” At [17] he rejects the proposition that the future expectations of the Morrisons were “only speculative”, stating that the animosity between the deceased worker and their Mother “had the effect of delaying the potential relationship with their father, but after completing high school, it would have been, as they state, much more likely that they could build the relationship with their father.”
The Arbitrator bases his conclusions on the fact that the child support payments were paid by the deceased worker to the Morrisons’ Mother and “applied to them, together with the support provided by their Mother.” He stated, “Even if the amounts were at times only approximately $1,000 per year this is not insignificant.” On the evidence, there were a number of years, some in succession particularly in the years leading up to the death of the deceased worker, in which no payments were made at all. The Arbitrator makes no comment as to the significance, if any, of that situation or his reasons for concluding that the payment of some mandated child support payments, at irregular intervals, was a factor in grounding whole and not partial dependence. He observed that So supported the proposition that a child can be wholly dependent on both parents at the same time, with contributions from each of them.
This was the sum total of the Arbitrator’s analysis of the evidence, in reaching his conclusions. In my view, his analysis is inadequate. There is little discussion and articulation of his view of the competing submissions and evidence in this matter. This may be particularly important in this case, given that the initial claim was made for partial and not whole dependency. His analysis in relation to the questions of “reliance” of the Morrisons’ upon their deceased father, and future “probabilities” arising from the “expectations” expressed by the Morrisons, is deficient. Given that there was little dispute as to the basic facts in this matter, it was incumbent upon the Arbitrator to provide a clear and adequate, but not necessarily lengthy, analysis.
Did the Arbitrator err in his application of the law to the facts of the case?
The Arbitrator makes only brief, passing reference to some of the relevant law, in terms of his application of it to the facts of the case, although he does briefly summarise the parties’ opposing submissions in this respect. However, a number of authorities relied upon in the proceedings were not addressed by the Arbitrator, and it is unclear whether or not he took them into account in arriving at his decision. His cursory treatment of the evidence and his application of the law to the facts of the case are inadequate, in arriving at his conclusions.
Did the Arbitrator err in failing to give adequate reasons for his decision?
Rule 15.6 of the Workers Compensation Commission Rules 2006 (the Rules), provides:
“(1)A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a)the Commission’s 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 the 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.”
It is not necessary for an arbitrator to give lengthy reasons for his or her decision. However, it is necessary to comply with Rule 15.6.
It is not necessary for an Arbitrator to refer in detail to the evidence of each and every fact in issue, nor each and every step in the reasoning process (Yates Propety Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424). The requirement for lengthy reasons would be unreasonable and inconsistent with the objectives of the Commission (Liverpool City Council v Trovato [2004] NSWWCCPD 15). However, a statement of reasons must set out “with enough clarity, the relevant findings on material questions of fact, the Arbitrator’s understanding of the applicable law [and] the Arbitrator’s application of the law to those findings.” (Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56 at [45]).
An Arbitrator must not only note the relevant evidence and give reasons for findings made, but where the evidence is disputed, he or she must give a clear explanation of the reasons why some of it is preferred over other evidence (see Mayne Group Limited v Mikhail [2006] NSWWCCPD 249 at [41]. See also as to giving reasons, Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134; Hume v Walton [2005] NSWCA 148; Soulemezis). In the matter, the subject of this appeal, the Arbitrator was required to provide at least a brief analysis of the facts and convey to the parties his reasons for preferring some submissions as to the significance of those facts, the significance he attaches to them, and the application of the law to them, as opposed to submissions made to the contrary.
In the High Court of Australia in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Palme [2003] HCA 56 at [64], Kirby J said:
“The more significant the decision the clearer the duty may be, the clearer the reasons should be and the clearer the consequences will be for the breach. Some decisions cry out for a clear explanation … Especially is this so where the legislature has recognised the need and imposed a duty to give reasons and where the decision is very important for the person affected and for others close to that person.”
In my view, the Arbitrator’s reasons for decision are inadequate. The evidence and submissions made by the parties demanded closer and more comprehensive analysis than was undertaken by the Arbitrator in his Reasons, and by reference to the contents of transcript of the proceedings before him, and the written statements and other relevant documents that were in evidence.
The inadequacy of the Arbitrator’s reasons amounts to an error of law. Accordingly, this ground of appeal is made out.
Did the Arbitrator err in failing to certify the matter as ‘complex’ for costs purposes?
Having regard to what is set out at [83] – [85] above, an error on the part of the Arbitrator is not demonstrated. This ground of appeal is not made out.
Did the Arbitrator err in failing to deal with the position of the deceased worker’s daughter, Nicole Mackey?
Nicole Mackey was included in Ms Dutoit’s Application as a dependant of the deceased worker. She gave brief evidence before the Arbitrator of her relationship with her father, the extent of her contact with him, and the lack of monetary support from him “over the years”.
The circumstances of her inclusion in this dispute and the way in which it has unfolded in relation to her, is set out above.
The Arbitrator made no findings about her relationship with her deceased father, nor as to whether she was wholly or partly dependent upon him, or at all. His award did not take her into account. His only reference to her is found at [7] of his Reasons:
“To the extent that it was logically probative and relevant to the facts and issues in dispute the following oral evidence was taken into account in making this determination:
Unsworn evidence of Nicole Francis Mackey.”
Reola Partners ask the Commission to make orders acknowledging that she did not press any claim for compensation.
Ms Dutoit opposes this request, saying that Nicole Mackey “was not a party to the proceedings and there was no evidence to make any adverse finding on dependency.”
The Morrisons make no comment.
In relation to Ms Mackey’s oral evidence, Reola Partners say at [36] of their submissions on appeal, “With respect, no-one knows what the Arbitrator made of that evidence.” I agree.
In his Reasons the Arbitrator gave no indication of the relevance of Ms Mackey’s evidence; whether it was taken into account in relation to her own position; whether it was relevant to the positions of Ms Dutoit or the Morrisons, or what other purpose it served, if any.
It is true that on the face of the transcript and other documents in the Commission file, there is no indication that Ms Mackey actually pressed a claim for compensation. On the other hand, as Ms Dutoit observes, there is no evidence upon which an adverse finding on dependency should be made. Indeed, no finding was made at all. Her situation has not been resolved one way or the other.
There is no indication that the Arbitrator considered her position, notwithstanding that she was included in the initial Application as a dependant. The whole of his Reasons and reasoning relates to the positions of Ms Dutoit and the Morrisons.
Ms Mackey was unrepresented at all times. There is no evidence or indication that she has been informed of her rights such that she was able to make a considered decision about her position. There is no indication that the Arbitrator endeavoured to assist her or explain anything to her. There is no indication that Ms Mackay understood what was happening, why she was involved, and what the implications and consequences might be for her. If anything was explained to her, no note of it appears in the file or on the transcript of the proceedings.
Notwithstanding that she was included in the Application at the outset, as a dependant, and almost right throughout the proceedings she was referred to as a respondent, the whole matter went on around her, barely including her at all. There is no definitive statement as to what the Arbitrator regarded as her status in the matter.
Higgins Solicitors, who were not representing her, drew the Commission’s attention to Ms Mackey and provided her telephone number. They considered her to be an Applicant in the matter. While no submissions or other documents were made or filed by or on behalf of Ms Mackey, other than the initial Application, it is obvious that someone was keeping her informed, to some extent at least, as to the progress of the matter. However, there is nothing in the file to indicate that the Commission kept her informed, or that she was served with copies of any of the documents filed in this matter, notwithstanding that the Commission referred to her as a respondent (after initially referring to her as a dependant). Nevertheless, she featured in the teleconference, and the arbitral hearing, albeit, quite briefly and somewhat incidentally.
It is submitted by Reola Partners that the fact that she was not seeking compensation is not in issue. That may be so, but it cannot be entirely clear in the absence of some indication that Ms Mackey understood what was happening or what rights she may have had in the matter. In the absence of such an understanding she would not be capable of making a considered decision about her position, and as to whether or not she could or should press a claim, and whether indeed she thought that she was a claimant by reason of her involvement in this matter. This is all the more so because Ms Mackey is nominated in the Application as a dependant. Furthermore, there had to be some point in giving her oral evidence at the hearing, but that point remains unclear. It is all the more curious, by reason of the fact that she travelled from Queensland for the arbitral hearing. If all of this was clear to the Arbitrator, he made no note of, or statement about it.
I agree with Reola Partners that the Arbitrator has failed to deal with the position of Ms Mackey. A critical part of his omission was his failure to ensure that Ms Mackey understood what has happening including the purpose of her involvement, to ascertain her expectations, and to enable her to obtain proper advice should that have been necessary or desirable. On what is before me, including the Arbitrator’s Reasons, it seems that he has failed to ascertain and to take into account considerations that were likely to be relevant and material in this matter (see Rohloff v Diacut Pty Limited (in Liquidation) [2005] NSWWCCPD 17; House; Re National Roads and Motorists’ Association Ltd [2003] FCAFC 206).
The Arbitrator is in error. While the ground of appeal is upheld, the relief sought is not appropriate, given the circumstances in which Ms Mackey is placed, based on the evidence and material before me. It suggests, in the absence of anything to the contrary, that an injustice has taken place in that she has not been afforded a proper opportunity to understand, declare or pursue her position, nor has her status and position been mentioned, considered or determined by the Arbitrator, notwithstanding that she was included in the initial Application as a dependant, along with Ms Dutoit and the Morrisons. The “concern of the law is to avoid practical injustice” (Re Minister for Immigration & Multicultural Affairs; Ex part Lam [2003] HCA 6, per Gleeson CJ). This observation was made in an entirely different context. Nevertheless, it applies equally in the circumstances of this matter.
Accrual of weekly payments
The fact of dependency of the Morrisons is determined at the date of death of their Father (Grant v. Dick Benbow & Associates [2000] NSWCC 44; (2000) 20 NSWCCR 484; Grubisich v Broken Hill South Ltd [1932] WCR 2160. It is the extent of that dependency at the date of death that is determined by taking into account “past happenings and future probabilities” (Aafjes; Jeffrey v Commissioner for Government Transport [1957] 57 SR (NSW) 634). The compensation specified in section 25 becomes payable upon the worker’s death and where he leaves dependants who are wholly reliant upon him for support, at the time of his death. The amounts specified are payable by reason of those events, regardless of whether all or only some of the dependants make a claim (Bosnyak v Wroblewski (1974) 132 CLR 122; (1974) 4 ALR 671).
I agree with the Morrisons that consequent upon his findings that they were wholly dependent upon the deceased worker, the Arbitrator ought to have made the award of weekly payments under section 25(1)(b) of the 1987 Act to date from the date of death of the deceased worker, that is 4 May 2006, and not 26 April 2007, the date on which the original Application was filed in the Commission.
However, this becomes irrelevant for the purposes of this appeal and I make no formal finding. I propose to revoke the Arbitrator’s decision and remit the matter to another Arbitrator for determination afresh.
DECISION
For the reasons set out in this decision, the Arbitrator’s determination dated 27 July 2007 is revoked. The matter is remitted to another Arbitrator for determination afresh, in accordance with these Reasons.
COSTS
No order is made as to the costs of this appeal.
Gary Byron
Deputy President
2 January 2008
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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