Gaunt v Swanes Nurseries Australia Pty Ltd
[2024] NSWPIC 510
•16 September 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Gaunt v Swanes Nurseries Australia Pty Ltd [2024] NSWPIC 510 |
| APPLICANT: | Alison Gaunt |
| RESPONDENT: | Swanes Nurseries Australia Pty Ltd |
| SENIOR MEMBER: | Kerry Haddock |
| DATE OF DECISION: | 16 September 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim for interest on lump sum death benefit; Haidary v Wandella Pet Foods Pty Ltd; Kaur v Thales Underwater Systems Pty Ltd; Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited considered; Held – claim not duly made until evidence provided that worker’s parents did not claim to be dependent for support on worker so that finding as to dependency could be made; refusal to exercise discretion to award interest on lump sum death benefit; award for respondent in respect of claim for interest. |
| DETERMINATIONS MADE: | The Commission determines: 1. There is an award for the respondent in respect of the claim for interest on the lump sum death benefit. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Alison Gaunt (Ms Gaunt), is the sister of the worker, David Gaunt (Mr Gaunt/David).
Mr Gaunt died on 31 December 2021, as a result of injury sustained on 6 December 2016, arising out of or in the course of his employment with Swanes Nurseries Australia Pty Ltd (the respondent).
By letter dated 16 August 2022, the applicant’s solicitors served on the respondent’s insurer, Employers Mutual Limited (EML) a Notification Form, dated 14 August 2022.
On 2 March 2023, EML issued the applicant with a notice disputing liability, pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
By letter dated 15 September 2023, the applicant’s solicitors sought on her behalf a review of EML’s decision.
On 28 September 2023, EML issued a further notice, advising that its decision to dispute liability was maintained.
The applicant lodged an Application in Respect of Death of Worker (the Application) on 21 June 2024.
The Application claimed that Mr Gaunt died on 31 December 2021 as a result of injury to his lumbar spine arising out of or in the course of his employment with the respondent on 6 December 2016.
The applicant claimed the lump sum death benefit of $849,300, to be paid to the worker’s estate, as Mr Gaunt did not have any dependants.
The respondent lodged its Reply on 11 July 2024.
ISSUE FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) whether the applicant is entitled to an award of interest on the lump sum, and, if so, the period during which, and the rate at which, interest is to be paid.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)
The matter was listed for preliminary conference on 22 July 2024. Ms Azer appeared for the applicant, who was present. Mr Michael appeared for the respondent, instructed by Ms Laird of EML and Ms Dean of icare.
The respondent accepted liability for the claim on 19 July 2024.
The applicant had, on 21 July 2024, served the respondent with a statutory declaration declared by Mr Gaunt’s father, Mr Frank Rodney Gaunt, which addressed the issue of whether he or Mr Gaunt’s mother claimed to have been dependent for support on the worker.
Ms Azer had emailed Mr Gaunt senior’s statutory declaration to the Commission on the morning of the preliminary conference, so it was available to me.
The applicant was directed to lodge and serve an Application to Admit Late Documents, attaching Mr Gaunt senior’s statutory declaration, on or before 29 July 2024, and complied with that direction.
The applicant pressed a claim for interest, which was opposed by the respondent.
Ms Azer advised that she wished to seek advice with respect to the claim for interest, and the matter was accordingly listed for further preliminary conference on 29 July 2024. Mr Malouf of counsel, instructed by Ms Azer, appeared for the applicant, who was present. Mr Michael appeared for the respondent, instructed by Ms Asvestas of EML and Ms Dean of icare.
Findings and orders were made in respect of the claim for the lump sum death benefit and funeral expenses. The orders were subsequently amended on 16 August 2024, at the request of the parties.
The parties were unable to agree on the claim for interest. Directions were accordingly made for written submissions on this issue to be lodged and served, and the parties complied with that direction.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents, dated 24 July 2024 and attached documents, lodged by the applicant.
Oral evidence
There was no application to call oral evidence or cross-examine any witness.
FINDINGS AND REASONS
Given the discrete issue in dispute, much of the evidence need not be considered.
Evidence of the applicant, Alison Gaunt
Ms Gaunt made a statement dated 26 February 2024. Her evidence is directed to the issue of liability, which is no longer in dispute, and the issue of dependency is not addressed.
Evidence of Frank Rodney Gaunt
Mr Gaunt senior’s first statement is dated 26 February 2024. His evidence, too, is directed mainly to the issue of liability.
Mr Gaunt senior stated that the worker was living with him and his wife full-time both before and after his injury.
In his statutory declaration, declared on 19 July 2024, Mr Gaunt senior stated that he is married to Maureen Alice Grace Gaunt (Mrs Gaunt), with whom he has two children, the worker and the applicant.
To his knowledge, David had no children, and to his knowledge and belief, no person was dependent on David for support at the time of his death.
He was not himself dependent for support on the worker.
He has an Enduring Power of Attorney, a copy of which was provided, on behalf of Mrs Gaunt, who resides in an aged care facility. She was not dependent for support on the worker at the time of his death.
Mr Gaunt senior confirmed that neither he nor Mrs Gaunt sought to make any claim on the lump sum death benefit.
SUBMISSIONS
As the submissions were provided in writing, and remain with the Commission’s file, I will refer to them only briefly.
Applicant
The applicant submitted that she made a claim for the lump sum death benefit on behalf of the worker’s estate on 14 August 2022. The respondent accepted liability for the worker’s death, and therefore the claim, on 18 July 2024.
The applicant’s claim for interest was made pursuant to s 109 of the 1998 Act. She referred to the decision of Deputy President Fleming in Haidary v Wandella Pet Foods Pty Ltd.[1]
[1] [2005] NSWWCCPD 9 (Haidary).
The applicant also relied on the decisions in Bennett v Jones[2] and of Arbitrator Sweeney, as he then was, in Beves v Patrick Stevedores No 2 Pty Ltd & Anor.[3]
[2] [1977] 2 NSWLR 355.
[3] [2014] NSWWCC 178.
The applicant submitted that “duly made” has been held to mean “fully particularised”;[4] and the claim was duly made on 14 August 2022.
[4] Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited – [2020] NSWWCC 36 (Kratz).
The applicant submitted that the Notification Form was created, issued, and authorised by icare. Having been completed accurately and entirely, it must have duly notified the respondent of the claim. If it did not, icare has created, and requires the use of, an inaccurate document to be completed for this precise purpose.
The applicant submitted that this case demonstrably differed from Kratz. The Notification Form amounted to full particularisation because the claimant was the worker’s next of kin, and advised icare that there were no other financial dependants. There was thus no need for further particularisation of dependency.
The applicant submitted that the respondent had sufficient information to determine the claim on the lodgement of the Notification Form on 14 August 2022. It delayed determination of the claim for almost two years.
Whilst an award of interest is discretionary, the applicant submitted there was no reasonable explanation for the delay that would weigh against granting interest. The applicant was deprived of the benefit of the funds for a significant period.
The applicant submitted that, objectively, the respondent had had the monies from the time the claim was particularised, and presumably invested them to its advantage.
The applicant submitted that the Commission ought to exercise its discretion to award interest from 14 August 2022.
In the alternative, the applicant submitted that the “absolute latest date” when the claim was fully particularised was on 15 September 2023, when she sent to the respondent a report of Dr (Eric) Lim with regard to causation.
The applicant submitted that it was crucial that the only particular requested by the respondent was evidence of causation. (Emphasis in original.) The respondent issued a further s 78 notice on 28 September 2023, but nowhere did it advise that the matter was not fully particularised.
The applicant submitted that the respondent did not obtain medical evidence to dispute the claim, so nothing changed from the date when Dr Lim’s report was provided until the respondent accepted the claim on 18 July 2024. This was “entirely unexplained and is unsatisfactory.”
If her first submission was not accepted, the applicant submitted that the Commission ought to exercise its discretion to award interest commencing no later than 15 September 2023.
As regards the rate of interest, the applicant submitted that the appropriate rate is, as has been held on many occasions, a rate of 2% above the RBA (Reserve Bank of Australia) cash rate. She has provided the applicable RBA cash rates.
The applicant sought on order that interest be paid at the rate that is 2% above the RBA cash rate from 14 August 2022 to 29 July 2024; or, alternatively, from 15 September 2023 to 29 July 2024.
The applicant did not make any submissions in reply.
Respondent
The respondent provided a chronology of events.
The respondent also relied on the decision in Kratz, as well as those in Kaur v Thales Underwater Systems Pty Limited;[5] Hu v Rongfar Property Services Pty Limited;[6] and Youseph v Homebush Unit Trust trading as Primo Smallgoods.[7]
[5] [2011] NSWWCCPD 6 (Kaur).
[6] [2021] NSWPIC 95.
[7] [2021] NSWPIC 299.
The respondent referred to Procedural Direction WC1, at paragraph 29.
The respondent submitted that the medical issues as to causation of the worker’s death were complex. The medical evidence as to causation was not provided until 15 September 2023 and 7 June 2024. Lay evidence as to causation was also provided on 7 June 2024.
The respondent submitted that the grant of probate and statutory declaration allowing findings of dependency were not provided until 27 June 2024 [sic].
The respondent submitted that, on the authorities, the claim was not “fully particularised” until 21 July 2024, after the Application was lodged.
The respondent submitted that the discretion to award interest should not be exercised. In the alternative, interest should be awarded from 21 July 2024, when the claim was “fully particularised.”
As regards the rate of interest, the respondent also relied on the decision in Haidary.
The respondent submitted that the Commission should take into account the actual rates of interest offered by banks, which are consistent with RBA cash rates. The respondent relied on the decisions in Baldwin v Fleetmaster Services Pty Limited;[8] Mudgee Explorer Tours Pty Limited v Clarke;[9] Hughes Helicopters Pty Limited v Brink;[10] and BAJ by her tutor BAK v SCPR & M Pennisi (no longer trading).[11]
[8] (1648/20).
[9] [2021] NSWPIC 41.
[10] [2021] NSWPIC 393.
[11] [2022] NSWPIC 217.
The respondent submitted that the rate of interest should be no more than the RBA cash rate.
SUMMARY
Section 109 of the 1998 Act provides:
“(1) In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.
(2) Interest cannot be ordered under this section--
(a) on any compensation payable under Division 4 of Part 3 of the 1987 Act, or
(b) on any compensation payable under this Act for any period before a claim for the compensation was duly made, or
(c) on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102.
(3) This section does not--
(a) authorise the giving of interest upon interest, or
(b) apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.”
In Haidary, Fleming DP said:
“The award of interest by the Commission, pursuant to section 109 of the 1998 Act is discretionary. Mr Haidary will only be entitled to interest, if awarded, on those amounts of his weekly entitlement that were unpaid, and only from the date that his claim ‘was duly made’…The purpose of ordering interest on an award is to compensate the worker for the loss of his or her income, not to penalise the employer (Virag v James N Kirby t/as Betts Electric Motors[12]; Healey v McPherson Binding Pty Ltd[13]).”
[12] [1990] NSWCC 1; (1990) 6 NSWCCR 86.
[13] (1989) 5 NSWCCR 139.
An award of interest is also subject to the limitations provided for in ss 109(2) and 109(3) of the 1998 Act.
Section 109(2)(b) of the 1998 Act provides that interest cannot be ordered on any compensation payable for any period before a claim for compensation was duly made.
The decision of President Keating in Kaur has been consistently applied in the Commission.
His Honour said, at [139]:
“Section 109(2)(b) of the 1998 Act prohibits interest on any award of compensation payable under the Act for any period before a claim for the compensation was duly made. I accept the submission that the claim for compensation on behalf of the appellants was not duly made until the day of the arbitration. I therefore accept Thales’s submission that, as at the arbitration, the appellants could not be entitled to interest pursuant to s 109 of the 1998 Act.”
“Duly made” has been held to mean “fully particularised” – Kratz and the cases discussed therein.
The applicant submitted that, in completing the Notification Form, she must have duly notified the respondent of the claim. It may be accepted that she gave notice of the claim, but the notice felt far short of fully particularising the claim.
The applicant provided no medical evidence in support of the claim until 15 September 2023. No evidence regarding the worker’s condition and circumstances before his death was provided until the applicant made her statement dated 26 February 2024. That statement did not refer to any potential dependants, including the worker’s parents.
Mr Gaunt senior’s statutory declaration, addressing the potential dependency of both he and his wife, was declared on 19 July 2024, and was served on the respondent on 21 July 2024.
In the matter of Kratz, Arbitrator Isaksen, as he then was, held that the applicant’s claim was not fully particularised until the applicant filed evidence that addressed the issue of dependency, and the possibility that the worker’s biological mother may have a claim on the lump sum death benefit.
I regard this matter as analogous to Kratz. The applicant’s claim was not “duly made” until the evidence of Mr Gaunt senior was served on the respondent on 21 July 2024. It was not until then that the claim was fully particularised, and the evidence was sufficient to establish that there were no persons dependent for support on the worker.
The orders for payment of the lump sum death benefit and funeral expenses were made on 29 July 2024, but could have been made on 22 July 2024, when all the evidence regarding potential dependants was available.
The matter was adjourned for further preliminary conference on 29 July 2024, as the applicant’s representative wished to obtain advice about the claim for interest. Section 109(2)(c) would prohibit an award of interest between 22 July 2024 and 29 July 2024.
In my view, the only period in respect of which interest may be awarded was from 21 July 2024 to 22 July 2024. In those circumstances, I have determined that it is not appropriate that I exercise my discretion to award interest on the lump sum death benefit; and I decline to do so.
The order is set out in the Certificate of Determination.
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