Jamal v Nonabel Concrete Pty Ltd
[2018] NSWWCCPD 42
•4 October 2018
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Jamal v Nonabel Concrete Pty Ltd [2018] NSWWCCPD 42 | |
| APPELLANT: | Ali Jamal | |
| FIRST RESPONDENT: | Nonabel Concrete Pty Ltd | |
| SECOND RESPONDENT: | Mayssoun Ali Kanj | |
| THIRD RESPONDENT: | Fatme Obeid | |
| FOURTH RESPONDENT: | Sari Jamal | |
| FIRST RESPONDENT’S INSURER: | AAI LTD trading as GIO – Agent for the Worker’s Compensation Nominal Insurer | |
| FILE NUMBER: | A1-2125/17 | |
| ARBITRATOR: | Mr B Batchelor | |
| DATE OF ARBITRATOR’S DECISION: | 22 May 2018 | |
| DATE OF APPEAL DECISION: | 4 October 2018 | |
| SUBJECT MATTER OF DECISION: | Deceased worker, whether error of fact in determining that the appellant was not dependent upon the deceased; s 25(1)(a) of the Workers Compensation Act 1987 | |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Self-represented |
| First Respondent: | McCabe Curwood | |
| Second Respondent: | No appearance | |
| Third Respondent: | Slater and Gordon Lawyers | |
| Fourth Respondent: | Turner Freeman | |
| ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 22 May 2018 is confirmed. | |
INTRODUCTION
These proceedings concern claims against Nonabel Concrete Pty Ltd (Nonabel) in respect of the death of Souhayb Jamal (the deceased). The deceased died on 28 March 2017 as a result of injury received in the course of his employment with Nonabel on 27 March 2017.
The claims were for the lump sum death benefit provided for in s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act), which was $765,650 as at the date of death.
Mr Ali Jamal, Ms Mayssoun Ali Kanj (also referred to in some documents as Ms Mayssoun Al Kanj), Mrs Fatme Obeid and Ms Sari Jamal all alleged that they were at least partly dependent on the deceased at the date of death.
BACKGROUND
Mr Ali Jamal is the deceased’s father. Mrs Obeid, the deceased’s mother, was previously married to Mr Jamal. They had separated more than twenty years prior to these proceedings. Ms Ali Kanj and Ms Jamal were sisters of the deceased.
There were a number of other siblings of the deceased and as Mr Jamal had remarried, there were also seven half siblings. None of these other siblings claimed dependency.
The only claimed dependant living in Australia was Ms Ali Kanj. Each of the remaining potential dependants lived in Lebanon. Mrs Obeid and Ms Jamal resided together.
The deceased had been employed with Nonabel for only about one week when the injury occurred, and this was his first employment since he had arrived in Australia some months previously. While in Australia, he lived with Ms Ali Kanj, who was estranged from her husband and had two small children.
Nonabel filed an Application in Respect of Death of a Worker (the application) on 2 May 2017 seeking apportionment of the lump sum benefit. A number of telephone conferences were conducted and directions were issued by the Arbitrator to ensure that all potential dependants were notified of the proceedings and given the opportunity to make a dependency claim. The matter proceeded to arbitration on 30 April 2018.
In his Certificate of Determination (COD), the Arbitrator found that he was not satisfied that Mr Jamal was dependent on the deceased. He apportioned the lump sum death benefit as follows:
(a) Ms Ali Kanj – $229,695.00,
(b) Mrs Obeid – $459,390.00, and
(c) Ms Jamal – $76,565.00
Both Mr Jamal and Ms Ali Kanj appealed the Arbitrator’s determination. Ms Ali Kanj’s appeal has been dealt with separately in Ali Kanj v Nonabel Concrete Pty Ltd.[1]
[1] [2018] NSWWCCPD 43 (Ali Kanj v Nonabel).
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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.”
Mr Jamal has made no submission to the Commission as to whether or not this matter requires an oral hearing. All other parties to the appeal have indicated that the matter is suitable for determination “on the papers”.
I have given regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties as to whether the appeals can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing. This is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no issue that the appeal satisfies the necessary monetary threshold pursuant to s 352(3) of the 1998 Act, or that the appeal has been filed within the time prescribed by s 352(4) of the 1998 Act.
New Evidence
Mr Jamal annexed two documents to the appeal application that were not in evidence before the Arbitrator. The first of the two documents is described as a “certificate” and is dated 10 October 2017. The translation of that document indicates that it was signed and sealed by the Mayor of El Tabbaneh, Lebanon. The Mayor states that Mrs Obeid resides in a house owned by Mr Jamal.
Section 352(6) of the 1998 Act provides that I may admit the document on the appeal only if I am satisfied that the evidence was not available, and could not have been reasonably obtained prior to the proceedings before the Arbitrator or that failure to admit the document would cause substantial injustice in the case.
Mr Jamal’s appeal application does not comply with Practice Direction No 6. As part of that non-compliance, he has not addressed the two alternative threshold questions in s 352(6) and makes no submission as to why this document ought to be admitted on the appeal. The document was clearly in existence prior to the arbitration and there is no reason why Mr Jamal could not have relied on it in the arbitral proceedings. The first threshold question is not satisfied so I must give consideration to the second limb of s 352(6), that is, whether a failure to admit the document would cause a substantial injustice.
In my view, the document could not be described as “compelling” evidence that, if admitted, would be likely to affect the outcome of the case.[2] The evidence has not been tested. Mrs Obeid has not had the opportunity to respond to the assertion in the document. Even if the house in which Mrs Obeid and her family lived was in fact owned by Mr Jamal, Mrs Obeid said in her statement that household rent in the sum of $250 US dollars was included in her outgoings. That fact indicates a commercial arrangement was in place with the owner of the property.
[2] CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501, [27]–[32].
The document has little, if any, bearing on whether Mrs Obeid was dependent on the deceased at the time of his death and does not compete with the evidence adduced in the arbitration proceedings, upon which the Arbitrator based his findings.
The document is not admitted.
The second document, dated 23 October 2017, is titled a “General Power of Attorney” granting Mr Hassan Abdel Kader Jammal the power to represent Mr Jamal in a number of dealings in Australia, including preparing his case and representing him in these proceedings. The document does not purport to be evidence in the case. It is sufficient that the document is noted.
Mr Jamal annexed two further documents to correspondence forwarded in relation to the appeal lodged by Ms Ali Kanj in Ali Kanj v Nonabel Concrete Pty Ltd. Those documents are discussed in my decision in Ms Ali Kanj’s appeal. The documents were not admitted.
If Mr Jamal seeks to rely on the documents in these proceedings, they are not admitted for the same reasons as I have given in that appeal decision.[3]
[3] Ali Kanj v Nonabel, [28]–[34].
Mr Jamal also seeks to tender a Marriage contract dated 15 December 1999 between Ms Ali Kanj and her estranged husband. Given the circumstances in which they separated, the document is not relevant to any issue either before the Arbitrator or raised on this appeal. The document is not admitted.
THE EVIDENCE
Nonabel’s evidence
Nonabel attached to the application a “first contact notification” form provided to Nonabel’s insurer and dated 30 March 2017, giving notice of the injury and death of the deceased. It also annexed correspondence passing between the insurer and Ms Ali Kanj’s legal representatives, indicating the insurer accepted liability and advice that both Ms Ali Kanj and Mrs Obeid intended to make a claim for the lump sum benefit.
At the arbitration, Nonabel also tendered a statement from Mr Hamdan Bilal, the owner of Nonabel. The Arbitrator admitted the statement as “Exhibit A”. Mr Bilal provided a description of the concrete pumping company’s operations and said that he would usually have one worker on site working with him. Mr Bilal said that he had known the deceased for a long time, and that about ten days before the accident, the deceased contacted Mr Bilal’s cousin in relation to job opportunities. Mr Bilal said that about seven days before the accident, he had tested the deceased’s skills for the job and was very happy with the level of his experience. He asked the deceased to start work the following day. Mr Bilal explained what happened in the incident, which he witnessed, and that the deceased was taken to hospital by ambulance.
Ms Ali Kanj’s evidence
Ms Ali Kanj filed the death certificate dated 18 May 2017, which certified that the deceased had died of a head injury on 28 March 2017. The document was annexed to her Reply to Application to Resolve a Dispute (Reply),[4] which was admitted under cover of an Application to Admit Late Documents (AALD) dated 26 May 201[7].
[4] Ms Ali Kanj’s Reply, p 1.
Ms Ali Kanj also filed three additional AALDs, which annexed further evidence in support of her case.
Ms Ali Kanj’s legal representative, Ms Keryn Lee Sim, provided a statement dated 27 November 2017.[5] Ms Sim gave details of action taken by her to assist in ascertaining the existence and whereabouts of other potential dependants.
[5] AALD dated 27 November 2017.
Ms Ali Kanj provided a statement dated 15 November 2017.[6] Ms Ali Kanj described her personal history, which included that she had separated from her husband in 2009 and obtained an Apprehended Domestic Violence Order against him. Her only income was a single parent benefit from Centrelink. She said that when her brother (the deceased) had come to Australia he lived with her and her two children. She stated that she received no support from her former husband, who was serving a gaol sentence.
[6] AALD dated 30 December 2017, pp 4–6.
Ms Ali Kanj stated that her brother, the deceased, came to Australia to visit her on a visitor’s visa, which required her to pay $10,000 as a security bond. The deceased obtained a work health and safety induction card on 20 January 2017 and then was granted a bridging visa, which permitted him to work in Australia. Ms Ali Kanj said the deceased commenced work with Nonabel on 27 March 2017, although that date is at odds with other evidence discussed below and with her further statement that the deceased was injured about a week after commencing employment.
Ms Ali Kanj said that she would drive her brother to work each day. The deceased contributed to her everyday living expenses and her children formed a strong bond with the deceased.
Ms Ali Kanj referred to her parents’ separation, and said that her father, Mr Jamal, abandoned her mother, her siblings and herself. The family had no further contact with him and received no financial assistance from Mr Jamal.
Copies of the various documents referred to by Ms Ali Kanj were annexed to her statement.[7]
[7] AALD dated 30 December 2017, pp 7–25.
Ms Ali Kanj also relied on a number of statements, some in Arabic with certified translations, all annexed to an AALD dated 26 April 2018. Six of those statements were from the deceased’s siblings, who all confirmed that the family had not received any financial assistance from, or been in contact with their father, Mr Jamal.[8]
[8] AALD dated 26 April 2018, pp 2–13.
Ms Joanne Janzerli, a friend of Ms Ali Kanj, gave a statement dated 1 March 2018.[9] She had been Ms Ali Kanj’s friend for seven years and had known the deceased since November 2016, when he first came to Australia. She said the three of them would meet at either her home, Ms Ali Kanj’s home or meet at other meeting places.
[9] AALD dated 26 April 2018, p 1.
Ms Janzerli stated that on many occasions she witnessed the deceased paying for Ms Ali Kanj’s expenses, such as groceries, bills, school uniforms, take away food and petrol. She recalled the deceased saying to Ms Ali Kanj that she was cooking and cleaning for him and driving him around, and that if Ms Ali Kanj needed money she should take it. Ms Janzerli recalled a specific time when the deceased paid for two mobile telephones for Ms Ali Kanj, which he had arranged to be brought from Dubai by Ms Janzerli’s mother.
Ms Janzerli observed that Ms Ali Kanj and the deceased appeared to have a close relationship, that the deceased loved Australia, and he told Ms Janzerli that if anything happened to him, he wanted to be buried in Australia.
Mrs Obeid’s evidence
Mrs Obeid filed a Reply under cover of an AALD, on 12 July 2017. Annexed to the Reply were several documents written in Arabic with certified translations, as follows:
(a) a translated document dated 9 June 2017 extracted from the Lebanese Republic Family Register recording Mr Jamal’s marriage to Mrs Obeid, his marriage to his second wife, and listing the names and dates of birth of his children;[10]
(b) a translated “Certificate of Good Conduct” dated 7 June 2017 provided by the Mayor of Bakhaoun, Lebanon.[11] The document verified that Mrs Obeid and Mr Jamal had been separated for more than twenty years and that Mrs Obeid did not deal with her ex-husband, and
(c) copies of the decisions of Magistrate Sheikh Hamza Checkr (and translations) verifying that Mrs Obeid had filed a lawsuit seeking financial maintenance from Mr Jamal for herself and her children, that Mr Jamal had been restrained from leaving the country so as to avoid liability, and that Mr Jamal was ordered to pay 100,000 LBP per month to Mrs Obeid and 50,000 LBP per month for seven of their children.
[10] Mrs Obeid’s Reply, pp 1–4.
[11] Reply, pp 5–7.
Mrs Obeid provided a signed statement dated 30 August 2017 which was translated into English.[12] The translation was certified.
[12] AALD dated 6 November 2017.
Mrs Obeid confirmed that she married Mr Jamal in 1976 and that they had 11 children together. They separated in 1995, and made a formal separation in 2000. Mrs Obeid further confirmed that Mr Jamal had been ordered to pay financial maintenance to her and for the children, but that they had never received any money from him, nor did she or the children have any dealings with him.
As a consequence, they were very poor and the children were unable to finish their education. She said that she had always been a housewife and that she relied on the deceased for financial assistance, who lived with her until he left for Australia in late 2016.
Mrs Obeid listed some of her living expenses. She said that when the deceased commenced working with Nonabel, he would send her $500 AUD each fortnight and occasionally send money to her daughters, Sari Jamal and Mayada. Mrs Obeid said that she received support from other members of the family, but that the deceased was her main support because he was single and without children.
Mrs Obeid concluded that all of the children should receive some of the lump sum benefit but because Mr Jamal had not given them any support whatsoever, he should not be entitled to a share of that benefit.
Mrs Obeid provided a supplementary statement dated 7 March 2018.[13] She said that the deceased lived in a caravan in Dubai for three years and worked for various periods during that time, when there was work available. She stated that when he had work, the deceased would send her money, usually about $500 per month. She recalled that the deceased had injured his leg while in Dubai and was unable to work for a period. During that time, the deceased relied on financial assistance from his brother. Mrs Obeid clarified that when the deceased first moved to Australia he did not send her money as he was unemployed. She said that once he commenced work, he sent money to her on two occasions. On the first occasion, he sent $300 and on the second he sent $200 through Western Union money transfer. She said that the money was not paid through a bank account so she had no bank records to substantiate the payments.
[13] AALD dated 23 April 2018, pp 11–12.
In a short amendment to her statement, Mrs Obeid said that she does not have a bank account.[14]
[14] AALD dated 23 April 2018, p 17.
Mrs Obeid tendered a document titled “waiver” where Mayada Ali Jamal and Hajar Ali Jamal (two of her children) waived any entitlement to compensation in favour of their mother.[15] In a document titled “Isolation Book”, Mrs Obeid cancelled any power of attorney to act on her behalf that she may have given her daughter Ms Ali Kanj. She stated that Ms Ali Kanj had no right to receive any inheritance or compensation owed to her son, the deceased.[16]
[15] AALD dated 23 April 2018, pp 3–7.
[16] AALD dated 23 April 2018, pp 8–10.
Mrs Obeid’s legal representative also provided a statement to the Commission, explaining procedures she had undertaken to identify further potential dependants and to arrange for separate legal representation for Ms Jamal and Mayada Jamal.
Mr Jamal’s evidence
Mr Jamal filed a Reply dated 30 January 2018 under cover of an AALD of the same date.
In addition to documents already in evidence, Mr Jamal annexed a document to his Reply that was described as a “statement/letter” said to be from “Mr Jamal/ Fadi Foz El Samad,” written in Arabic and translated.[17] The author of the document asserted that the deceased, through love and support for his father, periodically sent money to his father. The author of the document described Mr Jamal as being old, not working and without resources other than the money provided to him by the deceased. The author of the document further listed the siblings of the deceased and their circumstances, notably including Ms Ali Kanj (referred to as Mayssoun Jamal) and describing her and her husband’s circumstances as living and working normally. Relevantly, the author of the document also referred to Ms Jamal as living with her husband in Saudi Arabia.
[17] Mr Jamal’s Reply, pp 20–23.
The author of the document asserted that none of the deceased’s siblings were financially dependent on the deceased. The truth of the document was said to have been certified by the “Mayor”.
A further document, described as a “certificate” was annexed to Mr Jamal’s Reply.[18] Mr Jamal stated that every six months, Mr Fadi Foz El Samad would bring him “living expenses” from the deceased. It appears this document was witnessed by the Mayor of El Tabbaneh, Lebanon.
[18] Mr Jamal’s Reply, p 24.
Mr Jamal provided a statement dated 2 February 2018.[19] He stated that he was retired and without income. He said that the deceased had been working in Dubai before moving to Australia, was single and earning a relatively high income. Mr Jamal said that in his culture, it was common for a retired man to be looked after by his children, and the deceased provided him with financial support sufficient to meet his food, accommodation and other living expenses.
[19] AALD dated 6 February 2018, p 5.
Mr Jamal explained that the money was brought to him by Mr Fadi Foz El Samad every six months for about four years before the accident. He said he had no other means of support, other than minimal support from his other children, who have their own financial obligations. He said that, as far as he understood, none of his children were financially dependent on the deceased.
An email directed to Mr Jamal’s former legal representative from a person by the name of Bassel ElSamad was also in evidence.[20] This email reported that Mr Jamal was 70 years old and unable to work. It said that Mr Jamal lived in small, rented accommodation with his family. Mr El Samad indicated that Mr Jamal told him that Ms Ali Kanj did not take any money from the deceased, and that the deceased only gave money to Mrs Obeid and himself.
[20] AALD dated 6 February 2018, p 1.
Mr Jamal also signed a statutory declaration indicating that none of the children from his second marriage were dependent on the deceased. Rather, the money he received from the deceased helped Mr Jamal to support his family. Mr Jamal said that Mr El Samad worked in Dubai at the same time as the deceased and would bring 6,000 dirhams from the deceased for Mr Jamal every six months.
Ms Jamal’s evidence
Ms Jamal filed a Reply under cover of an AALD dated 2 November 2017. No documents were annexed to the Reply.
Ms Jamal subsequently filed an AALD dated 31 January 2018. Attached to that AALD was a statement signed by her legal representative as to procedural efforts made by the legal representative to ascertain whether there were any other potential dependants of the deceased.
A statement from Ms Jamal was also attached. She advised she resided with her mother in a small village where there was no opportunity for her to obtain employment. She confirmed that her mother, Mrs Obeid, had ceased work approximately seven years ago because of ill health. Ms Jamal further confirmed her mother received financial support from the deceased and that from time to time, the deceased would send Ms Jamal a little money for her to enjoy. When the deceased was living with them, he would help with the tasks in the home.
She said that her brother was a caring person and she was close to him.
Ms Jamal also confirmed that when her father, Ali Jamal, left the home, he did not provide any support for the family or make any contact with any of them.
THE ARBITRATOR’S REASONS
The Arbitrator identified the following issues that remained in dispute which he was required to determine:
(a) who of the respondents and other siblings and half siblings were wholly or partly dependent on the deceased at the date of his death, and
(b) how the lump sum benefit should be apportioned between those that were dependent.
The Arbitrator named each of the deceased’s siblings and listed their ages, and also named the deceased’s half siblings. He noted Mr Jamal’s evidence that none of the half siblings were dependent on the deceased, but that Mr Jamal used the money he received from the deceased to support his family.
The Arbitrator reviewed the evidence before him and summarised the submissions made by the parties. He noted that Ms Ali Kanj, Mrs Obeid and Ms Jamal all submitted that Mr Jamal should not be entitled to any of the lump sum benefit. He further noted that Ms Ali Kanj sought to have the whole of the lump sum benefit paid to her. He summarised Mrs Obeid’s submission that the relationship between the deceased and Ms Ali Kanj was more one of a co-dependency (although did not submit that Ms Ali Kanj was not entitled to a portion of the benefit). The Arbitrator also noted that Mrs Obeid asserted that Ms Jamal’s evidence of dependency was only that she was dependant on Mrs Obeid and not directly dependent on the deceased. The Arbitrator observed that Mrs Obeid conceded that Ms Jamal and Ms Ali Kanj were not disqualified from the apportionment, but that because of their age and marital status, the amount they received should be very much less than the amount determined in her favour.
The Arbitrator referred to Ms Jamal’s challenge that the evidence was insufficient to establish that Mr Jamal was in any way dependent on the deceased and that this submission was supported by Mrs Obeid.
The Arbitrator further noted Ms Jamal’s submissions in respect of Mr Jamal’s evidence that:
(a) the evidence of dependency only asserted financial support of money about every six months;
(b) there is no evidence from Mr Fadi Foz El Samad, although Mr Jamal had his contact details and could have obtained that evidence;
(c) the document purported to be a certificate from the Mayor of the village of Bakhoun was not a certificate of the Mayor but clearly appears to have been written by Mr Jamal, and
(d) that the document has no probative value because the person who applied the seal did not depose to knowledge of the facts asserted in the document.
The Arbitrator accepted that the document had no probative value. He further accepted that the absence of evidence from Mr El Samad was significant.
The Arbitrator found that it was relevant that both Mrs Obeid and Ms Jamal challenged Mr Jamal’s statement that while the deceased was in Dubai, he “earned a relatively high income”. They both gave evidence that there were periods when the deceased did not work when he was in Dubai and that when he was “in the Emirates” he did not work for three years because of his lack of qualifications.
The Arbitrator preferred the evidence of Mrs Obeid and Ms Jamal over that of Mr Jamal. The Arbitrator reasoned that Mr Jamal gave no details of the work the deceased was doing in Dubai and there was no evidence to support his assertions.
The Arbitrator said that it was “quite clear” that Mr Jamal had provided no support to his family, and Mr Jamal did not deny that fact. He noted Mr Jamal’s submission that the fact he had abandoned his family did not determine the issue of dependency. He further noted the submission that the payment of moneys by the deceased was sufficient to establish the fact of dependency.
The Arbitrator further noted Mr Jamal’s submission that, consistent with TNT Group 4 Pty Ltd v Halioris,[21] Mr Jamal had an “expectation of support” from the deceased, which would decrease to a lesser figure after three to five years when the deceased would have probably married. That proposition, Mr Jamal said, would equally apply to Mrs Obeid and Ms Jamal.
[21] (1987) 8 NSWLR 486.
The Arbitrator accepted that Mrs Obeid, Ms Ali Kanj and Ms Jamal all had an expectation of support from the deceased as at the date of his death.
He further accepted the evidence of Ms Ali Kanj that the deceased supported her financially (although in a sense it was a co-dependency) noting that evidence was supported by the evidence of Ms Janzerli. He did not accept, however, that Ms Ali Kanj was the only person who was dependent upon the deceased.
The Arbitrator also accepted that in the light of the invidious position Mrs Obeid was left in after the break-up of her marriage and her poor health, she had a reasonable expectation of support from the deceased when he was in a position to provide it. Although there was no documentary evidence to support the assertion that the deceased provided financial support to her, the evidence given by Ms Ali Kanj and Ms Jamal was consistent with that fact. The Arbitrator accepted that Mrs Obeid was dependent on the deceased.
The Arbitrator found that Ms Jamal was also dependent, although to a lesser extent because the support she received was through the provision of support to her mother.
The Arbitrator did not accept that Mr Jamal had a reasonable expectation of support from the deceased and did not accept that the deceased earned a high income and regularly sent him money. He reasoned that Mr Jamal’s evidence was not corroborated by any evidence from Mr El Samad, when it could have been. He further referred to evidence from other siblings that Mr Jamal had abandoned their family.
The Arbitrator further found that on the basis of:
(a) the absence of any evidence of dependency from the other siblings of the deceased;
(b) Mr Jamal’s evidence was that his children from the second marriage were not dependent, and
(c) the “waiver” from Mayada and Hajar Ali Jamal,
the siblings, other than those who were respondents in the proceedings, were not dependent on the deceased at the time of his death.
The Arbitrator noted the submissions by the parties as to how the lump sum benefit should be apportioned between the dependants. He considered the sum to be apportioned was significant. He said there was little evidence to enable a mathematical calculation of the degree of dependency on the deceased at the time of his death, given the support was in the form of fairly modest and irregular sums of money.
In those circumstances, the Arbitrator formed the view that the most appropriate method to adopt was to apportion a percentage of the whole amount having regard to the reasonable expectation of support by all three dependants. He acknowledged that it was a fairly arbitrary approach, but that it was appropriate because of the state of the evidence and the circumstances in which each of the dependants found themselves.
The Arbitrator determined that in his view, Mrs Obeid was entitled to the majority of the lump sum benefit. He reasoned that she was in reasonably regular receipt of funds from the deceased when he was in employment. In respect of the remaining two dependants, the Arbitrator formed the view that Ms Ali Kanj should be entitled to a greater share than Ms Jamal. The reasons he gave were that Ms Jamal was in receipt of funds from her husband, and although for the six months per year she lived with Mrs Obeid, she lived in fairly poor circumstances. She was also entitled to support from her husband during that time.
The Arbitrator found that on the basis of all of the evidence, the dependants were entitled to the following percentages of the lump sum benefit:
(a) Ms Ali Kanj – 30%;
(b) Mrs Obeid – 60%, and
(c) Ms Jamal – 10%.
The Certificate of Determination issued on 22 May 2018 records:
“The Commission determines:
1. On 28 March 2017 Souhayb Jamal died as a result of an injury arising out of or in the course of his employment with the applicant.
2. Pursuant to section 25 of the Workers Compensation Act 1987 the lump sum death benefit payable by the applicant as a result of the death of the deceased is $765,650.
3. The first respondent, Mayssoun Al Kanj, the second respondent, Fatme Obeid and the fourth respondent, Sari Jamal were in part dependent for support on the deceased at the time of his death.
4. On the evidence before the Commission [the] first respondent, Mayssoun Al Kanj, the second respondent, Fatme Obeid and the fourth respondent, Sari Jamal are the only persons who were dependent for support on the deceased at the time of his death.
5. Pursuant to section 29 of the Workers Compensation Act 1987 the lump sum death benefit is apportioned as follows:
(a) first respondent - $229,695;
(b) second respondent - $459,390; and
(c) fourth respondent - $76,565.
6. The applicant is to pay to the first, second and fourth respondents the sums so apportioned.”
GROUNDS OF APPEAL
Mr Jamal alleges the Arbitrator erred in law by determining the matter contrary to the evidence.
LEGISLATION
Subsection (1)(a) of s 25 of the 1987 Act provides:
“Death of worker leaving dependants (cf former s 8 (1))
(1) If death results from an injury, the amount of compensation payable by the employer under this Act shall be:
(a) the amount of $750,000 (the lump sum death benefit), which 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) paid to the worker's legal personal representative …”
SUBMISSIONS
Mr Jamal’s submissions
Mr Jamal’s submissions are limited to those contained in a one page letter dated 16 June 2018 signed by Hassan Abdel Kader Jammal, to whom Mr Jamal gave a power of attorney.
The contents, however are phrased as though Mr Jamal himself had written the document.
Mr Jamal submits that the Arbitrator erred by accepting Mrs Obeid’s evidence and disregarding his own evidence. Mr Jamal asserts Mrs Obeid is still married to him and lives in a property owned by him and she pays no rent.
Mr Jamal submits that he is the biological father of the deceased and maintains that he was dependent upon the deceased for a “considerable period of time”. Mr Jamal submits that the Arbitrator failed to take into account the family register and the sworn evidence that Mr El Samad brought money to him which was given to Mr El Samad by the deceased.
Mr Jamal maintains that the financial assistance provided to him by the deceased was sufficient to cover all of his expenses, including food, accommodation and general expenses.
Mr Jamal contends that there was no evidence to refute that the deceased was supporting him financially as Mr Jamal was the “father who raised him since he was a child”.[22] He says the deceased was on good terms with his step siblings, as well as his mother and other siblings.
[22] Appeal application; letter of submissions dated 16 June 2018.
Mr Jamal expresses that it is his strong view that the Arbitrator failed to make a fair decision. In a letter dated 3 August 2018, Mr Jamal further asserts the decision to exclude him was unreasonable.
Nonabel’s submissions
Nonabel submits that Mr Jamal has failed to attach submissions dealing with threshold requirements and preliminary issues as required by Practice Direction No 6 and r 16.2 of the Workers Compensation Commission Rules 2011. It submits the appeal documents ought to be rejected.
Nonabel further submits that Mr Jamal has failed to provide a chronology and his appeal has not been certified by a legal practitioner as having reasonable prospects of success. It contends that the appeal ought to be dismissed.
Mrs Obeid’s submissions
On this appeal, Mrs Obeid submits that the Arbitrator’s decision was correct. Alternatively, she submits that the Arbitrator erred in awarding any portion of the lump sum benefit to anyone other than herself.
She says that the Arbitrator’s recital of the evidence, including the biological nature of the relationship between the deceased and Mr Jamal, was accurate.
Mrs Obeid submits that the evidence was vague and contradictory and because of the location of the witnesses, it was not possible to test the evidence by cross examination. There was a conflict in the evidence and the preponderance of the evidence was that the deceased did not have very much money. Given those circumstances, she submits that the Arbitrator did the best that he could.
Mrs Obeid submits that dependency is a question of fact that is usually determined by past experience of support but where that evidence is unreliable, the issue may be resolved by consideration of the probability of a future expectation of support.
Mrs Obeid contends that the Arbitrator was correct in assessing whether there was a realistic expectation of support. She says that fanciful assertions are of no assistance. What is required is an objective assessment of the probability of support.
Mrs Obeid submits that all of the evidence establishes that Mr Jamal abandoned the family in about 1995, leaving her to look after their children in a “co-operative of mutual support” to which he did not contribute.[23]
[23] Mrs Obeid’s submissions, p 1 [7].
Mrs Obeid says that since she became ill in 2011 and up until the date of the deceased’s death, she has been dependent upon each of her children who were in a position to support her financially and to assist her domestically. She submits that at the time of his death, the deceased was in a position to provide her with financial support.
Mrs Obeid submits that by abandoning his obligations to the family and failing to comply with the court orders requiring him to provide financial maintenance to them, Mr Jamal abandoned any expectation of support. Further, it is reasonable to infer that the deceased felt no obligation to provide for Mr Jamal and objectively was unlikely to provide future support, particularly at the expense of his mother and siblings in need.
Mrs Obeid contends that the failure to care for his wife and family over a period of twenty years displaces any presumption in his favour.
Mrs Obeid submits that the word “dependent” connotes more than a simple transfer of money. She relies on a consideration of the meaning of the word by Brereton J (as his Honour then was) in Spata v Tumino; Estate of Gina Spata,[24] where his Honour said that the definition of dependants does not simply mean somebody who in fact was supported by the worker but connotes a “state or condition of being dependent.”[25]
[24] [2017] NSWSC 111 (Spata).
[25] Spata, [60].
Mrs Obeid contends that her expectation of future support was reasonable, and it was unlikely that the deceased would have made any provision for a man who had abandoned him at the age of seven.
Ms Jamal’s submissions
Ms Jamal refers to the letter of 16 June 2018. It appears she is not aware of the document providing a power of attorney to Mr Hassan Jammal and contends that Mr Hassan Jammal is not properly authorised to bring the appeal and make submissions on Mr Jamal’s behalf. Ms Jamal does not concede that the correspondence from Mr Hassam Jammal containing submissions on the appeal should be read as those of Mr Jamal.
In any event, she contends that Mr Jamal does not present any argument that would satisfy the Commission that the Arbitrator fell into error. Ms Jamal says that the submission that the Arbitrator erred by making a decision that was contrary to the evidence is misconceived. She submits that there was, in fact, a lack of acceptable evidence supporting the proposition that while the deceased was in Dubai, he sent money to Mr Jamal.
Ms Jamal refers to the Arbitrator’s reasons[26] at [56] and [111] where the Arbitrator identified the declaration by Mr Jamal that the deceased sent him 6,000 dirhams in cash every six months, and the Arbitrator observed that that evidence was not evidence that the deceased was assisting Mr Jamal financially. Ms Jamal refers to the lack of evidence before the Arbitrator from Mr El Samad, and the lack of explanation for its absence.
[26] Nonabel Concrete Pty Ltd v Ali Kanj (unreported, 22 May 2018, 2125/17) (Reasons).
Ms Jamal submits that it is manifestly apparent that the Arbitrator considered carefully that statutory declaration, as recorded in his reasons at [50]–[57]. Further, she submits that even if Mr Jamal was permitted to adduce new evidence on appeal that he is still married to Mrs Obeid, the Arbitrator had evidence before him with regard to Mrs Obeid’s marital status and referred to that evidence in his reasons at [40]. In any event, the evidence that Mrs Obeid is still Mr Jamal’s wife does not provide a basis for the assertion that the Arbitrator fell into error.
Ms Jamal further refers to Mr Jamal’s assertion that the Arbitrator failed to make a fair decision based on fact and says that is of no assistance in discharging the obligation to establish error on the part of the Arbitrator.
Ms Ali Kanj did not file a Notice of Opposition in respect of Mr Jamal’s appeal.
DISCUSSION
Mr Jamal alleges that the Arbitrator erred in law by failing to take account of his evidence. He submits that the Arbitrator accepted Ms Obeid’s evidence, despite it not having been tested, while the Arbitrator ignored his evidence, without it being tested.
The evidence he maintains was ignored is that:
(a) he is the natural father of the deceased;
(b) he was dependent on the deceased for a considerable period of time;
(c) while the deceased was in Dubai he was assisting his father financially (with money sent through Fady Foz El Samad), and
(d) Mrs Obeid is still his wife.
In circumstances where Mrs Obeid has received no financial or other support from Mr Jamal for over twenty years, whether Mrs Obeid is still married to Mr Jamal has no relevance at all to the question of her dependency on the deceased.
Mr Jamal relies on the traditions of his culture that it is customary for the offspring who are in employment to financially support their elderly parents. It is immaterial that Mr Jamal was the deceased’s natural father, in the circumstances where the family have been estranged with no support from Mr Jamal over such an extended period.
In his findings and reasons, the Arbitrator carefully weighed up the evidence of each of the claimed dependants. He considered the evidence of the document signed by the Mayor of Bakhoun. He found it of no probative value and gave sound reasons for making that finding.
The Arbitrator considered the assertion that Mr Fadi Foz El Salam brought money from the deceased to Mr Jamal during the time the deceased resided in Dubai. It was open to the Arbitrator to find it significant that Mr El Salam did not provide a statement when, in his own statement, Mr Jamal indicated he had the ability to contact Mr El Salam to obtain evidence in support of his case. He did not do so. Further, it was open to the Arbitrator to find it unlikely that the deceased provided the financial support asserted. There was evidence from various family members that the deceased did not work for periods in Dubai and was not “earning a high income”, sufficient to provide the support alleged by Mr Jamal.
Mr Jamal’s evidence before the Arbitrator was uncorroborated by any other evidence. Mr Jamal’s assertions that the deceased supported him financially and would have continued to do so is entirely inconsistent with the evidence of the other siblings as to the relationship between the family and Mr Jamal. It is also inconsistent with the evidence from Mrs Obeid, Ms Jamal and Ms Ali Kanj as to deceased’s ability to provide the moneys alleged.
As the Arbitrator noted, on the other hand, Mrs Obeid’s evidence and Ms Jamal’s evidence supported the evidence of each other, and Ms Ali Kanj’s evidence was supported by the witness Ms Joanne Janzerli.
It was open to the Arbitrator to reject the evidence of Mr Jamal on the basis that it was uncorroborated and contradicted by other evidence. It was also open to the Arbitrator to consider that it was unlikely, in the circumstances, that the deceased would feel an obligation to assist his father.
The onus rests on Mr Jamal to establish there are sufficient grounds to overturn the Arbitrator’s decision.[27] What is required to be shown that the Arbitrator either:
(a) ignored material facts;
(b) made a critical finding of fact which has no basis in the evidence;
(c) showed a demonstrable misunderstanding of relevant evidence, or
(d) demonstrably failed to consider relevant evidence.[28]
[27] Singh v Ginelle Pty Ltd [2010] NSWCA 310, [45], [47] and [50].
[28] Henderson v Foxworth Investments Ltd [2014] UKSC 41; SLT 775; 1 WLR 2600, [67].
The Arbitrator’s finding that Mr Jamal was not dependent on the deceased is a finding of fact made on the basis of an inference drawn from the evidence. Questions of the acceptance of evidence and the weight it is given are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of the evidence that some error must have been involved.[29]
[29] Shellharbour City Council v Rigby [2006] NSWCA 308, [144].
Mr Jamal puts forward no cogent reason why his uncorroborated evidence should be afforded greater weight than the competing evidence. He failed to establish to the Arbitrator’s satisfaction that he was dependent on the deceased.
The mere fact that he is disgruntled by the Arbitrator’s decision is not sufficient to set aside the decision.
The Arbitrator did not ignore material facts nor was there relevant evidence that he failed to consider or that he misunderstood. His findings were based on the evidence that was available to him. The decision discloses no error of law or fact and Mr Jamal’s appeal fails.
DECISION
The Certificate of Determination dated 22 May 2018 is confirmed.
Elizabeth Wood
Deputy President
4 October 2018
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