Jamal v Nonabel Concrete Pty Ltd - [2018] NSWWCCPD 42

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWWCCPD 42
Decision Date: 4 October 2018

CaseChat Overview and Summary

The matter involved a dispute between Jamal, the appellant, and Nonabel Concrete Pty Ltd, the respondent. The issue was whether the appellant was dependent on the deceased worker, Mr. Ibrahim, for the purposes of claiming compensation under section 25(1)(a) of the Workers Compensation Act 1987. The dispute was heard in the Supreme Court of New South Wales. The appellant claimed that he was dependent on the deceased, while the respondent argued that the appellant was not dependent on the deceased and thus not entitled to compensation.

The court had to decide whether there was an error of fact in the determination made by the Workers Compensation Commission, which found that the appellant was not dependent on the deceased. The court examined the evidence presented before the Commission and the applicable legal principles. The court held that the Commission had not erred in finding that the appellant was not dependent on the deceased, as the evidence did not support a finding of dependency. The court found that the appellant had not established that he was wholly or substantially dependent on the deceased for support, as required by section 25(1)(a) of the Act.

In light of the above, the court confirmed the Certificate of Determination dated 22 May 2018, which found that the appellant was not dependent on the deceased. The court rejected the appellant's argument that there was an error of fact in the determination made by the Commission. The court held that the Commission's finding was supported by the evidence and that the appellant had not established that he was entitled to compensation under section 25(1)(a) of the Act. The court's decision was final and binding, and the appellant's appeal was dismissed.

Orders

Orders of the court

1. The Certificate of Determination dated 22 May 2018 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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