JDC Kitchens Pty Ltd v Negherbon & Anor

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	JDC Kitchens Pty Ltd v Negherbon & Anor [2022] NSWPIC 531
APPLICANT:	JDC Kitchens Pty Ltd
FIRST RESPONDENT:	Carmel Negherbon
SECOND RESPONDENT:	Joshua Negherbon
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	26 September 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for interest on death benefit, apportioned by consent between first and second respondents; consideration of Haidary v Wandella Pet Foods Pty Ltd, Dynamix Pty Ltd and Burrangong Pet Foods Pty Ltd, Pheeney v Doolan; Bennett v Jones & Anor, Kaur v Thales Underwater Systems Pty Ltd, Zhang v Universe Investments Pty Ltd t/as Kings Seafoods, Kratz as Executrix of the Estate of the Late Owen Beddall v Qantas Airways Limited, Cameron v StateCover Mutual, Riverdene Equine Hospital Pty Ltd v Tupani, Cameron v Enviro Pallets Pty Ltd; Held – lump sum benefit apportioned in accordance with agreement between first and second respondents; award of interest on lump sum from 27 July 2022 when claim duly made to 8 August 2022 when orders made at a rate 2% above the relevant Reserve Bank of Australia cash rate.
determinations made:	That the applicant is to pay interest, pursuant to s 109(1) of the Workplace Injury Management and Workers Compensation Act 1998, on the lump sum death benefit at the rate of 3.35% per annum from 27 July 2022 to 2 August 2022; and at the rate of 3.85% per annum from 3 August 2022 to 8 August 2022, apportioned in the same proportions as the lump sum.

BACKGROUND

The worker, John Negherbon, was employed by the applicant, JDC Kitchens Pty Ltd, as a kitchen installer. He was killed in a motor vehicle accident on 10 April 2018, while in the course of his employment.
The first respondent, Ms Carmel Negherbon (Ms Negherbon), is the widow of the worker. On 31 March 2021, she signed an iCare Notification Form (the claim form), in which she notified a claim in respect of the worker’s death. The claim form was signed by her solicitor on 6 April 2021 and emailed to iCare and EML on the same day.
By letter dated 9 November 2021, the applicant’s solicitors requested information and documents from the first respondent’s solicitors, to allow them to determine the claim.
On 2 December 2021, the first respondent’s solicitors emailed the applicant’s solicitors, responding to their letter dated 9 November 2021.
By letter dated 28 April 2022, the applicant’s solicitors forwarded to the first respondent’s solicitors a letter from iCare dated 22 April 2022, which advised that liability for the claim had been accepted.
The first respondent’s solicitors were requested to provide information including whether there were other potential dependants. The applicant’s solicitors requested that they advise whether Ms Negherbon requested that the applicant should immediately make payment to the NSW Trustee and Guardian, pursuant to s 85(1)(a) of the Workers Compensation Act 1987 (the 1987 Act) or should refrain from doing so for the time being, pending an order being obtained pursuant to s 85A(1)(a) of the 1987 Act that the sum be paid direct to her.
The applicant’s solicitors advised that, if the first respondent requested that it refrain from making payment to the NSW Trustee and Guardian, they would commence proceedings in the Personal Injury Commission (the Commission), once Ms Negherbon had provided the particulars requested in relation to dependency.
By letter dated 2 June 2022, the first respondent’s solicitors apologised for their late reply to the request for particulars, advising that they thought they had previously been provided. They requested that the applicant refrain from making payment to the NSW Trustee and Guardian, pending an order pursuant to s 85A(1)(a) of the 1987 Act being obtained.
The first respondent’s solicitors advised that the worker’s parents had pre-deceased him, and he had been an only child. They enclosed details of the funeral expenses, which had been paid by Ms Negherbon.
By letter dated 6 June 2022, the applicant’s solicitors advised the first respondent’s solicitors that they would file an application with the Commission to obtain the determination and orders necessary to enable payment of the lump sum pursuant to s 25(1)(a) of the 1987 Act. They reminded the first respondent’s solicitors of the requirements that each dependant be separately represented and file a Reply that included a statement outlining the basis upon which dependency was alleged, for the purpose of an order under s 29 of the 1987 Act apportioning the lump sum.
The applicant lodged an Application in Respect of Death of Worker (the Application) on 6 June 2022. It named Ms Negherbon as the first respondent, and Mr Joshua Negherbon (Mr Negherbon), her and the worker’s son, as the second respondent. The Application attached a copy of the worker’s death certificate; the couples’ certificate of marriage; and the second respondent’s birth certificate.
The second respondent lodged his Reply on 29 June 2022. It attached his statement dated 28 June 2022.
The first respondent lodged her Reply on 30 June 2022. It attached her statement dated 29 June 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issue remained to be determined:
(a) whether the first and second respondents are entitled to payment 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 COMMISSION

The matter was listed for telephone conference before me on 6 July 2022. Mr Harris appeared for the applicant; Mr Brown of counsel, instructed by Mr Piperides, appeared for the first respondent; and Ms Abicic appeared for the second respondent. Mr Payne of EML and Ms Dean of iCare also attended.
I was advised that a further potential dependant, the worker’s nephew, had been identified. The first respondent advised that she had spoken to him, and he had said he was not making a claim, but she had no documentation from him.
The first respondent was directed that, on or before 20 July 2022, she was to file and serve an Application to Admit Late Documents, attaching a statutory declaration from the worker’s nephew, or his mother, as it had been suggested he may lack capacity to swear a declaration. The statutory declaration was to reflect the position of the worker’s nephew in respect of the proceedings.
Should the potential dependant refuse or be unable to provide a statutory declaration, a statutory declaration by an appropriate person providing that information was to be filed and served by 20 July 2022.
The matter was listed for further telephone conference before me on 8 August 2022. Mr Harris appeared for the applicant; Mr Brown of counsel, instructed by Mr Piperides, appeared for the first respondent; and Mr Malouf of counsel, instructed by Ms Abicic, appeared for the second respondent. Mr Payne was present.
The first respondent had filed with the Commission an Application to Admit Late Documents dated 27 July 2022. It attached statutory declarations from both the worker’s nephew and his mother confirming that the nephew made no claim to have been dependent on the worker.
In the circumstances, I was satisfied that, there being no other persons dependent for support on the worker at the date of his death, it was appropriate to make findings and orders for apportionment of the death benefit in accordance with the agreement of the first and second respondents.
The parties were unable to agree with respect to the claim for interest on the death benefit. Directions were made for written submissions to be provided, and the parties were advised that, at the conclusion of the time for submissions, the remaining issue would be determined “on the papers”.
The parties have provided written submissions in accordance with my direction.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application and attachments;
(b)    Reply by first respondent and attachments;
(c)    Reply by second respondent and attachments, and
(d)    Application to Admit Late Documents dated 27 July 2022, and attachments, filed by the first respondent.

FINDINGS AND REASONS

Submissions
First respondent

The first respondent submitted that she made a claim for interest pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The section grants the Commission the power to award interest at such rate as it thinks fit on the whole or any part of the lump sum, for the whole or any part of the period before it is payable.
The first respondent submitted that pursuant to s 109(2) of the 1998 Act, interest cannot be awarded on any compensation payable under Division 4 of Part 3 of the 1987 Act (which is not relevant to these proceedings); before the claim was duly made (s 109(2)(b)); or for any period during which proceedings were adjourned on the application of the claimant, or pursuant to s 102 of the 1998 Act (s 109(2)(c)).
The first respondent cited Healey v McPherson Binding Pty Ltd (1989) 5 NSWCCR 139, as authority that interest is to compensate the party who is entitled to but has not had the benefit of the amount in dispute, as distinct from penalising the employer.
The first respondent submitted that interest should be awarded from 6 April 2021, the date that the claim was formally lodged with iCare, until 8 August 2022, the date of apportionment of the lump sum.
In making this submission, the first respondent drew attention to the claim form, which she submitted was completed in detail, including details of all dependants found by the Commission to have been dependent on the worker at the date of his death, and full particulars of the circumstances of his death.
The first respondent submitted that the applicant did not request any particulars of the claim until 9 November 2021, in excess of seven months after the claim was duly made. Her solicitors provided a response reasonably expeditiously, on 2 December 2021. (Emphasis in original).
The first respondent submitted that liability was not accepted until 22 April 2022, a period of one year and 16 days from the date the claim was made and a period of four months and 20 days from the date that further particulars were provided. (Emphasis in original).
The first respondent submitted that while the award of interest is discretionary, there was no reasonable explanation for the delay that would weigh against granting interest. The applicant was provided with sufficient particulars, and she and the second respondent were deprived of the benefit of the funds for a significant period. She conceded that interest should not be awarded prior to 6 April 2021, as the claim had not been duly made before that date (s 109(2)(b)).
Consistent with the decision in The Chop Shop Australia Pty Ltd v Tiffany Turner & Ors (The Chop Shop) [2015] NSWWCC 313, the first respondent submitted that interest should be awarded at 4% above the average cash rate published by the Reserve Bank of Australia (RBA) during the relevant period. The cash rate as at 6 April 2021 was 0.10% and as at the date of apportionment it was 1.85%. As it did not increase until 4 May 2022, the first respondent submitted that the appropriate rate is 4.75% (being 4% above 0.75%).
The first respondent submitted that the approach in The Chop Shop is consistent with the approach taken in Haidary v Wandella Pet Foods Pty Ltd [2005] NSWWCCPD 9 (Haidary), which provides that the appropriate interest rate is the Supreme Court rate. Pursuant to Supreme Court Practice Note Gen 16, this is 4% above the cash rate.
The first respondent finally submitted that interest should be apportioned in accordance with the apportionment of the lump sum.

Second respondent

The second respondent joined the applicant in seeking an order that the applicant must pay to the respondents their entitlement to interest on the lump sum.
The second respondent made a claim for interest pursuant to s 109 of the 1998 Act. He submitted that interest is payable from the date sufficient particulars were provided to pay the death benefit, the insurer having had the benefit of it since that time.
The second respondent submitted that interest should run from the date the claim was first made on the applicant, apportioned between the dependants pursuant to the apportionment of the death benefit.
The second respondent adopted the first respondent’s submissions in relation to interest.
In addition, the second respondent submitted that at the conciliation/arbitration [sic] of the matter, the applicant submitted that a claim for lump sum compensation was only duly made on 29 June 2022, which is “simply incorrect”.
The second respondent submitted the claim was duly made on 6 April 2021. The claim form is “an iCare created document”. Having been completed accurately and entirely, it must have duly notified the insurer of the claim. If it did not, he submitted iCare has created and requires the use of an inaccurate document to be completed for this purpose. “On that basis alone”, the applicant was aware of all particulars it required from 6 April 2021.
The second respondent finally submitted that interest should be paid from 6 April 2021 to when the death benefit is paid, at the rate of 4.1% per annum, apportioned pro rata to the lump sum.

Applicant

The applicant submitted that no interest should be ordered; or in the alternative, if it is determined that interest should be ordered, it should be at the rate of 3.35% per annum from 27 July 2022 to 2 August 2022; and at the rate of 3.85% per annum from 2 August 2022 to 8 August 2022.
The applicant submitted the following dates are relevant:
(a)     10 April 2018 – date of death;
(b)     6 April 2021 – notification submitted to insurer;
(c)     9 November 2021 – particulars requested on behalf of insurer;
(d)     2 December 2021 – some particulars provided to insurer;
(e)     22 April 2022 – liability accepted by insurer;
(f)      2 June 2022 – some further particulars provided to insurer;
(g)     7 June 2022 – Application registered;
(h)     29 June 2022 – Reply by second respondent, with statement dated 28 June 2022, filed and served;
(i)      1 July 2022 – Reply by first respondent, with statement dated 29 June 2022, filed and served;
(j)      6 July 2022 – teleconference, adjourned to 8 August 2022 to enable filing of further evidence in relation to dependency;
(k)     6 July 2022 – direction issued in relation to the provision of further evidence in relation to dependency;
(l)      27 July 2022 – Application to Admit Late Documents filed by first respondent attaching further evidence in relation to dependency;
(m)    8 August 2022 – second teleconference;
(n)     8 August 2022 – Certificate of Determination (COD) ordering payments to the respondents of the lump sum under s 25(1)(a) of the 1987 Act, and
(o)     10 August 2022 – payment to the respondents of their respective shares of the lump sum.
The applicant submitted that the Commission’s power to award interest is discretionary – Haidary; Canham v Kenna Investments Pty Ltd [2006] NSWWCCPD 2020; and Kaur v Thales Underwater Systems Pty Ltd [2011] NSWWCCPD 6 (Kaur). The claim in Haidary was one for weekly compensation, so there was no legal impediment to the immediate payment of the compensation.
The applicant referred to the decision of the Court of Appeal in Pheeney v Doolan [1977] 1 NSWLR 601 (Pheeney), in which the court considered a claim for interest under s 94 of the Supreme Court Act 1970. It held it was necessary to determine in what respect the plaintiff had been financially disadvantaged by the delay in payment of damages, so as to make an appropriate allowance for interest.
The applicant also referred to the Court of Appeal decision in Bennett v Jones & Anor [1977] 2 NSWLR 355 (Bennett), in which it considered in detail the nature of the discretion to order interest under s 94 of the Supreme Court Act 1970.
The applicant submitted that it is of most significance to the exercise of the discretion under s 109 of the 1998 Act that, having regard to ss 85(1)(a) and 85A(1)(a) of the 1987 Act, it was not legally possibly for it to pay any part of the lump sum until 8 August 2022. That was when the Commission made a determination of those persons who were dependent for support on the worker; a determination apportioning the lump sum between those dependants; and orders for the payment direct to each respondent, consistent with that apportionment.
While it would have been possible for the applicant to immediately pay the lump sum to the NSW Trustee and Guardian, the applicant submitted that, by letter dated 2 June 2022, the first respondent’s solicitors requested that it not be paid until an order had been made pursuant to s 85A(1)(a) of the 1987 Act. Even if the lump sum had been paid immediately to the NSW Trustee and Guardian, no payment would have been made to either respondent until the determination by the Commission of dependency and apportionment, which did not occur until the COD was issued on 8 August 2022.
The applicant submitted that, having regard to Haidary, and the decisions in Pheeney and Bennett, the respondents have not suffered a “loss of his or her income”. Had the lump sum been paid to the NSW Trustee and Guardian, the fees imposed would have been to their financial detriment.
The applicant submitted that the fact that the person entitled to compensation has not had the use of it is not significant in claims arising out of the death of a worker, unlike other claims. The reason is that, had the lump sum been paid immediately to the NSW Trustee and Guardian, the person entitled to the compensation would not have received its benefit from the date of payment, or at all.
The applicant submitted it is common knowledge that the charges imposed by the NSW Trustee and Guardian would have far exceeded any interest that would have accrued on the lump sum; no payment would have been made before the COD was issued; and the sums ordered to be paid in the COD dated 8 August 2022 were paid on 10 August 2022. It is inconceivable that, had payment been made to the NSW Trustee and Guardian, the respondents would have received their shares by 10 August 2022.
The applicant submitted that the respondents have received a financial advantage as a result of the sums not being paid until the issue of the COD. The entirely logical request made on behalf of the first respondent, and by inference the second respondent, that the lump sum not be paid to the NSW Trustee and Guardian is a significant factor that weighs heavily against exercising the discretion to order payment of interest.
The applicant submitted that the respondents’ submissions ignore these considerations, which are peculiar to claims arising out of the death of a worker, and the fact that no person entitled to a share of the lump sum would have benefited financially had the payment been made earlier; and immediate payment to the NSW Trustee and Guardian would have been to their financial detriment.
The applicant submitted that this approach was effectively rejected by Member Batchelor in Zhang v Universe Investments Pty Ltd t/as Kings Seafoods [2021] NSWPIC 128 (Zhang), when he said:
“The first respondent submits that despite the denial of liability, had the lump sum been paid immediately to the NSW Trustee, no payment would have been made to any dependant until the determination on liability, dependency and apportionment followed by the order(s) for payment. That is correct. However in my view the first respondent’s insurer was at liberty to pay the NSW Trustee the lump sum benefit once it became clear that the applicant and second and third respondents were at least partially dependent for support on the deceased at the time of his death. This would ensure that the insurer did not have the use of the compensation pending the determination of liability, dependency and apportionment. Alternatively, if the insurer did not adopt that course, it could agree to, or in default thereof should be ordered to pay, interest on the parts of the lump sum death benefit apportioned to the applicant and first and second respondent from the time that particulars of their dependency were supplied.”

The applicant submitted that Member Batchelor was incorrect, as the decision overlooks that, had the lump sum been paid to the NSW Trustee and Guardian, the fees would in all likelihood have considerably exceeded any entitlement to interest; and no sum would have been paid to either respondent prior to the issue of the COD. The first respondent clearly recognised this in requesting that the lump sum not be paid until an order had been made by the Commission that it be paid direct to the respondents.
The applicant therefore submitted that, in the exercise of its discretion under s 109 of the 1998 Act, the Commission should decline to order interest.
The applicant submitted that, furthermore, s 109(1)(c) of the 1998 Act precludes an order for payment of interest “for any period during which proceedings were adjourned on the application of the claimant for the compensation”. It submitted the first teleconference on 6 July 2022 was adjourned because of the outstanding issues of dependency, which constituted an adjournment on the respondents’ application. The outstanding particulars were not provided until 27 July 2022, and it follows that s 109(1)(c) precludes an order for payment of interest in any event, and quite apart from the other considerations outlined.
In the alternative, the applicant submitted that if it is determined that interest should be ordered, the remaining issues are the period/s that should be the subject of an order for interest; and the rate/s at which it should be ordered.
With respect to the period/s during which interest should be paid, the applicant submitted that, in accordance with s 109(1), interest can only be ordered up to the date “before the sum is payable”, which is the date of the COD. Any entitlement to interest between the date of the COD and the date of payment is governed by s 110 of the 1998 Act.
In accordance with s 109(2)(b) of the 1998 Act, the applicant submitted that interest cannot be ordered before a claim for the compensation was duly made; and it is well-established that a claim by a dependant is not “duly made” until full particulars of the alleged dependency have been provided.
The applicant submitted that the respondent’s submissions are inconsistent with the clear statement of opinion by President Keating in Kaur.
The applicant also referred to the decisions of Arbitrator Wynyard in Cooper v G & W Mudge Concreting Pty Ltd & Ors in Matter Number 6411/18, dated 18 September 2019; Arbitrator Isaksen in Lavelle v Browne & Ors, in Matter Number 533/19, dated 10 October 2019; Arbitrator Harris in Alexander v JB Cullinan & NN Cullinan & Ors, in Matter Number 4832/20, dated 30 November 2020; Arbitrator Beilby in Lindsay v City Clean Payroll Pty Ltd (Lindsay), in Matter Number 6364/20, dated 14 January 2021; Arbitrator Toohey in A1 Arbor Tree Service Pty Ltd v Matai & Ors (A1 Arbor), in Matter Number 2123/20, dated 19 February 2021; Member Wynyard in Mudgee Explorer Tours Pty Ltd v Clarke (Clarke) [2021] NSWPIC 41; and Senior Member Capel in Youseph v Homebush Unit Trust t/as Primo Smallgoods [2021] NSWPIC 299 (Youseph).
The applicant submitted that the respondents’ submissions that interest should be ordered from the date of the notification and claim form is inconsistent with the numerous decisions above and with the decision in Kaur, which is binding.
The applicant submitted that the claim was not “duly made” until 27 July 2022, when the Application to Admit Late Documents attaching the final evidence in relation to dependency was served.
It follows that, in the event it is determined that an order for interest should be made, it should not be ordered to be paid prior to 27 July 2022. Particulars of dependency were requested as early as 9 November 2021. Notwithstanding the email of 2 December 2021 and the letter dated 2 June 2022, final particulars were not provided until 27 July 2022.
With respect to the rate at which interest should be ordered, the applicant submitted that the respondents’ claims ignore the consistent approach by the Commission in recent years to order interest at a rate consistent with the recent very low rates of interest.
The applicant submitted that, while the Supreme Court pre-judgment interest rate, currently 4.85%, has been and remains higher than bank interest rates, the exercise of discretion in accordance with s 109(1) of the 1998 Act requires the Commission to have regard to the actual rates offered by banks. They have at all relevant times been significantly less and consistent with the cash rates published by the RBA.
The applicant submitted this is consistent with the approach by Arbitrator Batchelor in Cameron v StateCover Mutual [2015] NSWWCC 325, in which he awarded interest at 4% per annum for a period during which the Supreme Court rate ranged from 7.5% per annum to 6.5% per annum; and in Riverdene Equine Hospital Pty Ltd v Tupani [2015] NSWWCC 240, in which he awarded interest at 4% per annum for a period during which the Supreme Court rate ranged from 6.5% to 6%. These decisions were issued at a time when interest rates offered by banks on deposits were considerably greater than at present.
The applicant referred to more recent matters in which interest has been awarded at a lower rate, including Cameron v Enviro Pallets Pty Ltd, in Matter Number 2070/20 (interest awarded at a rate 2% above the cash rate); Baroudi v Kelly Services Pty Ltd in Matter Number 5220/19 (interest awarded at the rate of 2%); Baldwin v Fleetmaster Services Pty Ltd in Matter Number 1648/20 (interest awarded at the rate of 2%); Talar v Opera Australia, in Matter Number 4763/20 (interest awarded at the rate of 2.25%); Lindsay (interest awarded at the rate of 2.25%); A1 Arbor (interest awarded at the rate of 2%); Clarke (interest awarded at the rate of 2%); Zhang (interest awarded at the rate of 2.5%); Youseph (interest awarded at the rate of 2.5%); JV Jupp Pty Ltd v Fraiter, in Matter Number 5947/21 (interest awarded at the rate of 2.5%); ZKM Pty Ltd v Chen, on 17 March 2022 (interest awarded at 2% above the RBA cash rate); and McGrath v PM Electric Pty Ltd & Ors [2022] NSWPIC 263 (interest awarded at the rate of 2.1%).
The applicant referred to the RBA published cash rate during the period from 4 November 2020 to date, when it has varied from 0.10% to the current 1.85%. It submitted that, if the Commission awards interest, it should be at the rate of 2% above the cash rate during the relevant period.
The applicant finally submitted that the claim for interest should be dismissed because, in the exercise of its discretion, the Commission should have regard to the paramount consideration, that the respondents have not suffered any financial disadvantage by delay in receipt of the lump sum; and in any event, an order for payment of interest would be contrary to s 109(2)(c) of the 1998 Act.

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.”
The power to award interest is discretionary and may apply to some or all of the compensation payable, for the entire period, from the date of the claim to the date of the order, or for a lesser period. The rate of interest is also a discretionary matter. However, whilst the discretion is wide, regard must be had to the facts of the case.
In Haidary, Deputy President Fleming discussed the reasoning behind an award of interest and the relevant interest rate. She 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 likely amount of interest that would be due on these sums is small, relative to the whole of his claim, but nonetheless they may form part of Mr Haidary’s entitlement. 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 (1990) 6 NSWCCR; Healey v McPherson Binding Pty Ltd (1989) 5 NSWCCR 139).”
Neither respondent has referred me to the decision in Kaur, which, as the applicant submitted, is binding authority.
In Kaur, Keating P 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 compensation on behalf of the appellants 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”.
The phrase “duly made” has been held to mean “fully particularised”. It was applied in Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited [2020] NSWWCC (Kratz), in which Arbitrator Isaksen referred to the decision of Arbitrator Wynyard in Cooper and his own decision in Lavelle, in which he agreed with Arbitrator Wynyard’s approach. Member Wynyard took a similar approach in Clarke.
In Kratz, Arbitrator Isaksen held that the claim was not fully particularised until the filing of evidence that addressed the issue of dependency and the possibility that the worker’s birth mother may have a claim, which occurred eight days before the arbitration hearing. I regard this matter as analogous to Kratz.
I do not accept the submission that the claim was “duly made” on 6 April 2021. The claim form did no more than advise the insurer that the first respondent was making a claim for the death benefit. She provided the name, address and contact number of the second respondent as another person who was financially dependent on the worker. There is no reference to the worker’s nephew, who was later stated to be a potential claimant.
The applicant requested further particulars of the claim on 9 November 2021. Those particulars included details, including the basis of the alleged dependency, of each person who was dependent for support on the worker.
The first respondent submitted that it was seven months after the claim was “duly made” [sic] that particulars were requested. I do not believe that is relevant to the exercise of my discretion. It was open to the first or second respondent to file an application in the Commission at any time after submission of the claim form, if they believed the claim had been duly made, in the sense of being fully particularised.
The possibility that the worker’s nephew may have had a claim to have been dependent on him for support was raised for the first time at the telephone conference on 6 July 2022. The existence of another potential claimant must have been within the respondents’ knowledge. Had that matter been raised previously, and appropriate evidence been filed, orders for apportionment and payment of the death benefit could have been made at that time.
A direction was made on 6 July 2022 that evidence regarding the potential dependency of the worker’s nephew was to be filed and served on or before 20 July 2022. The evidence was filed and served on 27 July 2022. In my view, that is the date on which the claim was “duly made”.

In my view, the period in respect of which the respondents may be entitled to interest on the lump sum would be limited to the period from 27 July 2022, when the claim was duly made, to 8 August 2022, when the COD was issued. I do not accept the submission that interest would be payable to the date that the payment was made, which is contrary to the clear wording of s 109(1) of the 1998 Act.
As I have noted, I regard this matter as analogous to Kratz, in which Arbitrator Isaksen declined to order interest. The claim in this matter was “duly made” slightly earlier than was the case in Kratz.
In the circumstances, and in the exercise of my discretion, I will order that the applicant pay interest on the lump sum for the period from 27 July 2022 to 8 August 2022.
As regards the rate of interest, the Commission is to award interest at “such rate as the Commission thinks fit”. It is not bound to award interest at Supreme Court rates.
The applicant has referred to several decisions at Arbitral or Member level in which interest has been awarded at rates lower than the rate that would be awarded in the Supreme Court. In my view, the appropriate rate is, as held in several of those decisions, 2% above the RBA cash rate.
I therefore award interest on the lump sum at the rate of 3.35% per annum from 27 July 2022 to 2 August 2022; and at 3.85% per annum from 3 August 2022 to 8 August 2022, apportioned in the same proportions as the lump sum.
The determinations and orders are as set out in the COD.

[2022] NSWPIC 531

26 September 2022