Jenkins v Cordina Chickens Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jenkins v Cordina Chickens Pty Ltd & Ors [2025] NSWPIC 92
APPLICANT:	Helen Ruth Jenkins
FIRST RESPONDENT:	Cordina Chickens Pty Ltd
SECOND RESPONDENT:	Adam David Jenkins
THIRD RESPONDENT:	Daniel Aaron Jenkins
FOURTH RESPONDENT:	Rebecca Eloise Mackie
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	17 March 2025 Date of amendment: 18 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Claim for interest under section 109 of the Workplace Injury Management and Workers Compensation Act 1998; previous ex-tempore determination of apportionment of lump sum pursuant to section 25(1)(a) of the Workers Compensation Act 1987; Held – interest payable by first respondent at 2% above the cash rate published by the Reserve Bank of Australia from date when claim duly made to date when apportionment orders made; “duly made claim” occurred when each dependant provided full particulars of their claim including the supporting evidence.
DETERMINATIONS MADE:	The Commission determines: 1. Pursuant to s 109 of the Workplace Injury Management andWorkers Compensation Act 1998 the first respondent is to pay interest to the following: (a) Helen Ruth Jenkins, interest on $609,840 from 18 October 2024 at 2% above the cash rate published by the Reserve Bank of Australia, as adjusted from time to time, to 10 December 2024; (b) Adam David Jenkins interest on $87,120 from 8 November 2024 at 2% above the cash rate published by the Reserve Bank of Australia, as adjusted from time to time, to 10 December 2024; (c) Daniel Aaron Jenkins interest on $87,120 from 4 November 2024 at 2% above the cash rate published by the Reserve Bank of Australia, as adjusted from time to time, to 10 December 2024, and (d) Rebecca Eloise Mackie interest on $87,120 from 8 November 2024 at 2% above the cash rate published by the Reserve Bank of Australia, as adjusted from time to time, to 10 December 2024. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Ronald Jenkins was employed by the first respondent, Cordina Chickens Pty Limited when he sustained injury on 24 November 2016. He died on 25 December 2022 and the first respondent’s workers compensation insurer has accepted liability to pay compensation under the Workers Compensation Act 1987 (the 1987 Act) in respect to his death.
The Applicant in these proceedings is the widow of the late Ronald Jenkins. The second, third and fourth respondents are their children.
On 10 December 2024 the matter was before me for a preliminary conference at which time I delivered oral reasons for approving an agreement which had been reached between the parties for apportionment of the lump sum under s 25(1)(a) and s 29 of the 1987 Act. Written ex-tempore orders were issued by the Personal Injury Commission (Commission) to reflect the oral orders made by me.
I ordered that pursuant to s 85A(1)(a) of the 1987 Act, the first respondent was to pay the following amounts to:
(a)   Helen Ruth Jenkins          $609,840;
(b)   Adam David Jenkins         $87,120;
(c)    Daniel Aaron Jenkins       $87,120, and
(d)   Rebecca Eloise Mackie    $87,120.
The parties advised me that they were not in a position then to make submissions in relation to claims for interest at that time and they requested the opportunity to provide written submissions in relation to the same.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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 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 about the payment of interest.
The parties have agreed to the determination of the interest claim without a conference or formal hearing.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application in Respect of Death of Worker (ARDW) dated 18 October 2024 and attached documents;
(b)    Reply lodged by first respondent;
(c)    Reply lodged by second respondent on 8 November 2024;
(d)    Reply lodged by third respondent on 4 November 2024;
(e)    Reply lodged by fourth respondent on 8 November 2024;
(f)    written submissions filed on behalf of the applicant, and
(g)    written submissions filed on behalf of the first respondent.

Oral evidence

There was no oral evidence.

FINDINGS AND REASONS

Section 109 of the Workplace Injury Management and Workers Compensation Act 1998 (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, while the discretion is wide, regard must be held to the facts of the case.
In Haidary v Wandella Pet Foods Pty Ltd,[1] Deputy President Fleming 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).”
[1] [2005] NSWWCCPD, Haidary.
Section 109(2)(b) of the 1998 Act provides that interest cannot be ordered for any period before a claim was duly made.
President Keating said in Kaur v Thales Underwater Systems Pty Ltd[2].
“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.”
[2] [2011] NSWWCCPD 6, Kaur.
“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 36, in which Arbitrator Isaksen, as he then was, referred to the decision of Arbitrator Wynyard, as he then was, in Shanika Cooper v G & W Mudge Concreting Pty Ltd & others (WCC6411/18) and his own decision in Lavelle v David Paul Browne & Ors.[3]
[3] WCC 533/19.
It is possible for the claims of the parties to be “duly made” at different times.
A letter was sent upon behalf of the applicant on 16 August 2023 to the insurer with a notification form and other documents to seek the payment of death benefit.[4] It was stated in the letter that a grant of probate was expected shortly and would be forwarded together with the birth certificate of David Jenkins.
[4] ARDW pp7-27.
On 24 August 2023 the applicant’s solicitor sent to the insurer these additional documents.[5]
[5] ARDW p 28
On 6 September 2023 the first respondent’s solicitors sought particulars about the deceased’s diagnosis of mesothelioma.[6] The particulars were suppled in letter dated
[6] ARDW p 37.
[7] ARDW p 38.
[8] ARDW p 40.
[9] ARDW p 63.
17 October 2023[7] and further information was served on 21 December 2023 about the mesothelioma claim.[8] On 1 February 2024 the applicant’s solicitor sent further documentation to the first respondent.[9]
On 16 August 2024 the first respondent advised the applicant that the insurer had determined that the deceased died in compensable circumstances and they requested that all evidence of dependency and apportionment not previously supplied be provided.[10]
[10] ARDW p 113.
The applicant submits that the issue to be determined by the Commission is when does the interest commence to run. She submits that full particulars of the claim were provided on
16 August 2023. It is submitted that the various statutory declarations /statement attached to the application and various replies were no more than “confirmatory evidence” of the dependency. The applicant seeks the rate of interest of 6.1% from 16 August 2023 to
6 November 2023 and 6.35% from 7 November 2023 to date of payment.
The first respondent’s solicitor has set out in his submissions the steps he took to investigate the matter, particularly in relation to the deceased’s former mesothelioma claim. At [22] he submits that when the application was filed on 18 October 2024 it attached for the first time a statement from the applicant setting out the nature and extent of her dependency. It is also submitted that the third respondent’s reply of 4 November 2024 for the first time provided his statement about dependency and that on 8 November 2024 the second and fourth respondents’ respective replies attached their statements about dependency.
The first respondent submits that the material attached to the letter dated 16 August 2023 was insufficient to “duly make” a claim as the mere notification form does not constitute evidence in support of the fact. At [8] of its submissions reference is made to the Registrar’s Practice Guide for Death Claims that the Commission requires statutory declarations addressing the issue of dependency. It submits that the date that the respective claims were duly made were not until the statements about dependency were provided.
I accept this submission by the first respondent and reject the applicant’s submission that such statements/statutory declarations are merely “confirmatory evidence”. Particularly where adult children are involved the fact that they are children of the deceased does not mean they would be dependent on the deceased for support at the time of his death and, even with the applicant, the nature and extent of her dependency was not revealed until her statement was provided with her application.
I accept the first respondent’s submission that the claims of the dependents were duly made as follows:
(a)    applicant - 18 October 2024;
(b)    second respondent - 8 November 2024;
(c)    third respondent - 4 November 2024; and
(d)    fourth respondent - 8 November 2024.

The first respondent submits that the rate of interest should be the actual rates of interest offered by banks which are consistent with the cash rates published by the Reserve Bank of Australia (RBA), being 4.10% up to 8 November 2023 and 4.35% since. It quotes various decisions of the Commission where 2% above the cash rate applying from time to time was awarded. In [15] of its submissions it submits that interest for each dependent should be no more than 2% above the cash rate.
I accept the first respondent’s submission that, in accordance with several recent determinations of the Commission, the appropriate rate of interest is 2% above the cash rate as published from time to time by the RBA. The applicant’s submission about the rate amounted to the same, when it referenced 6.1% and 6.35%. The payment of interest under
s 109 can only be to the date I ordered payment be made to the respective dependents, that is 10 December 2024.
I therefore determine that interest is payable by the first respondent as follows, to:
(a)   Helen Ruth Jenkins, interest on   $609,840 from 18 October 2024 at 2% above the cash rate published by the Reserve Bank of Australia, as adjusted from time to time, to 10 December 2024;
(b)   Adam David Jenkins interest on $87,120 from 8 November 2024 at 2% above the cash rate published by the Reserve Bank of Australia, as adjusted from time to time, to 10 December 2024;
(c)    Daniel Aaron Jenkins interest on $87,120 from 4 November 2024 at 2% above the cash rate published by the Reserve Bank of Australia, as adjusted from time to time, to 10 December 2024, and
(d)   Rebecca Eloise Mackie interest on $87,120 from 8 November 2024 at 2% above the cash rate published by the Reserve Bank of Australia, as adjusted from time to time, to 10 December 2024.

[2025] NSWPIC 92

17 March 2025 Date of amendment: 18 March 2025