Kaur v Thales Underwater Systems Pty Ltd
[2011] NSWWCCPD 6
•4 February 2011
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Kaur v Thales Underwater Systems Pty Ltd [2011] NSWWCCPD 6 | ||||
| FIRST APPELLANT: | Gurmeet Kaur | ||||
| SECOND APPELLANT: | Babaljeet Kaur | ||||
| FIRST RESPONDENT: | Thales Underwater Systems Pty Ltd | ||||
| SECOND RESPONDENT: | Harbendar Kaur Gurden Singh | ||||
| THIRD RESPONDENT: | Darveen Kaur Sandhu | ||||
| FOURTH RESPONDENT: | Rashveen Kaur Sandhu | ||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | ||||
| FILE NUMBER: | A1-4473/10 | ||||
| ARBITRATOR: | Mr P Sweeney | ||||
| DATE OF ARBITRATOR’S DECISION: | 10 November 2010 | ||||
| DATE OF APPEAL DECISION: | 4 February 2011 | ||||
| SUBJECT MATTER OF DECISION: | Sections 25 and 26 of the Workers Compensation Act 1987; apportionment between dependants of deceased worker; s 109 of the Workplace Injury Management and Workers Compensation Act 1998, discretion to apportion interest | ||||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellants: | Paramount Lawyers | |||
| First Respondent: | Sparke Helmore Lawyers | ||||
| Second, Third & Fourth Respondents: | Brydens Law Office | ||||
ORDERS MADE ON APPEAL: | The orders in paragraphs 1(a), (b) and (c) of the Arbitrator’s determination of 10 November 2010 are unchanged. However, for clarity and simplicity, the whole of paragraph 1 and paragraph 3 of the Arbitrator’s determination of 10 November 2010 are revoked and the following orders are made: 1. Pursuant to s 29 of the Workers Compensation Act 1987, the compensation paid by the first respondent to the Public Trustee shall be apportioned as follows: (a) Gurmeet Kaur $ 35,000 1(A). All interest accrued from the investment of the lump sum since 17 June 2008 be distributed between the abovementioned dependants on a pro rata basis according to their proportionate entitlement to the lump sum. 1(B). Leave is granted to the parties to re-apply in the event that further orders are required to give effect to the decision in respect of interest. 3. The first respondent is to pay the costs of the applicants and the second and fourth respondents. All other Orders in the Certificate of Determination are confirmed. The first respondent is to pay the costs of the first and second appellants and the second, third and fourth respondents to the appeal. | ||||
BACKGROUND TO THE APPEAL
Tek Singh Dhillon (the deceased worker) was employed by the first respondent, Thales Underwater Systems Pty Ltd (Thales), as an electrician. On 20 December 2005, the deceased worker was a pedestrian crossing Victoria Road at Rydalmere when he was struck by a motor vehicle and fatally injured. At the time of his death, the deceased worker was 57 years of age.
The first respondent to the appeal, Thales, does not dispute that the dependants of the deceased are entitled to compensation pursuant to s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act).
The dispute before the Commission concerned the apportionment of the lump sum compensation between a number of the deceased worker’s alleged dependants.
The deceased worker was first married to Narindar Kaur on a date which is not disclosed by the evidence. There were three children to that marriage: Karamjit, born in 1972; Ajit, born in 1973; and Harjit, born in 1980. None of these persons claims to be dependent on the deceased worker and none has made a claim for workers compensation benefits.
After divorcing his first wife, the deceased worker married Gurmeet Kaur on 20 April 1997. At the time of their marriage, Gurmeet Kaur had two daughters. Gurdeep Kaur, a daughter from a previous marriage, was born in 1984, and Babaljeet, who was the deceased’s daughter, was born in 1991.
The marriage to Gurmeet Kaur was dissolved on 24 February 2004. A decree nisi of the Federal Magistrates Court of Australia became absolute on that date.
On 10 December 2005, the deceased worker married Harbendar Kaur Gurden Singh, who was born in 1963. Harbendar was a citizen of Malaysia. She had two daughters: Darveen, who was born in April 1990; and Rashveen, who was born in July 1991. The children were aged respectively 15 and 14 at the date of the deceased worker’s death.
On 8 March 2006, Brydens Law Office, on behalf of Harbendar Kaur Gurden Singh, lodged a claim pursuant to ss 25 and 26 of the 1987 Act. Various exchanges of correspondence then took place throughout March 2006 between Brydens and Ellison Tillyard Callanan, representing the interests of Thales.
On 31 March 2008, Brydens made a further claim pursuant to s 25(1)(b) for weekly payments in respect of the two dependent step-children, Darveen and Rashveen Kaur Sandhu.
On 17 June 2008, Thales admitted liability for the lump sum and the claim for weekly payments and paid into the Public Trustee the sum of $307,100, being the maximum sum payable to the dependants of the deceased, subject to apportionment of the sum under s 29 of the1987 Act.
On 25 June 2008, the Public Trustee wrote to Brydens Law Office, recommending that an application be made to this Commission for orders in respect of the apportionment of the lump sum.
On 28 August 2009, Brydens wrote to Byles Canceri Lawyers, who were then representing Gurmeet and Babaljeet, raising the prospect of an entitlement by Babaljeet to compensation in respect of the worker’s death.
On 2 June 2010, Harbendar Kaur Gurden Singh lodged with the Commission an Application in Respect of the Death of a Worker on behalf of herself and her daughters, Darveen and Rashveen. She sought apportionment of the lump sum between herself and the deceased worker’s two step-daughters. She nominated Babaljeet Kaur as another person who may be dependent for support upon the deceased worker.
The matter was listed before Arbitrator Sweeney for a telephone conference on 8 July 2010. On 9 July 2010, Arbitrator Sweeney issued a Direction requiring Harbendar Kaur Gurden Singh’s solicitors to file an amended application naming Babaljeet Kaur as a respondent in the proceedings and directed service of the application on her solicitors.
Harbendar filed an Amended Application in Respect of the Death of a Worker in the Commission on 14 July 2010. It named Babaljeet Kaur as the second respondent to the application.
A telephone conference scheduled to take place on 17 August 2010 was postponed to 6 September at the request of the solicitors for Babaljeet Kaur.
On 6 September 2010, a telephone conference took place at which Babaljeet Kaur was represented by Paramount Lawyers. At the telephone conference, it was foreshadowed that Babaljeet Kaur wished to pursue a claim for part of the lump sum compensation on the basis that she was dependent for support upon the deceased worker at the date of his death. The matter was then fixed for a conciliation and arbitration hearing to deal with the issues of dependency and apportionment on 20 September 2010. The Arbitrator directed service of any documents upon which Babaljeet Kaur proposed to rely.
The matter proceeded to conciliation and arbitration on 20 September 2010. Mr Hanrahan of counsel appeared for Babaljeet Kaur, Mr Klarica of counsel appeared for Harbendar Kaur Gurden Singh and Darveen and Rashveen Kaur Sandhu, and Ms Turnbull, solicitor, appeared for the first respondent, Thales.
At the hearing, Mr Hanrahan indicated that he had received instructions from the deceased worker’s former wife, Gurmeet Kaur, and her elder daughter, Gurdeep Kaur. Mr Hanrahan alleged that both were dependent for support upon the deceased worker at the date of his death and, although this was the first occasion on which the Commission had been informed of a claim by Gurmeet and Gurdeep Kaur, he sought apportionment of the lump sum compensation on their behalf. With the leave of the Arbitrator, a number of late documents were admitted into evidence in relation to the claims by Gurmeet, Gurdeep and Babaljeet Kaur.
The Arbitrator granted leave for Gurdeep and Gurmeet Kaur to be joined as parties in the proceedings, and directed their solicitor to file with the Commission an application nominating them as respondents, and annexing the documents on which they relied. Subsequently, an application dated 23 September 2010 was filed in the Commission and served on the parties. It nominated Babaljeet Kaur as the second respondent, Gurdeep Kaur as the third respondent and Gurmeet Kaur as the fourth respondent. Gurmeet, Gurdeep and Babaljeet claimed apportionment of the lump sum of $307,100 “plus interest accrued” and weekly payments of $96.50 per week in respect of one child, from 20 December 2005 to date and continuing.
At the arbitration hearing on 20 September 2010, the Arbitrator heard oral evidence from Harbendar Kaur and detailed submissions from the parties. He then reserved his decision.
Noting that Harbendar and Thales had a limited opportunity to consider the documents admitted into evidence on behalf of Gurmeet, Gurdeep and Babaljeet, the Arbitrator granted leave to Harbendar and Thales to file and serve supplementary submissions within seven days of the arbitration. He also granted leave to the second, third and fourth respondents to respond to those submissions within 14 days. Those submissions were ultimately filed on 12 October 2010.
On 28 October 2010, the Arbitrator issued a Certificate of Determination and a Statement of Reasons. On 10 November 2010, the Arbitrator issued an Amended Certificate of Determination to correct a typographical error. He found that, at the date of the deceased’s death, neither Gurdeep nor Gurmeet Kaur were dependent. However, he found that the claim of dependency by Babaljeet Kaur on the deceased had been proven, and that Harbendar, Darveen and Rashveen were all dependent on the deceased at the date of death. The Arbitrator then made orders apportioning the lump sum between the dependants.
The Arbitrator ordered that the interest on the sum of $307,100 invested with the Public Trustee be paid to Harbendar only.
The appeal concerns the claim for dependency and interest by Gurmeet Kaur and the claim by Babaljeet for a proportion of the interest payable on the lump sum.
THE PARTIES
For simplicity and consistency, the table below identifies the relevant parties on appeal and at first instance. Unless indicated, I propose to refer to the parties by their names.
| Name of party | Proceedings at first instance | On appeal | Representation |
| Gurmeet Kaur | Fourth respondent | First appellant | Paramount Lawyers Mr Hanrahan (Counsel) |
| Babaljeet Kaur Dhillon | Second respondent | Second appellant | As above |
| Gurdeep Kaur Dhillon | Third respondent | (Not a party) | As above |
| Thales | First respondent | First respondent | Sparke Helmore – Ms Turnbull, solicitor |
| Harbendar Kaur Gurden Singh | First applicant | Second respondent | Brydens Law Office Mr Klarica (Counsel) |
| Darveen Kaur Sandhu | Second applicant | Third respondent | As above |
| Rashveen Kaur Sandhu | Third applicant | Fourth respondent | As above |
THE DECISION UNDER REVIEW
The Certificate of Determination dated 10 November 2010 records the Arbitrator’s orders as follows:
“1. Pursuant to section 29 of the Workers Compensation Act 1987 the compensation paid by the first respondent to the Public Trustee be apportioned as follows:
(a)Babaljeet Kaur $30,000
(b)Rashveen Kaur Sandhu $35,000
(c)Daveen Kaur Sandhu $30,000
(d)Harbendar Kaur
Gurden Singh the balance of the monies invested by the Public Trustee.
2. The first respondent pay to the second respondent the statutory rate of weekly compensation for a dependent child of a deceased worker from 20 December 2005 to 21 June 2007 pursuant to section 25(1) (b) of the Workers Compensation Act 1987.
3. That the first respondent pay the costs of the applicant and the second respondent.
4. Certify the matter as complex and recommend a 15% uplift of the costs of the applicant and second respondent.”
It is from that Determination that the first and second appellants, Gurmeet Kaur and Babaljeet Kaur, seek leave to appeal.
LEAVE
There is no dispute between the parties concerning the threshold requirements as prescribed by s 352 of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS REVIEW
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.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal 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, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The issues in dispute in this appeal are whether the Arbitrator erred:
(a) in finding that the first appellant, Gurmeet Kaur, was not dependent upon the deceased at the time of his death, and
(b) in failing to award interest on the apportionment in favour of the second appellant, Babaljeet Kaur.
RELIEF SOUGHT
Gurmeet Kaur seeks relief as follows for herself and Babaljeet:
“an Order that a portion of the capital sum with interest (in the order of $80,000 to $120,000) be set aside or reserved in a fund held by the NSW Trustee and Guardian pending a fuller explanation from the Appellant of her circumstances sufficient to justify a variation of the orders made pursuant to s30 WCA 1987”.
EVIDENCE
Gurmeet Kaur
Mrs Gurmeet Kaur swore a number of affidavits. In an affidavit dated 14 November 2006, Mrs Gurmeet Kaur stated that she had never been legally divorced from the deceased worker. She stated that she had been formerly married to the deceased worker’s brother. Whilst setting out her desperate financial circumstances, she provided no further evidence to support any claim for dependency.
In an undated affidavit, she stated;
(a) that she was married to the deceased in India according to Indian law.
(b) that she was not given an opportunity under Australian law to challenge the divorce.
(c) that both of her children were dependent on the deceased worker.
(d) that documents, which I infer related to the dissolution proceedings, were obtained fraudulently under the pretext that they were required for the purposes of immigration to Australia.
(e) that she had no source of income other than from support from the deceased.
(f) that, although working in Australia, he had plans to settle in India after his retirement.
(g) that the deceased worker, a licensed electrician, often worked after hours to earn additional income and “would send money to us”, which enabled her to provide a better education for her children.
(h) that she was borrowing funds to meet the cost of her children’s education.
(i) that “all my hopes are set towards his superannuation fund”.
(j) that she was in a distressed state financially and unable to repay debts accrued after the death of her husband.
In an affidavit sworn on 19 September 2009, Mrs Gurmeet Kaur stated:
(a) that the deceased sent money to her, averaging $1,000 per month, to spend on household requirements, through bank, money transfers and through friends coming to India;
(b) that Karnail Singh of Ugrahan can attest to the truth of the payments;
(c) that a joint account held in the Punjab National Bank was a source of her withdrawing funds for family commitments.
The balance of that affidavit concerned the financial requirements for her daughter, Babaljeet, to travel to Australia to complete a hairdressing course.
In an affidavit, apparently sworn on 30 September 2009, Mrs Gurmeet Kaur stated:
(a) that Babaljeet was fully dependent on her at that time;
(b) that during Babaljeet’s life, the deceased worker was providing full financial support for her;
(c) that both she and Babaljeet were dependent on the deceased for financial support, which was provided by bank transfers, money transfers or sent through his visiting friends;
(d) that the deceased worker owned land in India which generated some income, which was distributed to the older children of his first marriage. Such records as she had of bank transfers had been forwarded to her solicitor in Australia.
In a further affidavit, dated 17 August 2010, Mrs Gurmeet Kaur stated that the deceased had been making a series of contributions for her daughter, Gurdeep Kaur’s, education. She detailed three payments totalling just under $20,000 between July 2005 and October 2005. The funds were said to be delivered in cash through a friend of the deceased, Mrs Rupinder Kaur (known as Ginni). The payments were said to have been witnessed by Mr J P Chopra. Mrs Gurmeet Kaur also swore that her daughter, Babaljeet Kaur, “was always supported by my late husband financially, socially and morally”. However, she gave no evidence as to the extent of that dependency. Much of the balance of that affidavit concerns the actions of Mrs Harbendar Kaur Gurden Singh after the deceased worker’s death, but does not assist in establishing the extent of her dependency, if any.
Gurmeet Kaur swore yet a further affidavit on 4 October 2010. The relevant evidence may be summarised as follows:
(a) that she was married to the deceased according to Sikh traditions and under the Hindu Marriage Act 1955;
(b) that her divorce in Australia was kept secret from her;
(c) that she enjoyed a successful marriage;
(d) that the deceased had applied for her and her family’s immigration to Australia, which had been rejected;
(e) that the deceased had informed her that there would be an appeal to the Migration Review Tribunal (MRT) in Australia;
(f) that a family friend, Gulzar Singh Tiwana, brought papers and forms for her to sign, explaining that they were for the purposes of the MRT application;
(g) that she signed a number of forms and documents, believing these to be submitted to the MRT;
(h) she is illiterate and cannot read, write or speak the English language;
(i) the forms that she signed were not attested in her presence;
(j) the fact of her divorce and the remarriage of the deceased with Harbendar Kaur (Rani) was disclosed to her by the deceased’s sister four days after the marriage with Rani;
(k) that the documents she signed were obtained from her fraudulently and that she was not given any opportunity to participate in the Family Court proceedings in Australia.
(l) that she is still married to the deceased in India under the Hindu Marriage Act 1955, which states:
“No court can assume jurisdiction to dissolve a Hindu marriage simply on the basis of the consent of the parties de hors the grounds enumerated under section 13 of the Act, unless of course the consenting parties proceed under section 13B (mutual consent) of the Act. Such consent was not obtained by fraud, threat, coercion and/or paying any sum of money because the Hindu or Sikh marriage is not a contract but a sacred institution of inspiration and sanctity.”
Kuldip Kaur provided an affidavit stating that Gurmeet and Gurdeep Kaur were his tenants between July 2008 and January 2010, paying a rental of 1500 Indian rupees (the equivalent of approximately A$33).
In support of her claim for dependency, Gurmeet relies upon an undated document on the letterhead “Paul Merchants Ltd”, which simply reads: “We have received A$7,000 / from Tek Singh Dhillon [the deceased] for Gurmeet Kaur of Ugrahan.” The company seal and a signature are affixed. There is a further document on the letterhead of Paul Merchants Ltd dated 12 August 2005 which simply states: “We have received Australian dollar 4,000 from Dhillon Tek Singh for Gurmeet Kaur Ugrahan”. According to their letterhead, the company, Paul Merchants Ltd, engages in foreign exchange, money transfers, insurance and travel.
The appellants rely on what is apparently a handwritten letter from the deceased worker to Gurmeet dated 25 November 1999. The letter deals with his work in Australia and other personal issues. It notes that the deceased worker intended sending a draft for 25,000 rupees (applying current conversion rates, this amounts to approximately A$600).
Gurmeet further relies on another undated, unsigned, handwritten note to her and a translation thereof stating, “I am sending Rs31,000 along with they [sic] letter inform me. I don’t have much time to write a letter. Will talk on phone”.
The deceased worker wrote an undated note to the first appellant, stating that he would be sending a draft of 10,000 (I infer rupees) (approximately A$220) and providing his current address and telephone numbers.
The evidence discloses a copy of a Western Union money transfer from the deceased worker to the first appellant on 8 November 2003 for the sum of A$750. The deceased worker sent another Western Union transfer to Gurmeet on 17 June 2004 for the sum of A$1,650.
Gurmeet tendered a letter dated 1 September 2010 on the letterhead of M/s Ram Lal & Sons, commission agents. The document read as follows:
“I Sanjeev Kumar S/O Sh. Ram Lal declare that Smt. Gurmeet Kaur Wd/O Tek Singh Dhillon resident of Ugrahan, Tehsil Sunam, Distt:- Sangrur has taken INR 8 lac from me in 4 terms. She has taken this amount for her domestic needs. Her receivings are as follows:
Date
Amount
Signature
1.1-06-2006
2,10,000
[signed]
2.5-07-2007
1,70,000
[signed]
3.15-05-2008
2,20,000
[signed]
4.8-07-2009
2,00,000
[signed]”
Although this document was not referred to in the submissions, I infer that it was intended to establish that Gurmeet Kaur borrowed funds from Ram Lal & Sons totalling 800,000 Indian rupees, or the equivalent of approximately A$17,700 in four instalments between 1 June 2006 and 8 July 2009.
Gurmeet tendered a statement dated 27 March 2007 from Sarpanch Gram Panchayat. He certified that Gurmeet and her family were personally known to him and, to his knowledge, the deceased worker had been in touch with Gurmeet Kaur “telephonically” whilst he was in Australia.
On 1 February 2007, Gurmeet Kaur, appointed by general power of attorney Gary Sandhu of Hinchinbrook, New South Wales, as her attorney under the Powers of Attorney Act 2003.
Babaljeet Kaur
In a statement made in Brisbane on 9 September 2010, Babaljeet Kaur stated that she was unmarried and still dependent on her parents. She stated that she was “still studying” without elaborating, and indicated that all her fees were being met by her parents.
She stated that her father was sending financial assistance continuously to assist her and her sister, Gurdeep, in their education.
Babaljeet stated that she required funds to meet the costs of her living expenses and was without any other form of income to support herself. She stated that her mother had borrowed funds and had incurred a “huge debt” to finance her living and education expenses. She stated that her mother was being pressed for repayment of loans.
Gurdeep Kaur
In an undated statement, notarised on 19 September 2010, Gurdeep stated that she was dependent on her parents for her education and living expenses, and was receiving payments from her mother. She stated, “at the moment we are living from hand to mouth”. She said that, since the deceased’s death, she and her mother had no source of income.
Gurdeep confirmed that her mother was living on borrowed funds to meet her daily living expenses. She also stated that her mother was being pressed to repay loans.
Gary Sandhu
Gurcharan Singh Sandhu, also know as Gary Sandhu, of Hinchinbrook, New South Wales, provided a statement dated 12 October 2010. He stated as follows:
(a) he was known to the deceased, and knew Gurmeet, Gurdeep and Babaljeet Kaur for the last 11 years as members of the deceased’s family;
(b) he had met the deceased at the Sikh temple in Austral and they had become close friends;
(c) while Mr Sandhu was visiting the deceased’s home, the deceased would frequently call his family in India. Mr Sandhu was introduced to the family members by the deceased;
(d) the deceased had made known to him his plans for the future immigration of the family to Australia;
(e) when he travelled to India to meet relations, Mr Sandhu met with the deceased’s family, including the deceased’s brother-in-law, and Gurmeet and Gurdeep Kaur;
(f) Gurdeep Kaur had been studying at Chandigarah with Mr Sandhu’s niece;
(g) Mr Sandhu stated that, at the request of Gurmeet Kaur, he assisted her to make a claim on the deceased’s superannuation, and had been provided with a power of attorney in Australia.
Harbendar Kaur Gurden Singh
Harbendar Kaur Gurden Singh provided two signed statements, the first undated and the second dated 13 November 2008.
In the undated statement, she stated that she was born in Malaysia in January 1963. In May 2005, she came to Australia for a holiday and met the deceased. They became friends and, when she returned to Malaysia on 9 June 2005, they continued to correspond via telephone and mail.
After consistent correspondence, the deceased proposed marriage to her and encouraged her to come to Australia with her daughters to live with him in his home. She waited until her daughter had finished her examinations and came to Australia, arriving on 4 December 2005.
Harbendar and the deceased were married on 10 December 2005. Harbendar has two daughters; the eldest daughter, Darveen, was born in 1990, and Rashveen born in 1991. Both before and after the wedding, Harbendar and her daughters lived in the deceased’s house at Blacktown. Prior to their arrival, the deceased had equipped the house with furniture in separate bedrooms for the daughters.
Before coming to Australia, Harbendar was employed as a private tutor, but had not arranged suitable employment in Australia. Both she and her daughters were totally dependent on the deceased. She claimed that the deceased had undertaken to support her whether or not she obtained employment. It was the deceased’s intention to meet the costs associated with her daughters’ education, including uniforms, textbooks and school, whether in public or private schooling if necessary. The deceased paid for all household expenses. The deceased had undertaken to teach her to drive and purchase a car for her.
Harbendar was responsible for doing all of the cooking and attending to domestic activities around the home.
Prior to his death, the deceased had begun building a new home on an adjacent block of land to where he was then living, with the intention that the whole family would move into the new home.
Harbendar and the deceased had discussed plans to start a small business which would involve the deceased worker working as a handyman and electrician, and Harbendar attending to the paperwork for the business.
Since his death, Harbendar has undertaken a business administration certificate course to assist her in finding work. She is in receipt of Centrelink benefits of $408.50 per fortnight. She also receives $104 a fortnight rent assistance. The daughters obtain study allowance from Centrelink of $190 each per fortnight. Her daughters receive no financial support from their biological father and were totally reliant on the deceased for support prior to his death. The deceased had planned to adopt Harbendar’s daughters.
After the deceased’s death, Harbendar entered into an agreement with the three elder children of the deceased’s first marriage to divide his estate. She retained his superannuation death benefit. The properties owned by him were divested to his elder children. The superannuation payment in her favour was in the sum of $90,183.09.
In a statement dated 13 November 2008, Harbendar Kaur Gurden Singh detailed the arrangements between herself and the deceased’s three elder children, Harjit, Ajit and Karamjit. I note that none of these parties are pressing any claim for dependency in these proceedings. Until the deceased’s death, Harbendar Kaur Gurden Singh was unaware of the existence of the children of his ex-wife, Gurmeet Kaur. The proceeds of the deceased’s superannuation policy had been distributed in the proportions of 85 per cent to her and 15 per cent to his daughter, Babaljeet.
THE ARBITRATOR’S DETERMINATION
The Arbitrator was satisfied that the applicant, Harbendar Kaur Gurden Singh, and her children were dependent upon the deceased at the date of his death. That finding has not been challenged. On the evidence before the Commission, the Arbitrator held that neither the applicant nor her daughters had assets of their own at the date of death of the deceased worker, and had no separate income at that time. The applicant was cross-examined by Mr Hanrahan to suggest that her marriage to the deceased, which was of short duration, was a marriage of convenience. The Arbitrator rejected that suggestion and her evidence was accepted by the Arbitrator.
In so far as the alleged dependency of Gurmeet Kaur and her children is concerned, the Arbitrator found that the evidence in support of the claim was vague and unsatisfactory.
The Arbitrator accepted that the evidence established that the deceased worker did send money to Gurmeet Kaur prior to their divorce. The Western Union receipt records the transfer of A$1,650 from the deceased to Gurmeet Kaur on 17 June 2004, that is, a date after their divorce. The Arbitrator did not specifically refer to the earlier payment of A$750 through Western Union on 8 November 2003. I note, however, that that payment was made prior to the divorce, which occurred on 24 February 2004.
Apart from the payment to which the Arbitrator referred, he found that there was no convincing proof of any other payment by the deceased worker to Gurmeet in the period following his divorce and prior to his death. Gurmeet’s written evidence does not refer to any specific payments or the actual provision of support in the period prior to the death of the deceased. Whilst the affidavit evidence of Babaljeet stated that the deceased worker was “sending financial assistance continuously” to assist her and her sister, she did not state that the assistance was for the benefit of Gurmeet. The Arbitrator found that the evidence was in the most general terms and provided no detail of the method of providing financial assistance, the regularity of any payments, or the precise time at which the payments were made.
The Arbitrator rejected the documentary evidence on the letterhead of Paul Merchants Ltd, referring to the receipt of A$7,000 and other amounts from the deceased worker for Gurmeet, stating that it did not constitute a genuine record of the transfer of money from the deceased to Gurmeet. He said such payments were not corroborated by any other record or by oral evidence.
Whilst the Arbitrator accepted that the deceased worker intended to support Gurdeep if she came to Australia to study at the Austec Institute at Blacktown in 2004 or early 2005, it was not entirely clear whether Gurdeep ever came to Australia. She is now studying at Chandigarah in India.
Gurdeep was 21 years of age at the date of death of the deceased and, whilst the Arbitrator accepted that the deceased worker offered to support her if she came to Australia, he was not persuaded by the evidence that the deceased did in fact support her in that way or intended to support her thereafter. He found, on the evidence, that neither Gurdeep nor Gurmeet were dependent on the deceased at the time of his death.
The Arbitrator rejected the suggestion that Gurmeet was “duped” into signing documents relevant to the divorce in February 2004. He, correctly in my view, was reluctant to accept that that fact had been proven on the basis of the untested allegations of Gurmeet. That was particularly so given inconsistencies in her affidavit evidence referred to at [45] of the Statement of Reasons.
The Arbitrator held that the evidence established that Gary Sandhu, the author of the statement of 12 October 2010, was granted a power of attorney to act for Gurmeet, in relation to a claim on the superannuation policy of the deceased worker. The claim was made by Gurmeet as trustee for her daughter Babaljeet.
The Arbitrator said that, despite the fact that the applicant must have known by the time that she granted the power of attorney that the deceased worker had divorced her, there was no evidence that she took any action to set aside the divorce or that she sought to have the Australian court determine property rights consequent upon the divorce following the death of the deceased worker. Although she had instructed a lawyer in Australia, she made no claim on the assets of the deceased following his death.
The Arbitrator found that Babaljeet had a reasonable expectation of some future support from the deceased at the time of his death. That finding is supported by the evidence that the deceased was prepared to support her sister, Gurdeep, should she have travelled to Australia to study. Although the payments through Western Union to her mother are unexplained, the evidence was established to the Arbitrator’s satisfaction that the deceased did, from time to time, prior to 17 June 2004, provide money to Gurmeet, some of which, he inferred, was for the support of Babaljeet.
GROUNDS OF APPEAL, SUBMISSIONS AND FINDINGS
The grounds of appeal fall into two broad categories. They concern first, the claim that the Arbitrator erred in finding that Gurmeet was not dependent on the deceased at the time of his death. And, second, that he erred by awarding all of the interest earned on the lump sum death benefit whilst it was invested with the Public Trustee to Harbendar and failing to apportion the interest between the dependants.
The dependency issue
Credit of Gurmeet Kaur
Gurmeet Kaur submitted that, in finding she was not dependent on the deceased, the Arbitrator erred by rejecting her evidence on an issue of credit when he had not had a proper opportunity to observe her.
She submitted that it was unfair for the Arbitrator to make comparative judgments about the credibility of witnesses in circumstances where the first appellant did not give evidence, but where Harbendar gave limited evidence. Gurmeet submits that she is illiterate in English, impecunious and resident in India. Her instructions were given to her lawyers through Gary Sandhu, who was granted a power of attorney. She states that she was informed of the application “some time after 8 July 2010”.
Gurmeet submits that she had insufficient time to prepare documents and obtain corroborative evidence on the issue of dependency. Preparation of documents for other purposes, namely, immigration, superannuation and a Motor Accidents Act claim, “distracted” her attention from the specific task of addressing the criteria relevant to the determination of dependency under the 1987 Act.
Gurmeet further submitted that:
“it was unreasonable of the Arbitrator to expect that the Appellant following the death of her former husband and being informed of her status as divorced under Australian law would have either the means or motivation to pursue proceedings in the Family Court of Australia to correct any anomaly in the procedures there having regard to the futility of such an action in the present circumstances.”
Thales made no submissions on the appeal in so far as it relates to the alleged dependency by the appellants.
Harbendar, Darveen and Rashveen submit that there was no application to cross-examine the first appellant due to her failure to attend the arbitration. The Arbitrator permitted the admission of all the documents sought to be tendered by the appellants, notwithstanding that they were only made available to other parties at short notice on the day of the arbitration hearing. Further, they submit that the Arbitrator adjourned the proceedings for further submissions for a period of time following the hearing, and submit that, during that period, no application to admit late documents was made by the appellants containing “documents and other corroborative evidentiary material” with respect to the issue of dependency.
Harbendar, Darveen and Rashveen further submit that the Arbitrator did not act unreasonably with respect to the evidence before him. In the five years since the death of the deceased, Gurmeet made no application under the Family Law Act to correct any alleged anomaly, notwithstanding that she had a legal representative in Australia.
It is disingenuous in my view for Gurmeet to submit that some unfairness arose due to the fact that Harbendar gave evidence at the hearing, when that occurred only because of a request by Gurmeet’s counsel, Mr Hanrahan, to cross-examine her (T26.17). Moreover, the assessment made by the Arbitrator was not based upon the relative credibility of witnesses, but upon the reliability of the documentary evidence in support of their claims. The Arbitrator said, at [34] of the Statement of Reasons (Reasons) that, by reason of the fact that Babaljeet was in Brisbane at the time of the arbitration, and Gurmeet and Gurdeep were in India, their evidence could not be tested by cross-examination, and it was therefore necessary to scrutinise the documentary evidence closely. He found that the documentary evidence was “vague and unsatisfactory” and, based on the documentary evidence, Gurmeet had not established dependency on the deceased.
Procedural fairness – time to prepare
Gurmeet Kaur submitted that she had insufficient time to prepare her case. I reject the submission for the following reasons.
First, on 28 August 2009, more than a year before the hearing, Brydens Lawyers, on behalf of Harbendar, wrote to Gurmeet’s then lawyers, Byles Canceri. That correspondence refers to earlier correspondence which was not included with the application, but it is clear that there had been an exchange of correspondence between Brydens and Byles Canceri concerning the rights of Gurmeet and her daughter, Babaljeet. It is apparent that a request for contact details for Gurmeet had been declined and, on that basis, Brydens requested Byles Canceri lawyers to contact Gurmeet to advise her that her daughter may be entitled to make a claim under the Workers Compensation Act as a dependant, and encouraged them to arrange for legal advice. The evidence does not disclose whether that advice was transmitted to Gurmeet, but she was clearly receiving advice on a range of legal issues for at least a year before the application was filed, and it would be reasonable to infer that this included advice concerning her rights and her daughters’ rights under the workers compensation legislation.
Second, Gurmeet said she was first notified of the application some time after 8 July 2010. A Certificate of Service of the Amended Application in Respect of the Death of a Worker (joining Babaljeet as a respondent) was filed on 15 July 2010. It certified the Application was served on Byles Canceri Lawyers,who represented both Gurmeet and Babaljeet, on 14 July 2010. The arbitration did not take place until 20 September 2010. Therefore, it would be reasonable to infer that Gurmeet had at least two months advance notice of the hearing.
Third, there is no submission from Gurmeet or her daughters that they were precluded from relying on any particular documentation to support their application, due to the time constraints.
Fourth, there was no application to adjourn the arbitration and there has been no application to rely on fresh or additional evidence on appeal.
The submission that Gurmeet may have been “distracted” from preparing her case by other legal action is no ground for interfering with the Arbitrator’s determination.
Notwithstanding that the appellants failed to conform to the requirements for the admission of late documents, the Arbitrator gave the appellants very considerable latitude to introduce late evidence at the arbitration hearing.
In all the circumstances, I am satisfied that Gurmeet and Babaljeet had sufficient time to prepare documents and obtain evidence on the issue of dependency.
Procedural fairness – failure to allow sufficient time to consider late documents/cross-examination
Gurmeet submits the Arbitrator failed to provide procedural fairness to the appellant by not allowing sufficient time for a proper examination of late documents, allegedly obtained in haste, and failed to provide for cross-examination of the appellant when reliance was placed on the absence of such evidence in order to defeat Gurmeet’s claim.
The appellants submit that the Arbitrator acted unfairly and contrary to s 354(2) of the 1998 Act when deciding, without prior notice, that it would be necessary for Gurmeet to provide strict evidence of her status under Indian law “for the purpose” of these proceedings. This is a reference to [43–44] of the Reasons, where the Arbitrator referred to Gurmeet’s reference to the Hindu Marriage Act 1965 in an attempt to establish she was still married to the deceased at the time of his death.
Harbendar, Darveen and Rashveen submit that the first appellant’s status under Indian law was not a relevant factor. Her status under Australian law is the relevant law to apply.
To the extent that Gurmeet was attempting at paragraph (v) of her affidavit of 4 October 2010 (summarised as paragraph (l) at [41]) to prove foreign law, the Arbitrator quite rightly rejected that attempt. In doing so, the Arbitrator was not acting contrary to s 354(2) of the 1998 Act; he was making the observation that the appellant cannot prove foreign law merely by asserting it in an affidavit. In any event, whether Gurmeet is still married under Indian law was irrelevant, as she is entitled to claim as a dependant of the deceased whether she had been divorced or not. As a divorced spouse, she could still satisfy the definition of “dependants” under s 4 of the 1998 Act.
Gurmeet submits that there is no prejudice to Harbendar to allow sufficient time for the appellants’ entitlements to be properly determined on sound evidence if a portion of the moneys allocated is held in trust, pending further review of the circumstances warranting any variation of the apportionment.
Harbendar Kaur Gurden Singh, Darveen and Rashveen Kaur Sandhu submit they are prejudiced by any further delay in the final resolution of the application due to the length of time that has elapsed since the worker’s death and the closure that will be achieved by the resolution of the matter.
I accept the submission that those parties entitled to the distribution from apportionment of the lump sum would be prejudiced by the further delay that would be occasioned by this matter effectively being adjourned, as Gurmeet submits, to provide her time to provide a “fuller explanation” of her circumstances to justify an apportionment in her favour.
Even though the funds are held in trust and earning interest, there is clear prejudice to those parties entitled to a distribution from the fund by any further delay in the funds being disbursed.
I also reject the submission that Gurmeet was denied procedural fairness by reason of the fact that she was not called to give evidence. I appreciate that Gurmeet was living in India at the time of the arbitration; however, she could have given evidence by telephone or closed-circuit television. Section 354(4) permits the participation of parties in proceedings by telephone, closed-circuit television or by other means. The acceptance of evidence by telephone, even in circumstances where the credit of witnesses was in issue, was approved by me in Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43 at [70] and [71]. No application was made by Gurmeet’s counsel, either at the arbitration or on appeal, to call her to give evidence. Had such an application been made, any perceived unfairness could have readily been overcome.
Inconsistent statements
Gurmeet Kaur submits that, in failing to find that she was dependent on the deceased, the Arbitrator erred by rejecting her evidence as “vague and unsatisfactory” on the basis of inconsistency when the statements made in the affidavits referred to were not fairly open to that interpretation.
Gurmeet submitted that the inconsistencies as to the state of her knowledge of her divorce from the deceased worker in affidavits dated 4 November 2006 and 12 October 2010 are not necessarily inconsistent when cultural differences are taken into account.
The Arbitrator identified the inconsistencies at [45] of the Reasons. In her affidavit of 4 November 2006, Gurmeet stated that she had no knowledge of her divorce from the deceased. However, in her affidavit of 12 October 2010, she said that she was made aware of the divorce by the deceased’s sister four days after his marriage to Harbendar.
These are clear inconsistencies in the Gurmeet’s evidence. The submission that they can be explained by a “difference in language” or cultural differences was not developed or explained on appeal. The allegation of her being fraudulently manipulated into signing family law documents was, as the Arbitrator noted, a particularly serious one, and the Arbitrator’s disinclination to accept that evidence on the untested and contradictory statements of Gurmeet was a conclusion that was open to him on the evidence and I agree with it.
Cash payments
Gurmeet Kaur submits that, in failing to find that she was dependent on the deceased, the Arbitrator erred by failing to take into account evidence of cash payments from the deceased, delivered to her by family and friends visiting India.
It is submitted that the Arbitrator overlooked the evidence of cash payments delivered to Gurmeet by friends and family members when they visited her in India. Whilst the Arbitrator made no specific reference to those payments, it may be implied from [38] of the Statement of Reasons that he did not accept this evidence as convincing proof of payments made to Gurmeet by the deceased. The evidence is contained in Gurmeet’s affidavit, dated 19 September 2009, where she states:
“2) That he used to send money, averaging A$1,000 per month, to spend on our household through bank, money transfers and also through his friends coming to India:
3) That one of his friends Mr Karnail Singh of Urgrahan can stand witness regarding this truth:”
There was no corroborative evidence of funds being transferred to the appellant by friends travelling to India. Although it was said that Mr Singh and Mr Chopra were in a position to corroborate those claims, neither provided evidence to support the allegation that they witnessed the transfer of such funds. It seems unlikely, given that the worker had established a mechanism for transferring funds through Western Union and Paul Merchants Ltd, that he would resort to sending significant sums of money through friends or relatives travelling to India. I do not accept the evidence that substantial sums were transferred to Gurmeet by the deceased through friends and family members when travelling from Australia to India.
Authenticity of funds transfers
In finding that she was not dependent on the deceased, Gurmeet submits that the Arbitrator erred by failing to give any weight to the evidence of payments on the letterhead of Paul Merchants Ltd, failing to offer any reasons for finding that those records were not “genuine”, and failing to acknowledge the evidence given in other documents that those documents contained a signature of the deceased which was verifiable by reference to the originals translated from the deceased’s handwriting.
The appellants submit that the Arbitrator failed to consider the genuineness of a number of significant documents and did not allow sufficient measures to be undertaken to explain the documents or to provide corroborative evidence in time for a proper understanding of the documents to be gained for the purposes of the determination.
With respect to the alleged transfers of A$7,000 and A$4,000 through Paul Merchants Ltd, the Arbitrator did not accept that the alleged receipt of funds through Paul Merchants Ltd from the deceased to Gurmeet were genuine. He concluded that the documentary evidence relied upon by Gurmeet was “highly unsatisfactory “and was not corroborated by other record or oral evidence. For those reasons, he placed no weight on that evidence.
The document at page 42 of the appellants’ documents states that Paul Merchants Ltd is a company involved in “inward/outward money transfer, foreign exchange and other commercial activities”. The receipt of funds is noted on their letterhead, to which the company seal is affixed and a signature entered, apparently the same signature in both cases. The transfer of $4,000 appears to be dated 12 August 2005, a few months before the deceased’s death.
The deceased’s banking records indicate the withdrawal of substantial sums from time to time. One such withdrawal was made in the sum of $5,000 on 29 July 2005. Whilst the sum is not precisely the same as that transferred through Paul Merchants Ltd, it could be consistent with the withdrawal of cash from his bank account, some of which he transferred to the appellant through Paul Merchants Ltd two weeks later.
I accept that Paul Merchants Ltd is a commercial agency that acknowledged the receipt of funds on behalf of Gurmeet. I have no reason to doubt that those receipts are a genuine record of transactions between the deceased and Gurmeet, and, in the absence of any other cogent reason to reject that evidence, I consider that the Arbitrator erred in placing no weight on it. It follows therefore that the Arbitrator’s finding with respect to the dependency of Gurmeet Kaur must be revoked and the matter re-determined.
Weight of evidence – duration of respective marriages and inequality of means
In determining the matter, Gurmeet submits the Arbitrator gave too much weight to the evidence of Harbendar, who had only been married to the deceased for 10 days, and failed to give any weight to the evidence of Gurmeet, who had been married to him for eight years and to whom she bore a child (Babaljeet).
The appellants submit that the Arbitrator failed to have regard to the inequality of means when comparing the position of Gurmeet and Harbendar, and failed take judicial notice of the fact that Harbendar had access to Australian social security support and Gurmeet did not.
The appellants submit that the Arbitrator failed entirely to consider the respective lengths of the relationships between the deceased and Gurmeet and Harbendar. Evidence of the attempts made by the deceased to have Gurmeet emigrate to Australia were not challenged.
Further, the appellants submit the social obligation on the deceased, in his particular cultural context, notwithstanding his subsequent marriage in Australia, to support his second wife in India was high, but difficult to enforce. The fact that Gurmeet was living with the father of the deceased in a village community in India and that some money in fact was transferred supports an inference that family obligations were in fact observed, and that support continued.
Harbendar, Darveen and Rashveen submit that the Arbitrator made no error in that regard. Thales makes no submission on the issue.
It is not apparent from the Arbitrator’s decision that he placed any more or less weight on the evidence of either of the deceased worker’s former wives. The appellants have not identified any aspect of the determination which would suggest otherwise, and I reject the submission.
Whilst the respective length of the marriage of the deceased to Gurmeet and Harbendar may be a relevant matter, it is not determinative of the existence or extent of dependency at the date of death. The extent of dependency depends on many things. In Wratten v Kirkpatrick [1996] NSWCC 2; 15 NSWCCR 32 at 34, it was held:
“The exercise of power to determine the correct amount to be apportioned to each dependant requires an examination of all relevant facts including the extent of past dependence, the anticipated future dependence, the ages of the dependants, their health, special needs, lifestyle etc.”
The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date; “past events and future probabilities” have to be considered. (Aafjes v Kearney 180 CLR 199; [1976] HCA 5; 8 ALR 455; 50 ALJR 454, 456, 457 and 459 (Aafjes)).
Findings on the extent of dependency
Gurmeet submits that the Arbitrator failed to make findings concerning the extent of the dependency of Harbendar, Darveen and Rashveen, although he acknowledged the task required of apportioning the lump sum between them.
In the alternative, it is submitted that, if the Arbitrator did determine the extent of the dependency of Darveen and Rashveen as total, then such a finding was contrary to the evidence that Darveen and Rashveen at relevant times were working and earning income from part-time employment. The appellants submit that there was no evidence to support a finding that Darveen and Rashveen were totally dependent on the deceased. The Arbitrator’s finding at [31] that neither Harbendar nor her two daughters had a separate income was inconsistent with the finding made at [55] that Darveen remained partially dependent. The appellants submit that the evidence supports a finding that Rashveen was working part-time at the date of the worker’s death.
Thales submits that the Arbitrator made a determination as to the extent of the dependency as formulated by the apportionment determined. Thales submits that the appellants did not have standing to appeal against a determination made that does not relate to the appellants.
Leaving aside the submission that the appellants have no standing to appeal the findings on the extent of the dependency issue, I am satisfied that the Arbitrator did make appropriate findings determining partial dependency of Darveen and Rashveen. At [55] of the Statement of Reasons, the Arbitrator stated in respect of Darveen that she was 15 and eight months of age at the date of death of the deceased, and it is likely that she would have been in part dependent on the deceased for accommodation, clothing, food and the like until her 18th birthday. He went on to make a similar finding at [56] in respect of Rashveen. The Arbitrator’s apportionment of the lump sum is also consistent with a finding of partial dependency. It follows that I reject the appellants’ submission.
Apportionment of interest
In respect to the apportionment made to Babaljeet, it is submitted that the Arbitrator erred by failing to provide for the payment of interest on the sum apportioned.
Gurmeet submits that the Arbitrator, while allowing a portion of the capital sum to be apportioned to Babaljeet, did not, in the exercise of his discretion, fairly deal with the entitlement to interest on that sum and, without apparent justification, allocated the whole of the interest to Harbendar.
Gurmeet submits that all of the persons entitled to a portion of the lump sum should each be entitled to interest on the capital sum so apportioned, and that each of the portions determined should attract interest while under investment pending the outcome of the dispute. Otherwise, the appellants submit, Harbendar obtains a windfall at the expense of other dependants merely because the proceedings have been delayed.
Harbendar, Darveen and Rashveen submit that each dependant should be entitled to a portion on the interest “applicable to the sum”, which I infer is a submission that each dependant should be entitled to share in the interest earned on the investment of the funds in the proportion of the apportionment of the lump sum in her favour.
Thales makes no submission with respect to Babaljeet’s claim for interest on the compensation awarded to her to the extent that the interest claimed is interest accrued and held by the Public Trustee, but it opposes any claim for interest under the 1998 Act and submits that the Arbitrator was correct in awarding no interest under the legislation. Thales submits that an award of interest is discretionary and is a matter for the Commission (Pasminco v Walters [2005] NSWWCCPD 30; Canham v Kenna Investments Pty Ltd [2006] NSWWCCPD 202).
Thales makes the following submissions on the question of interest:
(a) The appellants do not specify whether interest is claimed under the Workers Compensation Act 1987 or only in respect of the interest accrued on funds held by the Public Trustee;
(b) No claim for interest was made at the arbitration on 20 September 2010 and no submissions were made regarding the Commission’s discretion to award such interest under the workers compensation legislation;
(c) Whilst interest is claimed at Pt 5.1 of the Application in Respect of the Death of a Worker filed on behalf of the second, third and fourth respondents (the second and fourth respondents being the first and second appellants), the application does not specify the nature of the interest claimed (that is, whether it is on the money held by the Public Trustee or interest under the workers compensation legislation);
(d) The application (claiming interest) was not served until 23 days after the arbitration, notwithstanding the Arbitrator’s order that it be filed and served within seven days;
(e) The claim for interest has never been properly put before the Commission and it was not open for the Arbitrator to award any interest under the workers compensation legislation;
(f) Should the Commission be inclined to award interest to either or both of the appellants under the workers compensation legislation, such interest should only be payable from the date the appellants’ claim was duly made at the earliest. The appellants’ claim for compensation was not fully particularised until the time the Application in Respect of the Death of a Worker was filed on 13 October 2010 on behalf of the second, third and fourth respondents, and therefore any award of interest should only be payable from this date, if at all, and
(g) Significant efforts were made by the parties and by the Commission to inform Babaljeet of her potential entitlement to compensation. However, the appellants’ claim was not made and their involvement in proceedings did not occur until the arbitration. In respect of Gurmeet, the parties had no knowledge of any claim being made by her until the day of the arbitration.
The appellants’ submissions make it clear that the claim for interest is a reference to interest “while under investment pending the outcome of the dispute”. If the submission is understood in that context, neither Thales nor Harbendar, Darveen and Rashveen object to the interest being apportioned.
If I have misinterpreted the appellants’ claim for interest, it would not affect the outcome of the appeal in any event. The Commission has discretion under s 109 of the 1998 Act to award interest subject to the limitations imposed by the section.
Section 109(2)(b) of the 1998 Act prohibits interest on any award of compensation payable under the Act for any period before a claim for the compensation was duly made. I accept the submission that the claim for compensation on behalf of the appellants was not duly made until the day of the arbitration. I therefore accept Thales’s submission that, as at the arbitration, the appellants could not be entitled to interest pursuant to s 109 of the 1998 Act.
The Arbitrator’s reasons for not distributing the interest on the capital sum in accordance with the apportionment are not clear. Given that the funds have been invested by the Public Trustee and have earned interest since the capital sum of $307,100 was paid into the Public Trustee on 17 June 2008, as a discretionary matter, I consider it appropriate that the interest earned on that fund should be distributed, pro rata, between the dependants in accordance with the apportionment orders.
RE-DETERMINATION
Was Gurmeet Kaur dependent on the deceased at the time of his death?
Given my findings at [118], it is necessary that the question of the dependency of Gurmeet be re-determined. Where the Arbitrator’s decision is revoked, it is generally desirable that the Presidential member hearing the appeal re-determine all issues (Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1).
The relief sought by the first appellant is an order that a portion of the capital sum with interest (in the order of $80,000–$120,000) be set aside or reserved in a fund held by the NSW Trustee and Guardian pending a “fuller explanation” from the appellant of her circumstances sufficient to justify a variation of the orders made pursuant to s 30 of the 1987 Act.
Given that five years have elapsed since the worker’s death and that the funds have thus far been held in trust for over two-and-a-half years, it is appropriate and consistent with the objectives of the Commission under s 367 of the 1998 Act that the matter be finally determined. The appellants have had every opportunity to present their case and did so.
No specific actions have been referred to in the appellants’ submissions as to any further steps that they would take to obtain documentary evidence to support their claims, and nor has any application been made for orders for directions to be issued. As I have already noted, no application has been made for fresh evidence on appeal.
As I have the benefit of the transcript of the proceedings before the Arbitrator, including the oral evidence of the only witness, Harbendar Kaur Gurden Singh, together with all the documentary evidence, I consider that I am in a position to re-determine the issues on appeal.
Section 4 of the 1998 Act defines “dependants”. It includes a divorced spouse of the worker.
Dependency is a question of fact. In Aafjes, Gibbs J said (at 208):
“The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date; ‘past events and future probabilities’ have to be considered (Lee v Munro (1928) 21 BWCC 401 at p 408).”
In this case, a consideration of “past events and future probabilities” is relevant to the question of the existence or otherwise of dependency and to the question of the extent of the dependency.
Gurmeet has sworn an affidavit attesting to the fact that she received an average of $1,000 per month from the deceased to spend on household necessities. In support of her claim she relies on the receipts acknowledged by Paul Merchants Ltd and the transfer of funds from time to time through Western Union. I accept those payments as genuine and they are consistent with Gurmeet’s evidence that the deceased transferred substantial sums to her for her maintenance and support, but I am not satisfied she has established that she was dependent on the deceased to the extent of an average of $1,000 per month.
The disbursement of funds received by Gurmeet from the deceased has not been adequately explained by the evidence. The inference that I draw is that the funds were used partially for the support of Gurmeet and partially for her two daughters. Gurmeet’s evidence, which I accept, is that, in addition to the funds received from the deceased worker, she borrowed money to make ends meet. I accept her evidence that she has no other source of income.
Her evidence that she borrowed funds to survive after the worker’s death is corroborated by the evidence of Ram Lal & Sons (referred to at [48]), which demonstrates that she commenced her borrowing soon after the worker’s death and has been borrowing funds over an extended period. The evidence that Gurmeet and her family have been living on borrowed funds is also corroborated by the evidence of her daughters, which I accept.
The fact that the evidence discloses that the deceased worker made substantial payments to Gurmeet after their divorce in February 2004, evidenced by the Paul Merchants Ltd transfer of $4,000 in August 2005, indicates an intention, in my view, on the part of the deceased worker to continue to support his former wife to the extent that he was able. Based on this evidence, I find that Gurmeet was dependent on the deceased worker at the date of his death.
The deceased worker remarried on 10 December 2005, only 10 days before his death. The evidence of Harbendar Kaur Gurden Singh, which I accept, indicates that the deceased worker had stated his intention to support her and her two daughters, Darveen and Rashveen. Since arriving in Australia on 4 December 2005, the deceased met all of the expenses associated with supporting her and her two children.
It is Harbendar’s evidence that the deceased worker undertook to meet the costs associated with her daughters’ education, including uniforms, textbooks and school fees. She said that, if they were unable to enrol her daughters into a public school, he would undertake to meet the costs associated with their private schooling. Although Harbendar and the deceased were only married for 10 days, they had opened a joint bank account at Wectpac in Blacktown. It was her expectation that the deceased would teach her to drive and buy her a car and, in return, she would be responsible for domestic duties in the family home.
In the last full tax year prior to his death, 2004/2005, the deceased worker earned a taxable income of $55,144. The tax payable on that sum amounted to $13,432, leaving the deceased worker with a disposable income in the order of $42,000 or, in round figures, about $800 per week.
At the date of the deceased’s death, he was 57 years of age. Had he not been killed in the accident, it would be reasonable to assume that he would have continued working for another eight years, until he reached the age of 65.
At the date of his death, Harbendar’s two children, Darveen and Rashveen, were 15 years of age and 14 years of age respectively. It is reasonable to infer that they would have remained dependent on the deceased at least for several years until they completed their schooling and possibly for a period thereafter.
Whilst Harbendar had worked as a private tutor before coming to Australia, she was not employed at the date of the deceased’s death. It was her expectation that, in exchange for her and her daughters’ maintenance and support by the deceased, she would undertake all domestic duties for the family unit.
Whilst Harbendar and the deceased had discussed plans for the deceased to start a small business where he would apply his skills as a handyman and electrician, and to which she would contribute administrative support, there is no evidence as to when this would occur, or how much income would be derived from such a business, or indeed whether it would have increased the disposable income he would have earned compared to his earnings as an employed tradesman. The proposal was so nebulous that I have not placed any weight on it.
Noting that Harbendar and the deceased had only been married for 10 days before his death, it is not possible to determine with precision how much of his income would have been spent on them, but Harbendar’s evidence is that the deceased had undertaken to meet any and all costs associated with her and her daughters’ maintenance and support. That evidence is logical and consistent with the deceased’s actions prior to his death and I accept it.
Given the “future probabilities”, it would be reasonable to infer that, from his disposable income, the deceased would have met the costs associated with providing Harbendar and her daughters with food and accommodation, whether that be by way of mortgage payments or rent, utilities, clothing, motor vehicle expenses, insurances, education expenses, holidays and so on, and that this would probably have exhausted the bulk of his disposable income.
Whilst it is not possible to assess with accuracy how much of the deceased’s income would have remained unspent and available for himself and for the support of Gurmeet, I believe it is unlikely to have exceeded $100 per week or around $5,000 per year. Whilst this assessment has involved a judgment about the “deceased’s circumstances, character propensities and performance to the date of death”, such an approach, based upon the limited available facts, was considered and approved in Warilla Timber & Hardware Pty Ltd v Newton (1995) 11 NSWCCR 546 per Mahoney AP at 549.
If one assumes that Gurmeet would have been supported by the deceased worker until his retirement at age 65 (and there is no evidence he would have worked beyond normal retiring age), he would have worked another eight years. The current capital value of that support, calculated at a discount rate of five per cent, would amount to $34,560. In view of the short duration, I do not consider it appropriate to apply any further discount for vicissitudes. Given that the deceased and Gurmeet were not living together, I do not consider it appropriate to add any additional sum for the loss of handyman or other domestic services after his retirement.
For these reasons, rounding the figure up, I propose to apportion $35,000 of the lump sum in favour of the first appellant, Gurmeet Kaur.
Interest
For the reasons given at [137]–[140], I direct that such interest as has accrued on the lump sum by virtue of its investment by the Public Trustee since 17 June 2008 be divided pro rata between the dependants in accordance with the apportionment of the lump sum.
DECISION
The orders in paragraphs 1(a), (b) and (c) of the Arbitrator’s determination of 10 November 2010 are unchanged. However, for clarity and simplicity, the whole of paragraph 1 and paragraph 3 of the Arbitrator’s determination of 10 November 2010 are revoked and the following orders are made:
1. Pursuant to s 29 of the Workers Compensation Act 1987, the compensation paid by the first respondent to the Public Trustee shall be apportioned as follows:
(a)Gurmeet Kaur $ 35,000
(b)Babaljeet Kaur $ 30,000
(c)Rashveen Kaur Sandhu $ 35,000
(d)Darveen Kaur Sandhu $ 30,000
(e)Harbendar Kaur Gurden Singh $177,100
1(A). All interest accrued from the investment of the lump sum since 17 June 2008 be distributed between the abovementioned dependants on a pro rata basis according to their proportionate entitlement to the lump sum.
1(B). Leave is granted to the parties to re-apply in the event that further orders are required to give effect to the decision in respect of interest.
3. The first respondent is to pay the costs of the applicants and the second and fourth respondents.
All other orders in the Certificate of Determination are confirmed.
COSTS
The first respondent is to pay the costs of the first and second appellants and the second, third and fourth respondents to the appeal.
Judge Keating
President
4 February 2011
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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