Mudgee Explorer Tours Pty Ltd v Clarke - [2021] NSWPIC 41

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mudgee Explorer Tours Pty Ltd v Clarke [2021] NSWPIC 41
APPLICANT:	Mudgee Explorer Tours Pty Ltd
FIRST RESPONDENT:	Micheal Albert Clarke
SECOND RESPONDENT:	Lachlan Robert Thomas Brydon
THIRD RESPONDENT:	Riley Albert Clarke
MEMBER:	Mr John Wynyard
DATE OF DECISION:	23 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for interest on section 25 death benefit; dependants sought rate commensurate with Supreme or District Court practice, or at Public Trustee rate for best performing fund; phrase “duly made” in section 109 interpreted in Kaur v Thales Underwater Systems Pty Ltd and following cases said to be too restrictive; Held- Kaur v Thales Underwater Systems Pty Ltd followed; doctrine of stare decisis applied.
DETERMINATIONS MADE:	1. Interest is to be paid by the applicant on a pro rata basis to the apportionment agreed on 12 January 2021 at the rate of 2% per annum as follows: (a) With regard to the first respondent from 23 December 2020 to 12 January 2021. (b) With regard to the second respondent from 21 December 2020 to 12 January 2021. (c) With regard to the third respondent for the one day, 11 January 2021 to 12 January 2021.

STATEMENT OF REASONS

BACKGROUND

On 12 January 2021 agreement was reached between Micheal Albert Clarke, the first respondent, Lachlan Robert Thomas Brydon, the second respondent and Riley Albert Clarke the third respondent regarding the apportionment of the lump sum benefit payable pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act) following the tragic death of Ms Kayla Clarke on 23 August 2019.
At the arbitration hearing on 12 January 2021 an application was made for interest to be paid on the lump sum and a timetable for written submissions was duly set. The submission of the dependants was a joint submission made by Mr J McEnaney, counsel for the third respondent, and the submissions in reply were prepared by Mr Stephen Harris of Messrs Moray & Agnew solicitors.

LEGISLATION

Section 25 of the 1987 Act provides:
“25 Death of worker leaving dependants
(1) If death results from an injury, the amount of compensation payable by the employer under this Act shall be -
(a) the amount of $750,000 (the ‘lump sum death benefit’), which is to be apportioned among any dependants who are wholly or partly dependant for support on the worker or (if there are no such dependants) paid to the worker's legal personal representative, and
(b) in addition, an amount of $66.60 per week in respect of-
(i) each dependant child of the worker under the age of 16 years, and
(ii) each dependant child of the worker being a student over the age of 16 years but under the age of 21 years.
(2) Payments in respect of a dependant child under subsection (1) (b) shall continue-
(a) except as provided by paragraph (b) - until the child dies or reaches the age of 16 years, whichever first occurs, or
(b) in the case of a…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] NSWPIC 41
Decision Date: 23 March 2021

CaseChat Overview and Summary

In the case of Mudgee Explorer Tours Pty Ltd v Clarke, the dispute arose from a claim for interest on a section 25 death benefit under the Workers Compensation Act. The deceased, who was a worker of Mudgee Explorer Tours Pty Ltd, was represented by their dependants who sought interest on the death benefit at a rate similar to that applied in the Supreme or District Court practice, or at the Public Trustee rate for the best performing fund. The defendants, Mudgee Explorer Tours Pty Ltd, opposed this claim, arguing that the phrase “duly made” in section 109 should be interpreted in the manner set out in Kaur v Thales Underwater Systems Pty Ltd and subsequent cases. The matter was brought before the court to determine the correct interpretation of the phrase “duly made” and the applicable rate for interest on the death benefit.

The court had to decide whether the phrase “duly made” in section 109 should be interpreted narrowly, as per the decision in Kaur v Thales Underwater Systems Pty Ltd, or more broadly to encompass the rates proposed by the plaintiffs. Additionally, the court needed to determine whether the doctrine of stare decisis should be applied in this instance, and if so, how it should be applied in relation to the interpretation of the phrase in question. The court was also required to consider the principles of equity and fairness in determining the appropriate rate for interest on the death benefit.

In delivering the judgment, the court held that the doctrine of stare decisis should be applied, and the interpretation of the phrase “duly made” as set out in Kaur v Thales Underwater Systems Pty Ltd and subsequent cases should be followed. The court found that the narrow interpretation of the phrase, which was consistent with the decisions in those cases, was the correct approach. Consequently, the court rejected the plaintiffs' submission that the interest rate should be set at the Supreme or District Court practice rate, or at the Public Trustee rate for the best performing fund. The court ruled that the interpretation of the phrase “duly made” and the applicable interest rate should remain consistent with the decisions in Kaur v Thales Underwater Systems Pty Ltd and following cases.

As a result of this decision, the court dismissed the plaintiffs' claim for interest on the section 25 death benefit at a rate higher than that determined by the narrow interpretation of the phrase “duly made.” The defendants were not required to pay any additional interest to the plaintiffs, and the decision in Kaur v Thales Underwater Systems Pty Ltd and subsequent cases remained the applicable precedent for interpreting the phrase and determining the interest rate on death benefits under the Workers Compensation Act.

Orders