On Sunset Pty Ltd v Shrestha
[2024] NSWPIC 555
•4 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | On Sunset Pty Ltd v Shrestha & Ors [2024] NSWPIC 555 |
| APPLICANT: | On Sunset Pty Ltd |
| FIRST RESPONDENT: | Rajesh Sama Shrestha |
| SECOND RESPONDENT: | Saru Sama Shrestha |
| THIRD RESPONDENT: | BKW |
| FOURTH RESPONDENT: | Prajesh Sama Shrestha |
| SENIOR EMBER: | Kerry Haddock |
| DATE OF DECISION: | 4 October 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; Personal Injury Commission Act 2020 (PIC Act); request for reconsideration of Certificate of Determination providing for payment of lump sum payable pursuant to section 25(1) of the 1987 Act, apportioned to first, second and third respondents, and interest, to those respondents; first and second respondents have lodged appeal against decision; applicant unable to pay awards until appeal is determined; applicant seeks orders that award monies be paid to NSW Trustee and Guardian; first, second, and third respondents did not seek to make submissions in respect of the request for reconsideration; consideration of section 57(1) of the PIC Act; Samuel v Sebel Furniture Limited; Railcorp NSW V Registrar of the WCC of NSW; Held – decision reconsidered; applicant ordered to pay lump sum and interest to NSW Trustee and Guardian, to be held on trust for first, second and third respondents pending outcome of appeal. |
| DETERMINATIONS MADE: | The Commission determines: 1. The Certificate of Determination dated 1 July 2024 is reconsidered, pursuant to s 57(1) of the Personal Injury Commission Act 2020. 2. The applicant is to pay the sum of $129,352.50, pursuant to s 25(1) of the Workers Compensation Act 1987, to the NSW Trustee and Guardian, to be held on trust pursuant to 3. The applicant is to pay the sum of $129,352.50, pursuant to s 25(1) of the Workers Compensation Act 1987, to the NSW Trustee and Guardian, to be held on trust pursuant to 4. The applicant is to pay the sum of $603,645, pursuant to s 25(1) of the Workers Compensation Act 1987, to the NSW Trustee and Guardian, to be held on trust pursuant to 5. The applicant is to pay, pursuant to s 109(1) of the Workplace Injury Management and Workers Compensation Act 1998, interest on the lump sum payable to the first respondent at the rate of 6.35% per annum from 3 April 2024 to 28 June 2024, in the amount of $1,952.28, to the NSW Trustee and Guardian, to be held on trust pursuant to s 85(1)(a) of the Workers Compensation Act 1987, for the benefit of the first respondent. 6. The applicant is to pay, pursuant to s 109(1) of the Workplace Injury Management and Workers Compensation Act 1998, interest on the lump sum payable to the second respondent at the rate of 6.35% per annum from 3 April 2024 to 28 June 2024, in the amount of $1,952.28, to the NSW Trustee and Guardian, to be held on trust pursuant to s 85(1)(a) of the Workers Compensation Act 1987, for the benefit of the second respondent. 7. The applicant is to pay, pursuant to s 109(1) of the Workplace Injury Management andWorkers Compensation Act 1998, interest on the lump sum payable to the third respondent at the rate of 6.35% per annum from 26 March 2024 to 28 June 2024, in the amount of $9,949.35, to the NSW Trustee and Guardian, to be held on trust pursuant to s 85(1)(a) of the Workers Compensation Act 1987, for the benefit of the third respondent. |
STATEMENT OF REASONS
BACKGROUND
This matter was the subject of a determination dated 1 July 2024.
On 1 July 2024, I made orders for apportionment of the lump sum death benefit payable by the applicant, pursuant to s 25(1) of the Workers Compensation Act 1987 (the 1987 Act) between the first, second and third respondents, the fourth respondent having made no claim on the lump sum. I also made orders for payment by the applicant of interest on the awards, pursuant to s 109(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The first and second respondents have lodged an appeal against my decision, pursuant to
s 352(1) of the 1998 Act.On 15 August 2024, the applicant lodged a request that I reconsider my decision (the request for reconsideration), pursuant to s 57(1) of the Personal Injury Commission Act 2020 (the PIC Act) and issue an amended Certificate of Determination (COD).
The applicant requested that the payments ordered in the COD dated 1 July 2024 be made to the NSW Trustee and Guardian (NSW Trustee), pursuant to s 85(1)(a) of the 1987 Act.
On 18 September 2024, the respondents were requested by a staff member of the Personal Injury Commission (the Commission) to file their responses to the request for reconsideration as a matter of urgency, so that the matter could be referred to me.
On 19 September 2024, the third respondent advised that she did not intend to make any submissions in relation to the request for reconsideration.
On 23 September 2024, the first and second respondents advised that they did not intend to make any submissions in relation to the request for reconsideration.
The fourth respondent is represented by the solicitors who also act on behalf of the first and second respondents. As noted above, he made no claim for the lump sum, and therefore has no interest in the outcome of the request for reconsideration.
ISSUE FOR DETERMINATION
Although none of the interested respondents has lodged a response to the request for reconsideration, the Commission must still be satisfied that it is appropriate to amend the COD in accordance with the applicant’s request.
Accordingly, the issue in dispute is whether the COD should be reconsidered and an amended COD issued.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
As noted above, the applicant has lodged a request for reconsideration; and each respondent who has an interest in the outcome has advised that he or she does not seek to make any submissions in response to the applicant’s request.
In accordance with the usual practice with respect to requests for reconsideration, I have determined the matter “on the papers”, and without holding a preliminary conference, given that the interested respondents did not wish to make any submissions; and the applicant’s submissions were provided with the request for reconsideration.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) COD dated 1 July 2024;
(b) Request for reconsideration dated 15 August 2024.
FINDINGS AND REASONS
SUBMISSIONS
Applicant
The applicant’s written submissions remain with the Commission’s file. I will therefore provide a brief summary of the submissions.
The applicant submitted that the Commission’s power to grant its request is contained in s 57(1) of the PIC Act, which permits the Commission to “alter or amend” a COD. (Emphasis in original).
The applicant submitted that it accepted liability in respect of the death of the worker, Prajjwol Sama Shrestha, and would have been permitted, pursuant to s 85(1)(a) of the 1987 Act, to immediately pay to the NSW Trustee the lump sum payable pursuant to s 25(1)(a) of the Act. However, it should be inferred that no dependant requested that it do so.
As a consequence of the appeal, and the failure by the first, second and third respondents to provide complete and signed electronic funds transfer (EFT) forms to enable payment of the sums ordered and, given that s 83(1) of the 1987 Act provides that compensation must be paid by EFT, the applicant has been unable to pay the sums ordered.
Since 1 July 2022 [sic], the applicant has been liable pursuant to s 110 of the 1998 Act to pay interest on the sums ordered to be paid. The liability to pay interest will continue until the appeal has been determined and compensation has been paid, once the respondents entitled to the compensation have provided EFT forms.
The applicant submitted that this has resulted in prejudice, in terms of an additional liability that results solely from the dispute between the dependants.
The applicant submitted that the amendment to the COD would permit the applicant to pay the compensation to the NSW Trustee, thereby terminating its ongoing liability to pay interest.
The applicant submitted that the respondents who were entitled to the compensation would not be prejudiced by the amendment, given that any fees charged by the NSW Trustee would be offset by the interest earned on the sums paid to it.
SUMMARY
Section 57 of the PIC Act provides:
“57 Reconsideration of decisions of Commission
(1) The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.
(2) If after the making of a decision by the Commission (and without limiting subsection (1)), the President is satisfied that the decision contains an obvious error, the President may-
(a) alter the decision to correct the error, or
(b) direct a registrar to alter the decision to correct the error.
(3) Without limiting subsection (2), if the decision is contained in a certificate, the President may-
(a) issue a replacement certificate with the error corrected, or
(b) direct a registrar to issue a replacement certificate with the error corrected.
(4) If a decision is altered, the altered decision is taken to be the decision and notice of the alteration is to be given to the parties in the proceedings in the manner directed by the President.
(5) If a replacement certificate is issued, the certificate prevails over any previous certificate.
(6) Examples of obvious errors in a decision are where-
(a) there is an obvious clerical or typographical error in the text of the notice or statement, or
(b) there is an error arising from an accidental slip or omission, or
(c) there is a defect of form, or
(d) there is an inconsistency between the stated decision and the stated reasons.”
Section 57(1) of the PIC Act is in essentially the same terms as the former, now repealed, s 350(3) of the 1998 Act.
Acting Deputy President Roche, as he then was, considered a request for reconsideration, pursuant to s 350(3) of the 1998 Act, in the matter of Samuel v Sebel Furniture Limited.[1]
[1] [2006] NSWWCCPD 141; (2006) 5 DDCR 482 (Samuel).
ADP Roche said in Samuel that it was relevant to bear in mind the flexible nature of proceedings before the Workers Compensation Commission, as set out in s 354 of the 1998 Act. Section 354 of the 1998 Act has also been repealed, but s 43 of the PIC Act provides:
“43 Procedure before Commission generally
Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
ADP Roche listed in Samuel nine principles that are relevant to the reconsideration power for which s 350(3) of the 1998 Act provided:
(1) The section gives the Commission a wide discretion to reconsider its previous decisions (Hardaker v Wright & Bruce Pty Ltd)[2];
(2) While the word “decision” is not defined in s 350, it is defined for the purposes of s 352 to include “an award, order, determination, ruling and direction.” In ADP Roche’s view, “decision”, in s 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
(3) While the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (Schipp v Herfords Pty Ltd);[3]
(4) One of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (Hilliger v Hilliger);[4]
(5) Reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained during the first proceedings is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (Maksoudian v J Robins & Sons Pty Ltd);[5]
(6) Given the broad power of “review” in s 352 (which was not universally available in the Compensation Court of New South Wales) the reconsideration provision in s 350(3) will not usually be the preferred provision to be used to correct errors of fact law or discretion made by Arbitrators;
(7) Depending on the facts of the particular case, the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd[6] may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings;
(8) A mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd)[7], and
(9) The Commission has a duty to do justice between the parties according to the substantial merits of the case (Hilliger and s 354(3) of the 1998 Act).
[2] (1962) SR (NSW) 244.
[3] [1975] 1 NSWLR 413.
[4] (1952) 52 SR (NSW) 105 (Hilliger).
[5] [1993] NSWCC 36; (1993) 9 NSWCCR 642.
[6] [1981] HCA 45; (1981) 147 CLR 589 (Anshun).
[7] [1953] WCR 29.
Samuel was referred to with approval in Railcorp NSW v Registrar of the WCC of NSW.[8] Harrison AsJ said:
“It is my view that the discretion of the Court, when it conducts a reconsideration, is wide ranging. Overall, the task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. One of the circumstances where a reconsideration can take place is where there is fresh evidence (as opposed to more evidence)”. (At [56]).
[8] [2013] NSWSC 231.
Considering the relevant principles enunciated in Samuel:
(a) the reconsideration power applies to an award of the Commission;
(b) there has been no delay in the applicant bringing the application for reconsideration. The application was lodged shortly after the appeal against my decision was lodged by the first and second respondents. The appeal gave rise to the application for reconsideration;
(c) Granting the request for reconsideration will not prolong the litigation. The appeal lodged by the first and second respondents remains to be determined. The applicant does not seek to re-litigate the matter. Rather, it seeks a variation in the order as to payment of the award;
(d) There is no Anshun estoppel, and
(e) There has been no mistake or oversight by a legal adviser.
The Commission has a duty to do justice between the parties according to the substantial merits of the case.
Neither the first, second nor third respondent has made any submission that the COD should not be reconsidered.
The applicant’s submissions in support of the reconsideration application are summarised above.
The applicant is constrained from paying the award monies until the appeal, which it has not brought, is determined. The interests of the first, second, and third respondents in the award monies will be protected by the NSW Trustee.
In the circumstances, I am persuaded that it is appropriate that I reconsider my decision and provide for payment of the awards in favour of the first, second, and third respondents to be made to the NSW Trustee.
The orders are set out in the COD.
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