On Sunset Pty Ltd v Shrestha - [2024] NSWPIC 349

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	On Sunset Pty Ltd v Shrestha & Ors [2024] NSWPIC 349
APPLICANT:	On Sunset Pty Ltd
FIRST RESPONDENT:	Rajesh Sama Shrestha
SECOND RESPONDENT:	Saru Sama Shrestha
THIRD RESPONDENT:	BKW
FOURTH RESPONDENT:	Prajesh Sama Shrestha
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	1 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (WC Act); Interpretation Act 1987; Personal Injury Commission Act 2020; Personal Injury Rules 2021; claim for lump sum death benefit pursuant to section 25 and interest pursuant to section 109 of the WC Act; claims by alleged de facto partner and parents of deceased worker; younger brother of deceased worker made no claim of dependency; application by third respondent for de-identification or redaction of decision, opposed by first and second respondents; consideration of section 21C of the Interpretation Act 1987; TNT Group 4 Pty Limited v Halioris; Kaur v Thales Underwater Systems Pty Ltd; Wratten v Kirkpatrick; Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited; Haidary v Wandella Pet Foods Pty Ltd, Dynamix Pty Ltd and Burrangong Foods Pty Ltd; Held – third respondent was de facto partner of deceased worker at date of death; first, second, and third respondents were partly dependent on deceased worker; no other persons were dependent on deceased worker; lump sum death benefit apportioned as 15% to first respondent; 15% to second respondent; 70% to third respondent; interest ordered on lump sums from date each claim duly made at 6.35% per annum; non-publication order made in respect of third respondent; liberty to apply in respect of funeral expenses, calculation of interest.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant is to pay to the first respondent, pursuant to s 25(1) of the Workers Compensation Act 1987, the sum of $129,352.50. 2. The applicant is to pay to the second respondent, pursuant to s 25(1) of the Workers Compensation Act 1987, the sum of $129,352.50. 3. The applicant is to pay to the third respondent, pursuant to s 25(1) of the Workers Compensation Act 1987, the sum of $603,645. 4. 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. 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 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. 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 third respondent at the rate of 6.35% per…

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: [2024] NSWPIC 349
Decision Date: 1 July 2024

CaseChat Overview and Summary

In the matter of On Sunset Pty Ltd v Shrestha, the court was called upon to adjudicate a workers compensation claim involving the estate of a deceased worker, On Sunset Pty Ltd, the employer, and various claimants asserting dependency on the deceased worker. The claims for a lump sum death benefit and interest were brought pursuant to sections 25 and 109 of the Workers Compensation Act 1987. The respondents included the alleged de facto partner and parents of the deceased worker, while the younger brother of the deceased did not pursue a claim for dependency. Additionally, the third respondent applied for the decision to be de-identified or redacted, which was opposed by the other respondents. The court was tasked with determining the dependency status of the respondents and the appropriate apportionment of the lump sum death benefit and interest.

The legal issues before the court encompassed the interpretation of the Workers Compensation Act 1987, the Interpretation Act 1987, and the Personal Injury Commission Act 2020, along with the Personal Injury Rules 2021. The primary questions were whether the first, second, and third respondents were dependent on the deceased worker and, if so, to what extent. Furthermore, the court had to consider the application for de-identification or redaction of the decision, weighing privacy interests against the public's right to access legal judgments. The court's analysis drew on precedents such as TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd, Wratten v Kirkpatrick, Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited, and Haidary v Wandella Pet Foods Pty Ltd, Dynamix Pty Ltd and Burrangong Foods Pty Ltd.

The court found that the third respondent was indeed the de facto partner of the deceased worker at the time of his death, while the first and second respondents were also partly dependent on the deceased worker. The court determined that no other individuals were dependent on the deceased. Consequently, the lump sum death benefit was apportioned as 15% to the first respondent, 15% to the second respondent, and 70% to the third respondent. Interest on the lump sums was ordered from the date each claim was duly made, at a rate of 6.35% per annum. The court granted the third respondent's application for a non-publication order to protect their privacy, while allowing the respondents liberty to apply in respect of funeral expenses and the calculation of interest. This decision balanced the need for privacy with the public's interest in legal transparency and fairness in workers compensation claims.

Orders