On Sunset Pty Ltd v Shrestha

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 annum from 26 March 2024 to 28 June 2024, in the amount of $9,949.35. 7. Pursuant to rule 132 of the Personal Injury Rules 2021, the third respondent is to be de-identified before the decision is published. 8. The parties have liberty to apply with respect to any claim pursuant to s 26 of the Workers Compensation Act 1987 for payment of funeral expenses and the calculation of the amounts payable as interest.

STATEMENT OF REASONS

BACKGROUND

The worker, Prajjwol Sama Shrestha, was employed by the applicant, On Sunset Pty Ltd (On Sunset), as a bar worker. I will refer to the worker as Prajjwol, and to the claimants and various other individuals who have given evidence in the matter by their given names, to avoid confusion, meaning no disrespect to them.
On 21 June 2022, Prajjwol was injured in an explosion at the applicant’s premises. He died of his injuries on 6 July 2022.
By letters dated 23 August 2022, Bond Legal, acting for Rajesh Sama Shrestha (Rajesh), the worker’s father, Saru Sama Shrestha (Saru Sama), the worker’s mother, and BKW, who claims to be the worker’s de facto partner, wrote to EML (Employers Mutual NSW Ltd), requesting a copy of “the entire file”, and that EML contact them in relation to the matter. Prajjwol was described as BKW ’s spouse.
By letter to the first and second respondents, Rajesh and Saru Sama, dated 11 October 2022, the applicant’s insurer, Insurance and Care NSW (icare) accepted liability to pay the lump sum death benefit of $862,350 and funeral expenses up to $15,000. The letter contained the standard request that Rajesh and Saru Sama help icare identify how many dependants were eligible for compensation.
On 20 October 2022, Bond Legal lodged with icare a fatality notification form, on behalf of BKW . The box that asked, “If in a de facto relationship, have you attached evidence of the relationship?” was ticked “yes” (although it does not appear that evidence was attached). BKW was described as the worker’s partner. Rajesh and Saru Sama were named as other persons who were financially dependent on the worker.
By letter dated 1 November 2022, the solicitors for the applicant requested of Bond Legal particulars of potential claimants, and various documentation. They advised they assumed that no person claiming to have been dependent for support on the worker requested at that stage that payment of the lump sum death benefit be made to the NSW Trustee and Guardian.
On 11 November 2022, Bond Legal lodged two further icare fatality notification forms. These forms were lodged on behalf of Rajesh and Saru Sama. Each named the other dependant as BKW , who was described as the worker’s partner.
The fourth respondent, Prajesh, is the worker’s brother. He makes no claim for compensation.
On 20 July 2023, the applicant lodged an Application in Respect of Death of Worker (Application).
The first respondent lodged his Reply on 9 August 2023.
The second respondent lodged her Reply on 9 August 2023.
The fourth respondent lodged his Reply on 9 August 2023.
The third respondent lodged her Reply on 14 August 2023.

ISSUES FOR DETERMINATION

The parties agree that the following matters are in dispute:
(a)    whether the first, second and third respondents were dependent for support on the worker;
(b)    the apportionment of the lump sum death benefit, and
(c)    whether interest is payable on the lump sum death benefit, and, if so, for what period/s and at what rate/s interest is payable.

PROCEDURE BEFORE THE COMMISSION

The matter has had a protracted history.
The matter was listed for preliminary conference on 21 September 2023. Mr Harris appeared for the applicant, instructed by Ms Ryder of EML and Ms Dean of icare. Mr Hallion of counsel, instructed by Ms Kafle, appeared for the first and second respondents. Ms Delaney appeared for the third respondent. An interpreter in the Nepali language, Mr Pramod Chitrakar, also attended.
The first and second respondents were granted leave to issue a Notice for Production on the applicant; and the matter was listed for further preliminary conference on 12 October 2023.
On 12 October 2023, the appearances were as before. Ms Nutan Maharaj, interpreter, also attended.
The first, second, and third respondents were unable to agree on a proposed apportionment of the lump sum.
Any party that sought to rely on the documents which had been produced by the applicant pursuant to the Notice for Production was directed to lodge and serve an Application to Admit Late Documents (AALD), attaching the documents, on or before 26 October 2023.
Directions were also made for the provision of written submissions. The parties were advised that, at the conclusion of the time allowed for submissions, the matter would be determined “on the papers”.
In response to this direction, the first and second respondents lodged not only the documents produced by the applicant and their submissions, but also additional evidence.
The third respondent objected to the admission of the additional evidence, or, in the alternative, sought further time to lodge her submissions.
I accordingly listed the matter for further preliminary conference on 13 December 2023.
Mr Harris appeared for the applicant. Mr Hallion, instructed by Ms Kafle, appeared for the first and second respondents. Mr Bannister and Ms Delaney appeared for the third respondent.
For reasons that were provided at the conference, and recorded, the first and second respondents were granted leave to rely on the additional evidence lodged with their submissions. Directions were made for the further conduct of the matter.
The matter was listed for further preliminary conference on 19 February 2024. Mr Harris appeared for the applicant, instructed by Mr Estreich of EML and Ms Dean of icare.
Mr Hallion, instructed by Ms Kafle, appeared for the first and second respondents. Mr Bannister and Ms Delaney appeared for the third respondent. Mr Isham, interpreter, also attended. Directions were made for the service of further evidence, and the matter was listed for conciliation/arbitration hearing.
The matter was listed for conciliation/arbitration hearing by the Teams platform on
30 April 2024. Mr Harris appeared for the applicant, instructed by Ms Ryder and Ms Dean.
Mr Hallion appeared for the first, second and fourth respondents, instructed by
Ms Kafle. Ms Warren of counsel, instructed by Ms Delaney, appeared for the third respondent. The first, second and third respondents attended. Ms Seema Shrestha and
Mr Rishi Bhattarai, interpreters, also attended.
Due to the time taken in conciliation, it was agreed that the parties would provide written submissions, noting that the first and second respondents had already lodged some submissions. The parties were advised that, at the conclusion of the time allowed for submissions, the matter would be determined “on the papers”.
The parties’ submissions have now been received.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply by first respondent and attached documents;
(c)    Reply by second respondent and attached documents;
(d)    Reply by third respondent and attached documents;
(e)    Reply by fourth respondent and attached documents;
(f)    AALD dated 18 September 2023 and attached documents, lodged by the first and second respondents;
(g)    AALD dated 26 October 2023 and attached documents, lodged by the first and second respondents;
(h)    AALD dated 1 December 2023 and attached documents, lodged by the first and second respondents;
(i)    documents lodged by the third respondent, dated 2 February 2024, which were not lodged with an AALD, but were accepted by the Commission;
(j)    documents lodged by the third respondent, dated 6 February 2024, which were not lodged with an AALD, but were accepted by the Commission;
(k)    AALD dated 9 February 2024 and attached documents, lodged by the first and second respondents;
(l)    documents lodged by the third respondent, dated 26 March 2024, which were not lodged with an AALD, but were accepted by the Commission, and
(m)     AALD dated 3 April 2024 and attachments, lodged by the first and second respondents.

Oral evidence

There was no application to call oral evidence or cross-examine any party or witness.

FINDINGS AND REASONS

Evidence of the first respondent, Rajesh Sama Shrestha

Rajesh has made several statements/statutory declarations, the first of which is dated
22 May 2023.
He owns a tailoring shop in Kathmandu, but business was extremely slow, and he was unable to concentrate on his work, due to depression following the worker’s death. He and his family “barely [made] ends meet.”
He was notified of the worker’s accident by Prajjwol’s cousin, Ms Anisha Joshi, and Prajjwol’s acquaintance, BKW (the third respondent).
He suffered from depression, hypertension, and insomnia. Creditors were pursuing him because he had taken out a loan to send his son to higher education in Australia.
Prajjwol sent regular remittances, enabling him to pay off his debts and provide for his family. They relied on these remittances for financial support. He was concerned that he may have to sell his home and land to pay his debts.
He sought medical attention after Prajjwol’s death. He also enrolled in a meditation centre. Prescribed medication partially restored his normalcy, but he was still struggling to manage his financial obligations and was losing sleep over them.
His son’s acquaintances in Australia conducted fund-raising, and the funds were transmitted to a bank account in Nepal.
Rajesh’s statutory declaration is also dated 22 May 2023.
The statutory declaration is in similar terms to the statement. It referred to the provision of documents proving transactions on Rajesh’s bank account.
Rajesh’s second statement is dated 10 July 2023.
He and his wife had two sons. Prajesh was born in 2006 and was 17 years old. He was currently in twelfth grade at college. He was dependent on Rajesh and his wife. He was not dependent on Prajjwol and was not pursuing a claim.
He and his wife were completely dependent on Prajjwol since he went to Australia. Prajjwol sent money on a regular basis that was sufficient to pay their household expenses and other everyday living expenses.
He was not aware of any other potential dependants, other than himself, his wife, and Prajjwol’s girlfriend. Prajjwol called them almost every day. He never brought up that he was in a relationship with BKW. He was aware that his son and BKW were living together in the same apartment.
They agreed to take out bank loans to supplement their income in support of Prajjwol’s visa application, as they did not have enough money for his tuition fees in Australia.
During the 13 day period of mourning, BKW did not come to Nepal to take part. They were shocked that none of her relatives paid their respects, although they extended an invitation.
They knew BKW’s family, who lived around five minutes away. They were not aware of this de facto relationship until “such allegations and claims were made” after their son’s death.
When they discovered that BKW claimed to be their son’s de facto, he and his wife attempted to speak to her about the relationship. She never confirmed that they were in a de facto relationship. The revelation that they were in a relationship with the intention of getting married and starting a family came as a complete surprise.
As BKW was sharing the apartment with Prajjwol, they were informed by Pradip Shrestha, his wife’s nephew, who lived in Australia, that BKW needed to be included in the claim. “It is expected” that the lease agreement would be in both names, as Prajjwol and BKW were equally responsible for the rent.
They instructed Bond Legal. In discussions, “she” (BKW ) said she was going to claim one-third from the claim. They discussed this with Pradip and instructed their solicitors accordingly.
If Prajjwol and BKW were in a de facto relationship, they would not have held separate student visas. They were saving, paying tuition fees, and holding visas separately.
As far as he knew, BKW was his son’s girlfriend. Their relatives in Australia told them that she would therefore get something from the claim.
He did not know if Prajjwol had formalised his de facto relationship with the Department of Immigration. They had instructed their solicitors to seek that information.
None of their close relatives in Australia had given any indication of a de facto relationship. They were not aware as to who organised the death certificate that included BKW as de facto partner.
Some of his son’s workmates visited them in Nepal. They transferred the funds raised after his son’s death to his bank account.
BKW had not taken part in their son’s first annual death anniversary, “shraddha”.
He and his wife had instructed Bond Legal to represent them both, and the potential conflict of interest had been raised with them. They confirmed they would share any benefit awarded equally.
Both he and his wife had received treatment from psychiatrist Dr Surendra Sherchan since July 2022.
Dr Sherchan provided a report dated 15 November 2022.
Dr Sherchan reported that Rajesh consulted him on 15 July 2022, and had since been under his care. He was suffering from major depressive disorder of moderate degree, precipitated by the death of his son. He had made progress but needed follow-up and psychosocial support.

Evidence of the second respondent, Saru Sama Shrestha

Saru Sama’s first statement is dated 22 May 2023. Much of it repeats Rajesh’s evidence.
She worked with her husband in their tailoring shop, but business was poor, and she was unable to concentrate due to depression and an increase in sugar levels caused by the death of her first child. They were barely scraping by.
Saru Sama’s statutory declaration is also dated 22 May 2023. It is in similar terms to that of Rajesh.
Saru Sama’s second statement is dated 10 July 2023. The evidence is largely the same as that of Rajesh.
She had called BKW numerous times regarding the “shraddha ceremony”. BKW had not put in any effort to be part of the ceremony. She was really saddened by BKW’s behaviour.
She had become socially isolated. She often got tension headaches. She was easily irritated and had lost weight due to lack of appetite. She suffered from sleep disturbances. She was always depressed.
She had been receiving treatment from Dr Sherchan since July 2022.
Dr Sherchan’s report, dated 15 November 2022, is in largely identical terms to the report relied on by Rajesh.

Evidence of the third respondent, BKW

BKW ’s first statement is dated 19 May 2023. She was then 23, having been born in 2000.
She met Prajjwol when she was about 17. To the best of her memory, she was in Year 10. They were part of the same community and lived about 10 minutes from each other but had not met before.
She sent Prajjwol a friend request on Facebook, and he accepted. They formed a friendship that developed into a relationship. From the time she met Prajjwol, he provided her with comfort and support.
Prajjwol’s dream was to move to the United States of America (USA) to work hard and build a life. As their relationship formed, that included marrying her and starting their own family.
Prior to meeting Prajjwol, she planned to stay in Nepal. He changed her perspective, because he talked about experiencing other peoples’ cultures and seeing more of the world.
Prajjwol was her partner. He really cared about her, his career, and his family. He had a dream to build a home for his parents.
Prajjwol’s application for a visa for the USA was declined. He was successful in obtaining a visa for Australia.
She was with Prajjwol at the temple when he received the phone call advising that the visa had been approved. They were both excited, but also teary because it meant she was staying in Nepal without him. He told her he would cancel his visa and stay, but she told him he could not do that. She hoped to eventually join him.
Prajjwol went to Australia in 2017 and they had a long-distance relationship until she came to Australia in 2019 on a student visa.
She studied an Advanced Diploma in Information Technology (IT) at the Australian National Institute of Education.
Her first job in Australia was as a shop assistant, and she currently worked as a customer service assistant.
Prajjwol was the only person close to her in Australia. He studied IT and was looking for a job (in IT). He was completing post-University studies at the time of his death. He also worked while he was studying.

During the pandemic and lockdown, Prajjwol lost his job. She continued working and transferred him about $5,000 so he could pay his college fees and rent. They were always there for one another when one needed help.
At the time of his death, Prajjwol worked at On Sunset. He also worked at Harris Farm, doing both jobs leading up to his accident.
On 21 June 2022, Prajjwol finished work at Harris Farm at about 2:00pm. He called to say he was going home for lunch before going to work at On Sunset. He asked her to make him some noodles, which he had at around 2:30pm. He told her he would finish work at about 8:00pm.
She called Prajjwol at 7:30pm and he said it was not very busy and he would be home soon. She made dinner for him. After 8:00pm, she rang him again and he said it was really busy, and he might finish at about 10:00pm.
At about 11:15pm she received a call from Prajjwol’s friend, Anish Khadka [sic], who told her there had been an accident. To her understanding, Prajjwol’s colleague could not get through to her, so they called Anish to tell him to inform her. He said Prajjwol had gone to Concord Hospital.
She rang Prajjwol’s work but no one picked up the phone. She rang Ramila (Shrestha) and Anisha, Prajjwol’s cousins. She then met Anisha and her partner, Subin, and they went to Concord Hospital.
She rang Harris Farm the next morning to tell them what had happened to Prajjwol.
She and Anisha visited Prajjwol the next morning in Concord Hospital. She was told Prajjwol needed to be transferred to Royal North Shore Hospital, where he was put on a ventilator.
On 6 July 2022, she had a bad feeling about Prajjwol’s condition and went to see him at the hospital. While she was sitting with him, he developed a problem in his brain. The staff told her it was unlikely he would survive any longer.
The family gathered at the hospital. Prajjwol passed away at 11:30am on 6 July 2022.
She arranged for the funeral expenses of $6,600 to be paid out of Prajjwol’s bank account. She sought to have the expense reimbursed as his de facto partner.
She came to Australia in 2019 only because of Prajjwol. She had no family or friends here. Her family did not want her to move but she wanted to be with Prajjwol.
Prajjwol was then living with two others his age in a three bedroom unit at Parramatta, and she moved in with him and his roommates. They lived there for about 1.5 years.
She did not know much about Australia, so Prajjwol supported her with everything. She had some savings but needed them for an emergency in the future. He paid for her groceries and shopping and bought her a mobile phone and sim card.
When they went to a restaurant with friends, or did any activities, Prajjwol paid for everything. He always wanted to pay when they went out.
She did not have job when she arrived, so Prajjwol paid her share of the rent for few months until she got a job.
Whoever had money that week would pay their rent in the share unit. For example, if Prajjwol had just paid his college fees, she would pay rent for them both, and when she was low on money, he would pay.
In 2021, they had to move out of the unit in Parramatta, so she and Prajjwol moved with their roommates to a three bedroom unit in Harris Park.
She and Prajjwol then became joint tenants of a two bedroom unit in Parramatta, where they lived together on their own. This was their situation when Prajjwol passed away. The statement attached a copy of the rental agreement.
About six months or so before Prajjwol passed away, they opened a joint bank account. They had discussed getting married and wanted to start saving. They opened a joint account so they could buy groceries and other items and manage their money together. She understood Prajjwol was the main account holder.
When just the two of them lived together, they both paid for the water and electrical bills. They continued to have their individual accounts, into which their wages were paid.
She relied on Prajjwol’s general and financial advice, and emotional support, particularly when she moved to Australia and when she had problems at work.
Prajjwol’s family wanted them to settle down and get engaged. When he passed away, they had plans to return to Nepal and get engaged. Neither had been back since coming to Australia.
So far as she was aware, Prajjwol’s potential dependants were only herself and his parents. Prior to her being legally represented, she met with his parents and their lawyers, and it was agreed they would seek to have the lump sum apportioned equally between the three.
To her knowledge, Prajjwol’s brother was dependent on his parents. Prajjwol sent money to his parents from Australia.
BKW ’s second statement is dated 14 August 2023, in response to the evidence of the first and second respondents.
She did not agree that Prajjwol sent regular payments to his family, but he provided money to them when they needed or asked for it, and this could be quite frequent.
As she understood it, the manager of On Sunset held a fundraiser that raised approximately $20,000. So far as she was aware, the funds were sent to Prajjwol’s family. She was not involved in the fundraising.
She did not agree that Prajjwol’s parents were completely dependent upon him. He had to work to support himself, and when requested would provide help to his family.
It made her very upset that Prajjwol’s parents suggested they were not aware she and Prajjwol were in a relationship, and she was shocked at this allegation. From the time she arrived in Australia, it was made very clear to them that she and Prajjwol were in a relationship, up until the day he passed away.
On many occasions she and Prajjwol spoke to his parents together. She also spoke to Prajjwol’s mother often because they had a good relationship.
Prajjwol’s relatives in Nepal and his parents’ neighbours were aware of the relationship, because of what they told their family and friends. Her parents, relatives, and parents’ neighbours also knew they were in a relationship.
She was very upset that she did not receive even a call from Prajjwol’s parents following the incident, to see how she was coping. She was in Australia by herself. She could not return to Nepal for various reasons, including issues with her student visa and the cost. She was not fit mentally to return because she was in deep shock and grief. It was clear from Rajesh’s statement that she was in a de facto relationship with Prajjwol, which was why his family expected her to return to Nepal.
It was untrue that her family did not pay their respects to Prajjwol. She had been told by members of her family and relatives that they attended the funeral.
She recalled being contacted by Pradip, who said he had a lawyer friend, Bharat Pokharel. He created a meeting via WhatsApp with her, Pradip and Prajjwol’s parents. They agreed that any compensation received would be divided three ways. This agreement was made with advice from Bharat.
In about early 2022, she and Prajjwol had several conversations with his parents about when they might get married. When they told his mother of their plans, she suggested that as they had been in a relationship for a long time, they should return to Nepal in September 2022 and finalise their marriage, rather than simply get engaged.
She and Prajjwol decided they would get engaged in 2022 and then return to Australia to continue studying and work on their careers, before getting married a couple of years later.
All their friends and acquaintances, including Radmila and Pradip, knew she and Prajjwol were in a de facto relationship.
She had one conversation with Saru Sama and told her she would attend shraddha in Nepal. However, her student visa was going to expire, and she did not have the money to travel. Her situation had become more difficult since the loss of Prajjwol and their shared living expenses.
At the time she signed her prior statement, she had had conversations with Prajjwol’s parents, and they were happy with her decision and their agreement regarding apportionment of the death benefit, and supportive of her. Now they were not taking her calls.
Even though she was upset at what had been said by Prajjwol’s parents, she did not wish to change the arrangement they had reached. She hoped this would lead to a better relationship with people who were close to Prajjwol, including his parents and relatives.
BKW ’s next statement is dated 2 February 2024.
She had been provided with photographs and videos lodged by Prajjwol’s family.
She was mentally unstable in the period following Prajjwol’s death. She had no sense of what she was doing or should do. She felt numb, like there was nothing left in her life. “No hopes, no dreams”. She did not sleep well, had no appetite, and felt like she had completely lost herself.
She did not see her life anymore without Prajjwol. They had been in a long term relationship. They commenced an intimate romantic relationship when they were in Nepal. They were committed to spending the rest of their lives together as husband and wife.
She attached screenshots of her facetiming with Prajjwol in February 2019 and March 2019.
Elice (later referred to as Alice), who was in some of the pictures and videos, came into her life and took her out of that dark lonely room she found herself in after Prajjwol passed away.
She still did not know what to do or how to act, so she tried to spend time with Elice, because she did not want to disrespect the brightness and energy she was putting on her to try and help her recover. She went out to dinners and nightclubs. She needed Elice’s support. She did not feel it was fair that people could judge her for what she did during this most difficult period in her life.
She was in Australia away from all her family, by herself. Her friends were the only people she had to help, and they tried to support her as best they could. Elice was one of them.
The psychological shock she felt when she heard about Prajjwol’s accident, and when he was in hospital, led to an emotional breakdown.
After Prajjwol’s death, his family totally changed in their behaviour to her. She was left out of their lives and alone. She suffered alone a lot. Anisha Joshi had not been in touch with her since shortly after Prajjwol’s death.
She had been unable to continue her University studies since Prajjwol’s death. She had enrolled to start again from the beginning of her bachelor’s degree in February 2024.
After the conference in the Commission on about 12 October 2023, Prajjwol’s mother phoned to ask her not to pursue her claim. After that, she saw Pradip and Ramila at a festival and Pradip told her the claim could take two or more years to finish. He was persuading her to take whatever offer was made by Prajjwol’s parents.
She was very upset with Prajjwol’s parents.
She had attached screenshots from her Instagram account, showing her and Prajjwol together during the period from 12 March 2022 to 20 May 2022.
She and Prajjwol were still in a domestic relationship until the time of his death. It saddened her that accusations, diminishing their relationship, had been made against her.
BKW ’s next statement, also dated 2 February 2024, is a response to the evidence of Anisha Joshi and Pradip.
Ramila is Prajjwol’s cousin, and also BKW’s distant cousin. The terms “cousin” and “brother or sister” are sometimes used interchangeably in her culture.
It is incorrect that Pradip was involved as next of kin and family member, and informant to Service NSW. Ramila was noted as the informant on the death certificate, which correctly described BKW as Prajjwol’s de facto partner. She was not involved in its preparation.
She and Prajjwol were both busy and did not go out much. She saw Ramila every few months. She saw Pradip only on special occasions. After Prajjwol’s death, she visited Ramila only once or twice a month before the claim started.
She found it difficult to believe that Pradip only found out she was Prajjwol’s girlfriend after his death, because his wife was clearly aware of the relationship and confirmed it in the death certificate.
Whenever she and Prajjwol met Pradip and Ramila, the conversation often turned to when they were getting married and their future plans.
Both Pradip and Ramila reached out to her after Prajjwol’s death. Pradip told her he had received a lot of contact from Prajjwol’s parents and other family members asking him to support them in their claim.
She recently rang Ramila because she was upset with Pradip’s statement, as she and Ramila had been very close before this happened. In Nepal, Ramila was a close neighbour and they saw each other all the time.
Ramila was in shock that such a statement had been made by her husband. She said she had not seen it and was not aware it had been made. Ramila said she should discuss this with Pradip.
She could recall meeting Anisha on two occasions in Nepal. She was not a close member of Prajjwol’s family and friend group.
She did not believe Prajjwol had regular contact with Anisha. She lived with him and was unaware of such contact. He never mentioned Anisha or said he had been in contact with her. He mentioned when he had spoken to his parents or other family. They spoke to both her family and his family together on occasion.
She could recall Anisha coming to their apartment only two or three times. She rejected the suggestion that she did nothing around the house. She and Prajjwol were both students. He worked two jobs and worked a job that was mainly in the mornings [she may have been referring to herself as working in the mornings]. She did whatever she could to buy groceries, keep the apartment clean, and tried to make sure she cooked dinner before Prajjwol went to his night job.
She recalled one occasion after Prajjwol passed away when she was not coping very well. She called Anisha who came and stayed overnight. She thought this was the only time Anisha came to the apartment.
Anisha would have no knowledge of what she was doing. She did not have time to party or go out with friends because she was studying, working, and trying to look after Prajjwol.
She had attached photographs of her birthday celebrations in February 2020. Prajjwol got her the cake.
It was totally untrue that she and Prajjwol were “just a casual boyfriend and girlfriend and nothing more than that” and “never had a good relationship.”
She had also attached photographs of Prajjwol’s birthday celebrations in November 2020.
She assumed that Anisha had been pressured by members of Prajjwol’s family to support his parents in their claim. This would be expected in their culture.
She and Prajjwol had planned to move to a regional location when that became necessary under his visa. She had no problem where she lived under the terms of her visa, and it was always her intention to go with him.
Nischal (Sharma) was one of a number of people who came to see her the day after Prajjwol’s death. To the best of her recollection, he was the only one who went into Anisha’s house.
She was aware of the memorial get together held by Prajjwol’s employer. She spoke to Anisha about whether she should go, as she was not feeling up to it. To the best of her recollection, Anisha told her she should not go as she was not well enough, and Anisha would go and tell her what happened.
She and Prajjwol knew each other’s phone passcodes. They shared everything.
She paid the funeral expenses by transferring the money from Prajjwol’s account. She was only able to do this because they knew each other’s banking details. None of them had the funds to pay, and she accessed Prajjwol’s account for that reason.
The person in the photograph referred to by Anisha was not Nischal, who in any event was not her boyfriend. He was her friend from college. She had not seen him since the end of 2022. She mainly saw him at college, and she did not go back that year after Prajjwol’s death.
She and Prajjwol did not post anything on social media about getting engaged or married because they had not become engaged. They had discussed their intention to do that with their families, who were aware of it.
She and Prajjwol were still living together and planning for their engagement when he had his accident. She had attached photographs of his birthday celebration in November 2021.
On her birthday in February 2022, Prajjwol came home during his shifts and brought her a cake, a photograph of which she attached, and which she had posted to her Instagram account.
She and Prajjwol rented the apartment in Parramatta together. They had two girls stay with them for a couple of weeks to help them out. They did not know them from Nepal. To the best of her memory, one was named Reshma Nagar. It was Reshma who went to the hospital with them. If the girls had lived with them for a longer time, they would have been required to tell the estate agent they were living there.
After Prajjwol’s accident, Anisha contacted her regularly to see how she was and encourage her to go out. She took her out until she returned to Nepal a few months later. Prajjwol’s mother asked if she could give Anisha his laptop and phone to take back for his brother, which she did.
When Anisha came back, she had little contact with her, and Anisha blocked her number. This all happened after the claim had been made.
BKW ’s next statement is dated 26 March 2024.
She referred to the statutory declaration of Ramila dated 7 February 2024. She rejected the allegation that she was not Prajjwol’s de facto partner at the time of his passing.
She had attached a screenshot of text messages between her and Prajjwol on the evening of 21 June 2022. She told him she missed him, had put his dinner in the fridge to have when he came home, and was going to bed.
She referred to the statement of Prajesh dated 29 January 2024.
She rejected the allegation that she had a romantic relationship with Nischal Sharma. They were nothing more than friends from college. She last saw him more than 12 months ago. He told her he was planning to return to Nepal.
They had not been in contact since she assumed he left Australia. She tried to contact him so he could provide a statement but had been unable to do so.
She had initially been in contact with Nischal online and by phone when they were doing the same classes at college. He knew Prajjwol from going to college together. She first met Nischal face to face after Prajjwol’s passing, at Anisha Joshi’s house. To the best of her recollection, she met him two or three times after Prajjwol’s passing.
She referred to the statutory declaration of Pooja (Jenny) Shrestha dated 7 February 2024.
She first met Jenny in about October 2023 when she was out with her other friends. They became friends.
In January 2024, she needed to move out of her apartment as the lease had ended. Jenny helped her to move in with her at Regents Park in a share house with Jenny’s friends. She and Jenny shared a room for about one week, but that became very uncomfortable.
She had a disagreement with Jenny and moved out. She had not had any contact with Jenny from that time.
She rejected what Jenny said about her relationship with Nischal. She did ask Jenny to help her contact him to provide a statement for her claim.
She was not in a relationship with Sanjog Baral. She went out with him a few times, but it did not work out. She had not been in contact with him for a couple of months.
The experience of making the claim had been extremely distressing. She felt she had been persecuted by Prajjwol’s family because of the claim. This had brought great distress to her family, and she had lost trust in others because of the untrue statements made about her.
She did not understand why Prajjwol’s family was treating her like this when they had advised her to see their lawyers to start the claim process for all of them.
The first suggestion to make a claim came from Pradip. He put Bharat Pokharel from Bond Legal in contact with her, and she received several calls from him. He asked her to provide documents, including Prajjwol’s visa status card.

On 13 August 2022, Pradip created a WhatsApp group that included him, her, Mr Pokharel, and Prajjwol’s parents. They used that to communicate about the claim. Mr Pokharel advised that the claim benefit would be equally shared.
She went to the offices of Bond Legal where Mr Pokharel and Samita Kafle helped her prepare the notification form. She was advised to include Prajjwol’s parents as dependants, which she did.
In early 2023, Ms Kafle told her she needed to get an independent lawyer, as they could not represent both her and Prajjwol’s parents. She was advised by Mr Bannister that she first contacted his office on 1 February 2023.

Evidence of the fourth respondent, Prajesh Sama Shrestha

Prajesh’s first statement is dated 15 September 2023. Prajesh was then 17 years old, having been born in 2006.
He was doing well in his studies and would be completing year 12 in eight months’ time. He could then choose medical school or engineering.
He was financially dependent on his parents. All the household expenses had been paid by the worker.
He had read written advice from Mr Christopher Barry KC, dated 8 September 2023, which had been translated into his native language.
His parents had supported him financially in the past and would continue to do so until he finished his education. He would continue to reside with them until then.
He did not wish to make a claim for apportionment of the lump sum death benefit. He requested that if the Commission determined that he was entitled to any apportionment, it be given to his parents.
He confirmed that the statement had been taken in front of a Nepalese public notary, and without the involvement of his parents.
Prajesh’s second statement is dated 29 January 2024.
On 15 January 2204, he was contacted via Facebook Messenger by Jenny, who introduced herself as a friend of BKW. She left a message, a copy of which he attached, using words to the effect, “Hello, call me I need to tell you something really important.”
He responded to the message on 17 January 2024.
Jenny told him she had been assisting BKW in making her claim and drafting emails to her solicitors, and BKW’s response to evidence in the case.
He did not know Jenny before she contacted him. She informed him that she had assisted BKW as follows:
(a) drafting many emails for BKW to send to her lawyers, and
(b) helping BKW draft an email in December 2023 to try to explain the photos and videos by saying she was suffering so much as a result of Prajjwol’s death that partying was the only way to get out of the stress.
Jenny confirmed BKW was in a romantic relationship with Nischal Sharma while Prajjwol was alive, but they were not in a relationship anymore.
Jenny told him Nischal had blocked BKW from all his social media. BKW was trying to get in touch with him so he could confirm he did not know her. He had attached a copy of the translation of the recording he received from Jenny.
In December 2023, BKW requested Jenny to draft an email to her lawyers that she was suffering psychologically as a result of Prajjwol’s death, and therefore partying with her friends.
BKW was dating Sanjog Baral. She told Jenny she was really happy with him. She had sent videos with him to Jenny, which Jenny forwarded. He had attached one photo, but there were other videos and photos of BKW and Sanjog, and messages to him from Jenny.
Jenny told him BKW was pretending to be a surviving de facto for the money, while the relationship had ended in December 2021.
Jenny told him BKW “shared with her friend” that she would buy land and settle “here” and buy gifts for her friends with the insurance money.
Jenny forwarded to him a voice message recording left by BKW. It is in Nepali and referred to what BKW had been “up to” during December 2023 which disputed a relationship with his brother and referred to her having a relationship with Nischal Sharma at the time of his brother’s passing.
He forwarded the recording to his parents’ solicitor. He also requested Jenny to speak to Samita Kafle.

Translation of recording

The recording is dated 18 January 2024.
I have not reproduced the entire contents.
“Female 1” said, “that case is going on strongly.”
There are derogatory comments about “Alice” and “Prajjwol’s buddy sister”. “This whore was told by this Alice that I was having affair with Nischal.”
She needed to talk to Nischal. He had blocked her from everything. She needed “to make him understand well. Like, if anyone ask any question, to say that he doesn’t know me. Because I had helped him a lot at that time, but he may have changed now, right?”
She could not trust Nischal, but it would be better if she had a chance to talk with him. She needed to collect all the evidence somehow by 20 to 22 December. She was told there was a lot going on on the other side as well.
“If Nischal comes, I won’t get anything. And on top of all these [sic], tragedy going on like this…”

Evidence of Pradip Shrestha

Pradip is married to Ramila, of whom the worker was “cousin brother”. His statutory declaration is dated 3 November 2023.
Ramila is also related to BKW, who is her “cousin sister”.
After Prajjwol’s death, Pradip was involved as next of kin and family member as well as the informant of deceased to Service NSW.
He did not have a day to day relationship with BKW and Prajjwol. They would only meet on special occasions. He knew BKW and Prajjwol were living together in the same apartment. He only found out she was his girlfriend after his death.
While completing the death certificate online, he could not find an option to put BKW as Prajjwol’s girlfriend. He did an online search and used the replacement “de facto”. He put that in the death certificate and submitted the form online. He was “in a bit of a rush” so Prajjwol’s body could be sent to Nepal.
He confirmed BKW was only Prajjwol’s girlfriend and not a surviving de facto, as she claimed to be. He was not aware that de facto relationship is considered a spousal relationship. He misunderstood “de facto” to be a relationship of a boyfriend and girlfriend.
He was “more than happy” to confirm his statement with Service NSW so a new death certificate could be issued.

Evidence of Anisha Joshi

Ms Joshi is a “cousin sister” (maternal uncle’s daughter) of the worker. Her statutory declaration is dated 25 November 2023.
Prajjwol came to Australia in 2017.
She came to Australia in 2018. Prajjwol and her friend picked her up at the airport.
Prajjwol helped her to open a bank account, apply for a Tax File Number, and bought a sim card for her phone.
They celebrated Dashain and Diwali together in 2018. They met up for special occasions like birthdays and festivals.
BKW came to Australia in 2019. She briefly knew BKW in Nepal as BKW and Prajjwol were neighbours. She first met BKW in Australia on her birthday. Prajjwol and BKW were living together, and he brought her with him.
She met with BKW and Prajjwol only on special occasions. However, she talked to Prajjwol regularly.
Whenever she visited Prajjwol’s house, she noticed that BKW never did anything around the house. Prajjwol did the shopping, cleaning, and cooking, “pretty much everything”. She used to help Prajjwol when he invited her to his house.
Every time she spoke to Prajjwol, he mentioned “about his fight with BKW.” They fought almost every day. BKW used to go out with her friends every night. Prajjwol worked until 1:00pm and she would leave the house around that time.
Prajjwol never told her about them getting engaged or married. They were just casual boyfriend and girlfriend.
Prajjwol mentioned the joint account, which they opened so the rent expenses could go directly from there. He and BKW had separate accounts where their wages were paid.
During all her dealings with Prajjwol and BKW, they used to fight a lot. Their day to day affairs could be confirmed by the two girls living in the same apartment.
Around the end of December 2021, BKW told her she had a big fight with Prajjwol, and was leaving the house, as he found out about her affair with the guy she was studying with. BKW came to live with her that night. She admitted she could not control her feelings for Nischal.
She called Prajjwol and he told her everything about Nischal. He used to threaten Prajjwol via text messages not to come between him and BKW. He also went to Prajjwol’s house to tell him to stay away from BKW. Prajjwol told her BKW used to party with Nischal and other friends until 4:00am all the time.
During all her conversations with Prajjwol from 2018 to 2022, he never mentioned getting engaged. He was a very responsible and disciplined son. He was working hard to pay college fees and repay debts his parents borrowed. He was sending them money regularly.
BKW never mentioned her intention of getting engaged or married to Prajjwol.
Prajjwol had just graduated and planned to go to designated regional areas for permanent residency purposes. He had no intention to nominate BKW as his partner/spouse in his application. They never had a good relationship.
On 6 July 2022, almost everyone who knew Prajjwol came to visit him. Nischal was continuously calling BKW. She was constantly talking to him.
BKW stayed at her place on 6 July 2022. On 7 July 2022, Nischal came to pick her up. BKW said she was going to the park with him for some fresh air and left with him.
They were grieving for Prajjwol and saw BKW partying hard after a few days. She was upset to see her videos with friends on social media.
BKW did not attend the funeral ceremony held by Prajjwol’s employer. She was just his casual girlfriend and never in a serious relationship with him. She was never in a de facto relationship with him.
The hospital staff and police asked if anyone knew Prajjwol’s phone passcode. BKW did not know, and Prajjwol did not know hers. There was a lot of conversation regarding the funeral expenses of around $6,000. BKW tried to log into Prajjwol’s phone but did not know his passcode. She managed to get hold of his personal bank account and paid for the funeral.

Evidence of Krisha Bista

Ms Bista’s statement is dated 31 January 2024.
In about 2019, she and her partner rented a three bedroom apartment in Parramatta. They were looking for a couple to occupy the third bedroom, which was how they met Prajjwol.
Prajjwol told her his partner was coming to join him soon. They rented the third room to him, and when BKW came to Australia they shared the room. They lived there for about a year.
After the lease ended, they rented another apartment in the area and Prajjwol and BKW moved with them to that apartment. When that lease was due to end, Prajjwol and BKW decided to get their own apartment.
At about this time, she moved to the USA. She returned to Australia in about March 2022.
To her observation, Prajjwol and BKW shared a normal de facto relationship. It was apparent that they loved each other. They made dinners for each other. They celebrated their cultural festivals together. They had their arguments, but they were nothing out of the ordinary in that regard.
She recalled that Prajjwol and BKW talked in general terms about getting married someday, but they had no specific plans at that time.
After the accident, BKW rang to tell her what happened. She and her partner went to see Prajjwol. A few days later, BKW called to say Prajjwol might not make it. She and her partner rushed to the hospital, and Prajjwol sadly died.
She had been in contact with BKW from time to time to see how she was going.

Evidence of Dennis Margono

Ms Margono was a friend of Prajjwol. Her statement is dated 5 February 2024.
She and Prajjwol met while they were both working at Harris Farm. They became best friends and frequently walked to the station together after work.
She met BKW a number of times. Prajjwol told her they had been boyfriend and girlfriend for a long time. They started their relationship in Nepal.
She understood that Prajjwol and BKW lived together in Parramatta when BKW followed Prajjwol to Australia. She understood they were living in a domestic relationship.
She, Prajjwol, and BKW usually met every fortnight, sometimes for lunch, dinner, or karaoke. They sometimes went to the house of their friend, BKW Maharjar.
She had attached photographs of BKW Maharjar’s birthday celebration on 14 March 2022. BKW and Prajjwol were “certainly” still a couple at this event.
Prajjwol told her he and BKW intended to eventually move interstate and get married. It was two weeks before his accident that Prajjwol told her of his plans.
Like all couples, BKW and Prajjwol had arguments and disagreements, but they always made up, and appeared to be devoted to each other.
After the accident, BKW texted her at about 1:00am to tell him Prajjwol had been in an accident and was in hospital. She read the text at about 7:00am and called BKW.
She went to Concord Hospital the same day. BKW was upset, crying in shock, and did not know what to do. She told BKW she needed to tell Prajjwol’s family.
She was present when BKW called Prajjwol’s family by videocall. BKW spoke to Prajjwol’s mother and father, who were also crying.
BKW told her Prajjwol had cousins in Australia. She never saw Prajjwol’s family members there. She only saw BKW. She and BKW were there every day. BKW was always there when she was there.
She and BKW were not initially permitted to see Prajjwol, due to his condition. They asked to be allowed to see him and were permitted into the ICU (intensive care unit). She was very concerned and took a photograph. She wanted BKW to send it to Prajjwol’s family members in Australia so they would visit. She felt upset and disappointed that his family was not there when he needed them most.
She had attached photographs of herself and BKW, taken after the doctor told them to say goodbye to Prajjwol, because he was not going to make it.
She had remained in contact with BKW. They usually caught up by text or phone. BKW had said things like, “if I can change things in the past I would not let him go to work that day.” She could not move on. She was still very upset about the loss of Prajjwol and talked about him.

Evidence of Sunita Shrestha

Sunita is BKW’s sister. Her statement is dated 6 February 2024.
Her parents and Prajjwol’s parents live in the same village in Balkot, Nepal.
Before Prajjwol went to Australia, he and BKW were boyfriend and girlfriend. She thought they were in a relationship for at least seven years when the accident happened.
BKW was already in a relationship with Prajjwol when she moved to Australia, and they lived together when she went to Australia.
When BKW moved to Australia, she talked with both Prajjwol and BKW. They talked by videocall and sometimes with her parents.
Prajjwol and BKW regularly talked to her and her parents about having a wedding in Nepal. They shared with her that they were making plans to get engaged and married. BKW told her they had told Prajjwol’s parents about wanting to get married, and their plans.
Before Prajjwol’s death, BKW told her she and Prajjwol would contact his parents and they were aware of their intention to marry.
She had talked with Prajjwol’s parents but was not really close to them. As far as she understood, they were aware of BKW’s and Prajjwol’s intention to marry. However, she had not talked about those plans with his parents or other family members. She still talked with his parents casually because the shops they went to were close to her.
She had not really had any other contact with Prajjwol’s parents since his death. She understood her parents had had some contact with them. She did not know why they were trying to distance themselves from BKW.
She attended Prajjwol’s funeral ceremony in Nepal with her family.
She was in regular contact with BKW. BKW had told her about the impact the allegations by Prajjwol’s family had had on her. She did not know why they had started to behave this way with BKW.
Before Prajjwol’s death, and even after, his parents and BKW had a very good relationship. BKW had good family ties with them before the claim was made. Then everything changed.
BKW went to Australia on a student visa and struggled a lot after Prajjwol’s death. The problems with his family had made her mental situation worse.

Evidence of Maheshwor Shrestha

Maheshwor is BKW’s father. His statement is dated 6 February 2024.
He knew Prajjwol’s parents, as they lived about five minutes away. He and Rajesh studied together up to Year 7 or 8. They always had a good relationship until this claim arose.
After Prajjwol’s death, he and Rajesh still met up and saw one another. Since this case started, he believed the relationship “has become a little bit not so good.”
Prajjwol’s father avoided him if he saw him on the road. Before the claim he used to go to the shop to see Rajesh regularly. These days, even if he went there, Rajesh tried to avoid him.
Since BKW was in about Year 9, she was in a relationship with Prajjwol as boyfriend and girlfriend. Prajjwol asked her to follow him to Australia and join him there.
Prajjwol had arranged to pick BKW up at the airport, and for them to live together. He said he was going to look after her for Maheshwor. Prajjwol arranged everything for BKW to follow him. He contacted her all the time.
Prajjwol and BKW told him and Dil Maya (BKW’s mother) they were intending to come back to Nepal for Dashain, to have their engagement, in November 2022. They and Prajjwol’s family were aware of this plan.
He had to talk informally with Rajesh about the engagement plans. They decided that once Prajjwol and BKW came back for Dashain, they would make formal plans and have a big celebration.
Since the claim commenced, BKW told him Prajjwol’s parents said she and Prajjwol were not in a relationship. That was not correct. Their friends in Balkot knew they were in a relationship and intended to get married.
BKW told him the way Prajjwol’s mother spoke to her recently made her upset, and her behaviour towards BKW had totally changed.
BKW had shared that she was missing Prajjwol. She said she got depressed. She sometimes said she wanted to come back, but her family encouraged to stay.

Evidence of Dil Maya Shrestha

Dil Maya’s statement is dated 6 February 2024.
Before Prajjwol’s death, she and her husband talked regularly with his parents. They had a good relationship.
Prajjwol’s parents were certainly aware he and BKW were in a relationship with the intention of getting married. Prior to Prajjwol’s death, she and her husband had an informal talk about the plan to return to Nepal to get engaged and married.
There had been no formal discussions about the arrangements before Prajjwol’s death, but his mother told her she knew they had a plan to come back to Nepal to get engaged.
When her family went to Prajjwol’s funeral, his mother said words to the effect of “they had all those plans to come here and get engaged but this has happened to us.”
BKW shared everything with her, including her plans to return to Nepal and do the ceremonies, have their engagement, and other things.
She was aware that after the claim was made, Prajjwol’s parents said they did not know about the domestic relationship between him and BKW. Even his relatives were saying these things to BKW. They were torturing her, and she was suffering a lot. She was very worried for BKW.
Her daughter went to Australia just for Prajjwol and was now by herself. The behaviour by his family was very bad and BKW was stressed, alone without family support. When Prajjwol was in hospital, BKW cried all day and night, and they cried there (in Nepal).
Prajjwol and BKW were in a boyfriend and girlfriend relationship since high school. She and her husband had no intention of sending BKW overseas. When Prajjwol went to Australia, he insisted she join him, and they decided to send her.
Even when Prajjwol and BKW were in Nepal, they met on a regular basis. BKW would go whenever he called her. Her relatives told her they had seen them together all the time.

She understood that when BKW went to Australia she would be living with Prajjwol. BKW told her they were living together in Australia.
When they were both in Australia, Prajjwol told her words to the effect of, “Don’t worry Aunty, I will look after her. You do not need to worry about her.” He told her he and BKW had plans to come back to Nepal for their engagement.

Evidence of Ramila Shrestha

Ramila is Prajjwol’s “cousin sister.” Her statement is dated 7 February 2024.
She had been nominated as next of kin and was dealing with Concord Hospital regarding Prajjwol’s admission. She was also dealing with the insurance after Prajjwol’s death.
BKW was made aware of her rights after she got the letter from “the insurance” in July 2022.
Her husband, Pradip Shrestha, lodged the death certificate online.
She knew Prajjwol and BKW lived in the same apartment and were casual girlfriend and boyfriend.
BKW was not involved in the claim process, as Ramila was next of kin, and her husband helped her with the process, as she was quite stressed.
When Pradip was lodging the death certificate, he told her he could not find an option to put BKW as Prajjwol’s girlfriend. They did not realise the difference between girlfriend and de facto and submitted the certificate online.
BKW was certainly not Prajjwol’s de facto, as she was claiming to be. She apologised for the error when lodging the death certificate.
She and Pradip only met up with Prajjwol and BKW on special occasions. From all her visits and discussions with them, she was never aware of there being an engagement or wedding.
BKW recently sent messages asking if she had a minute to talk. She called BKW, who mentioned the statement that Pradip provided to Bond Legal. She told her to talk to Pradip if she had any issues with him providing the statement.
She never told BKW she was shocked. She was well aware of the statement provided by Pradip and agreed with his statement about their relationship status.
As far as she knew, “with all my dealings with” BKW and Prajjwol, they were never in a de facto relationship.

Evidence of Pooja (Jenny) Shrestha

Jenny’s statement is dated 7 February 2024.
She became friends with BKW in July/August 2023. They became best friends in a short period. BKW shared all her personal affairs with her.
BKW told her about Prajjwol, their relationship, and how he died. She felt sorry for BKW and supported her for her insurance claim.
BKW told her about her relationship with Nischal Sharma while Prajjwol was alive, as she was not happy with Prajjwol.
In December 2023, BKW called and said her relationship with Nischal Sharma at the time of Prajjwol’s death “out broke” [sic] and she was scared she would not get a cent from the claim. She needed that money at any cost.
BKW’s relationship with Nischal had broken and he had blocked her. BKW gave her Nischal’s social media details and mobile number to contact him for her. BKW requested her to text him not to open his mouth. She kept calling almost every day in December 2023 for an update.
BKW told her she wanted to meet Nischal in person, but he was in Nepal.
On 18 December 2023, BKW recorded two voice messages to send to Nischal. They were in Nepali. She had attached the recordings.
On 11 December 2023, BKW told her she needed to send to her lawyer her reply about the photos and videos submitted by Bond Legal.
She had helped BKW draft emails to her lawyers on many occasions. She again drafted a message to send, a copy of which she attached.
BKW was in a new relationship with Sanjog Baral. She had shared their romantic pictures and videos with her.
She had realised BKW was a very unethical person. She was manipulating her and dragging her to do things for her so she could claim money. She decided to cut BKW off completely because she did not want to have anything to do with her and her claim.
She felt bad that she had been supporting wrongdoing. She contacted Prajesh via Facebook on 18 January 2024. She sent him the voice recordings BKW left on 18 December 2023 and told him everything that had been happening in the background. She had attached the voice recording.
Prajesh requested her to contact his parents’ lawyer. She contacted “Samita” and sent all the evidence of communications between herself and BKW.
Jenny has provided a statutory declaration dated 3 April 2024.
She had received on 9 February 2024 Facebook messages from BKW, which she had translated to English.
I have not reproduced the message in full.
BKW could not “believe that you will go this far”. She called Jenny a “fucking bitch”, accusing her of being jealous of her current relationship.
Jenny advised BKW to choose her words wisely and called her a “gold digger” and “parasite.” Once she saw her “true colour” she felt sorry “for that poor soul and guilt for supporting you…”
Jenny could not stand anyone who used love for financial and materialistic things. Shekhar and Saurav “did same on me. I can’t let it happen for that poor departed soul or anyone.” She had supported BKW in the beginning, before she knew the whole story.
Jenny accused BKW of using Sanjog. Jenny was “just save humanity and support truth and fair”.
Jenny asked “Why the fuck you give trouble to that poor family…They have none to support for their entire future and present, you have lots of ways. Stop torturing them for just couple of grants [sic]. Shame on you.”
Jenny stated that BKW had deleted all the messages, but she had taken a screen shot.

Voice recordings of BKW for Nischal

I have not reproduced the entirety of the document.
BKW advised that it was really urgent. She knew things did not work out between them, but she considered Nischal a good human being. She trusted that he would not interfere with her present and future.
“This lady Alice” had exposed everything about her past and interfered with her present and future. “As you know”, her case with Prajjwol was still going on. “On that note”, if anyone asked him about her, all he needed to answer was that he did not know her, “please just say that much for me.”
“…no matter who asks you about me, if you know BKW, just simply tell them that you do not know me, I do not know this girl, I never had any relationship with her, just say that much. If you do this for my life, for real if you ever need me in the future, I will be there for you OK.”
“…just say this much, I do not need anything else from you…Please I will fold my hands for you or even touch your feet OK, if anyone asks any question, I just want to be happy for my future.”

Text messages between Jenny and BKW

There are copies of text messages between Jenny and BKW, some of which are in Nepali and have been translated by Jenny.
Jenny asked, “Do you want me to deal with him?” in an apparent reference to Nischal Sharma, as there is a screen shot of what appears to be his Instagram profile.
Jenny told BKW that Nischal was in Nepal, and “Just calm down.”
On 11 December 2023, BKW sent Jenny a text saying, “It’s very urgent.”
BKW told Jenny she went to her lawyer yesterday. They asked her to email them with a reply. She asked Jenny to re-send the reply she drafted, as she had formatted her mobile and lost all Jenny’s messages.
Jenny then sent BKW a message which was in essentially the same terms as the evidence given by BKW regarding her “partying” with Alice. Jenny told BKW to write all this in your email.
BKW responded that she would send it. She asked if Jenny loved her, to which Jenny responded, “What are you saying?” BKW said all the people who had loved her had betrayed her and “You too will not leave me girl.”
BKW sent Jenny a message that “now only Nischal left.” There is a number said to be Nischal’s phone number. She asked if she should talk to him by creating a group.

Worker’s employment records

On 10 November 2021, the worker nominated Anish Kaski, described as a friend, to his employer as his emergency contact.

Residential tenancy agreement

The worker and the third respondent entered into a residential tenancy agreement for premises at Parramatta, which was to commence on 17 November 2021 and end on
17 May 2022. The document was signed by both the worker and BKW on
16 November 2021.
The occupants of the premises were to include no more than two persons.

Worker’s death certificate

Prajjwol’s death certificate states that his marital status at the date of his death was “de facto”. His de facto is stated to be BKW, and his age when he was married was 20 years. The full name of his “spouse” was BKW.
The informant is named on the death certificate as Ramila Shrestha, and her relationship to the deceased was “sister”.

Worker’s visa and first and second respondents’ financial records

Prajjwol was granted a student (temporary) visa on 23 August 2017. He was issued with a Visa Grant Fact Sheet.
Among the conditions on the worker’s visa were that he was required to notify the Department of Immigration and Border Protection (the Department) of any changes to his details as soon as possible. These changes “may” include his name, passport, contact details, address, or family members. If he did not notify the Department of his new details, “this can have serious consequences for you.”
The listed changes have been circled, and “family members” has been underlined, it is assumed by either the first or second respondent or their legal representatives.
By letter dated 21 July 2017, Rajesh and Suresh Raj Joshi (Prajjwol’s maternal uncle), declared that they were Prajjwol’s sponsors in respect of his application for a student visa.
The sponsors declared they had sound financial ability to meet their “sponsorship commitment and obligation in support” and attached financial documents.
There is confirmation from Agricultural Development Bank Ltd on 25 July 2017 that Rajesh had been availing overdraft facilities in the name of BKW & Rajesh Store in the amount of NPR (Nepalese rupees) 3,700,000. The interest was NPR 29,194.52.
By letter dated 25 July 2017 to the Australian High Commission (High Commission) in India, officers of Nabil Bank certified that Rajesh had a closing balance in his account of the equivalent of AUD 44,777.13, which was also the available balance.
Prajjwol wrote an undated letter to the Visa Offices, High Commission, in support of his application.
Relevantly, Prajjwol stated that his father and maternal uncle were fully sponsoring him, and his father had undertaken the overdraft facilities referred to above. In addition to that amount, his father had a reliable and regular source of income from the business of clothes and cottons. He ran S & R Tailor, with an annual income of NPR 1,260,183.20, equivalent to AUD 15,475.66. This part of the letter was underlined.
Prajjwol also stated that they had rented a house from which they gained NPR 240,000, equivalent to AUD 2,947.32.
In addition, Prajjwol’s father owned property totalling NPR 31,805,200, equivalent to AUD 388,234.47, from which they could easily have access to an emergency loan or cash. Therefore, Prajjwol could “assure you that I will not have any financial problem for my whole period of study in Australia.”
Prajjwol intended to return to Nepal, where he could earn more than in Australia, and where he would have family support. He was the elder son and had responsibilities towards his parents.
The first respondent and the second respondent have given evidence that Prajjwol sent money transfers, which reached their bank accounts, on many occasions. Their statements in this regard are identical.
Rajesh’s records from Nabil Bank, covering the periods from 1 January 2018 to
1 January 2022, and 15 December 2016 to 11 February 2023, have been provided.
Some credit entries are underlined (without explanation), but it is either not possible to ascertain the provenance of the deposit, or the name next to it is not that of Prajjwol. Some entries read “Nepal remit”.
There are 11 entries underlined, although one is clearly the amount provided by way of overdraft facility to allow Prajjwol to go to Australia.
There are no bank records for Saru Sama. It may be that she did not have a separate account, but that was not her evidence.

Social media posts/screenshots

The third respondent has submitted screenshots of the worker, herself with the worker (and sometimes including others) between 14 January 2019 and 20 May 2022. There is a picture of BKW’s birthday cake in February 2022.
The first and second respondents submitted posts of the third respondent either eating with friends or “clubbing” (as described in the posts) on 15 July 2022, 16 July 2022,
9 August 2022, 14 August 2022, 15 August 2022, and 18 August 2022.

SUBMISSIONS

The parties have provided written submissions, which I will summarise.

First and second respondents

The first and second respondents (hereafter under this heading, the respondents) submitted that the issues were:
(a)    whether the third respondent was eligible by reason of there being a de facto relationship, and, if so
(b)    whether the third respondent satisfied dependency, and, if so,
(c)    the extent, if any, of the apportionment of the death benefit to the third respondent.
The respondents submitted the evidence did not enable a finding of a de facto relationship, but in any event the third respondent’s dependency was de minimis and so insufficient as to exclude any apportionment to her.
The respondents submitted that dependency is a question of fact and is not determined solely by looking at the circumstances as they existed at the date of death but includes “past events and future probabilities”.[1]
[1] Aafjes v Kearney [1976] HCA 5 (1994) 180 CLR 199; Kaur v Thales Underwater Systems Pty Ltd [2011] NSWWCCPD 6 (Kaur).
The respondents submitted that all of the circumstances of a claimed de facto relationship, including the matters in s 21C(3) of the Interpretation Act 1987 (Interpretation Act), are to be taken into account. A de facto relationship will involve a permanent and mutual commitment to a shared life.
The respondents submitted that, while relevant, the third respondent’s subjective belief cannot be the determinative factor as to whether a de facto relationship existed.
The respondents submitted that the discrepancies in the third respondent’s evidence were themselves of no consequence but were more grave in the context of the overall pattern that emerged in her evidence, in which she asserted matters that understated or omitted the true circumstances to which she referred.
The respondents submitted that the third respondent’s evidence did not enable a finding as to when any purported relationship commenced and evidence as to when it terminated was a matter in dispute.
The respondents submitted that the evidence is of sharing expenses and paying equal contributions for rent, not inconsistent with the advance of $5,000 that the third respondent gave evidence of having provided to the worker being part of a pragmatic transactional relationship.
The respondents submitted that the worker never nominated the third respondent as next of kin.
The respondents submitted that the third respondent had not provided any explanation why she did not attend the employer’s fund raiser, or why the money raised went to the worker’s parents, when she asserted that she and the worker were getting married.
The respondents submitted that the third respondent’s evidence at least understated the situation regarding her having no family or friends in Australia, given the evidence of Pradip.
The respondents submitted that the conflict as to whether there were flatmates raised again an issue as to whether the third respondent could be relied on for assertions that could not be independently corroborated.
The respondents submitted that it was not possible to discern from the joint bank account any pattern of transactions to support a joint account for shared expenses and saving. The account did not show over 12 months that the worker and the third respondent used it to “manage our money together” or they “wanted to start saving for our future together.”
The respondents submitted that the third respondent’s reliance on a bank statement addressed to the worker gave rise to an inference that she continued to have access to his bank accounts and “presumably” tax returns. The unexplained failure to rely on these documents invited an adverse inference.
The respondents submitted that the provision by the worker of general and financial advice and emotional support was equally consistent with the third respondent being a close neighbour, friend, or in a casual boyfriend/girlfriend arrangement.
The respondents submitted that the third respondent’s evidence that Prajjwol’s family wanted them to settle down and get engaged was uncorroborated, and disputed by the respondents, the fourth respondent, and Ms Joshi. Ms Joshi stated that at least six months before the worker’s death, the third respondent informed her that any relationship was terminated, which was confirmed by the worker.
The respondents submitted that, if the third respondent was part of the family, her activities during the period of mourning were at least incongruous with what would be expected of a friend, let alone a de facto spouse.
The respondents submitted that on the same day the third respondent received legal advice that she was eligible to claim, she posted on Facebook a memorial video and narrative, the first and only time the worker’s passing was acknowledged.
The respondents submitted that, save for the third respondent’s assertion, there was no contemporaneous record of a relationship at the time of the worker’s injury or death. The third respondent stated the worker provided her with a mobile phone. No text messages passing between them in respect of their shared life were relied upon.
Referring to s 21C of the Interpretation Act, the respondents submitted as follows:
(a)    Duration of the relationship: there was no independent evidence of a permanent and future commitment to a shared life that existed at the time of death.
(b)    Nature and extent of their common residence: Ms Joshi’s evidence was that the third respondent was a joint lessee with the worker and shared with two others.
(c)    Whether a sexual relationship exists: there was no evidence of a sexual relationship.
(d)    The degree of financial dependence/interdependence, and arrangements for financial support: The third respondent’s evidence was that she and the worker contributed proportionally to the rent and assisted each other from time to time, but otherwise opened a joint bank account, which was operated by the worker, in April 2021. There was no evidence of future dependency or a shared life. The worker was to relocate to a remote region by himself to advance his residential prospects.
(e)    The ownership, use and acquisition of property: no evidence.
(f)    The degree of mutual commitment to a shared life: it was disputed by the respondents that the third respondent and the worker were to be engaged and married. There was no contemporaneous record or posting on social media of engagement or prospective marriage plans.
(g)    The care and support of children: no evidence.
(h)    The performance of household duties: Ms Joshi’s evidence was that she observed the worker to perform domestic duties. It can be inferred from the joint bank account that the worker also did the shopping.
(i)    The reputation and public aspects of the relationship: the respondents disputed a de facto relationship but were aware of boyfriend/girlfriend and co-habitation. They relied on Ms Joshi’s evidence and the lack of contemporaneous social media postings to support any public acknowledgment or recognition of a de facto relationship.
The respondents submitted that evidence of a de facto relationship was sparse and limited to the third respondent’s assertions as to what she and the worker planned for the future. They referred to the observations of McLelland CJ in Eq in Eyota Pty Limited v Hanave Pty Limited.[2]
[2] (1994) 12 ACSR 785 at 789.

The third respondent sought a non-publication order, or in the alternative, that the decision be de-identified, including the names, dates of birth, addresses and employers of the parties.
The third respondent submitted that the Commission ought to be satisfied she was partially dependent on the worker; make an award apportioning 70% of the lump sum death benefit to her; and award interest on the apportioned amount at the rate of 2% above the RBA cash rate from 23 August 2022 to date.

Applicant

The applicant’s submissions were confined to the claim for interest under s 109 of the 1998 Act.
The applicant conceded that, if an order for the payment of interest was to be made, it should be at a rate that was 2% above the RBA cash rate.
The applicant submitted that the issues were:
(a) whether interest should be ordered at all, and
(b) if interest should be ordered, the date from which interest should be ordered.
The applicant submitted that it was well-established that the words “duly made” mean “fully particularised”, and not when the initial letter of claim was issued. This flowed from Kaur and other decisions.
The applicant submitted it was clear from these decisions that s 109(2)(b) of the 1998 Act required not just that particulars of the claim be provided, but the claim, including the question of dependency, be fully particularised. (Emphasis in original).
The applicant submitted that the claim was not “fully particularised” until the final evidence in relation to dependency was served on behalf of each respondent. This occurred:
(a) in the case of the first and second respondents, on 3 April 2024, with the lodging of the AALD annexing additional evidence in relation to dependency, and
(b) in the case of the third respondent, on 26 March 2024, with the lodging of a letter that served additional evidence in relation to dependency.
Given the history of the proceedings and the significant dispute between the respondents in relation to dependency, the applicant submitted that the application of s 109(2)(c) of the 1998 Act precluded the making of an order for interest because:
(a)    the claim by each respondent was not fully particularised by the time of the first preliminary conference on 12 October 2023 [sic: 21 September 2023];
(b)    at the first preliminary conference, the matter was adjourned on the application of all respondents because of the need for further evidence in relation to dependency;
(c)    at the second preliminary conference on 12 October 2023, the matter was further adjourned for the same reason;
(d)    at the third preliminary conference on 13 December 2023, the matter was further adjourned for the same reason, and
(e)    at the fourth preliminary conference on 19 February 2024, the matter was further adjourned for the same reason.
The applicant submitted that the claims for interest should be dismissed.
With respect to the submissions of the first and second respondents that the only issue had been apportionment, and the reference to the “public trustee”, the applicant submitted this was incorrect, and ignored the significant dispute in relation to dependency, and the absence of a response to its assumption, contained in its solicitors’ letter to Bond Legal dated 1 November 2022, that no respondent would at that stage request that the lump sum be paid to the NSW Trustee and Guardian.

SUMMARY

Section 25 of the 1987 Act provides:
“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 dependent 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 dependent child of the worker under the age of 16 years, and
(ii)     each dependent 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 dependent 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 dependent child who is a student at the time of the worker's death or after reaching the age of 16 years-until the child dies, reaches the age of 21 years or ceases to be a student, whichever first occurs.
(3)     The amount of any weekly payments, or other compensation payable under this Act, shall not be deducted from the amounts referred to in subsection (1) (a) or (b).
(4)     If an amount mentioned in subsection (1) (a) at any time after the commencement of this Act-
(a)     is adjusted by the operation of Division 6, or
(b)     is adjusted by an amendment of this section, the compensation payable under subsection (1) (a) is to be calculated by reference to the amount in force at the date of death.
(4A) If the death of a worker results both from an injury received before the adjustment of an amount mentioned in subsection (1) (a) and an injury received after that adjustment, the worker shall, for the purposes of subsection (1) (a), be treated as having died as a result of the injury received after that adjustment.
(5)     In this section--
‘child of the worker’ means a child or stepchild of the worker and includes a person to whom the worker stood in the place of a parent.
‘dependent child of the worker’ means a child of the worker who was wholly or partly dependent for support on the worker.
‘student’ means a person receiving full-time education at a school, college or university.”
Section 4 of the 1998 Act defines “dependants” as follows:
“‘dependants’ of a worker means such of the members of the worker's family as were wholly or in part dependent for support on the worker at the time of the worker's death, or would but for the incapacity due to the injury have been so dependent, and includes--
(a) a person so dependent to whom the worker stands in the place of a parent or a person so dependent who stands in the place of a parent to the worker, and
(b) a divorced spouse of the worker so dependent, and
(c) a person so dependent who--
(i) in relation to an injury received before the commencement of Schedule 7 to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 --although not legally married to the worker, lived with the worker as the worker's husband or wife on a permanent and genuine domestic basis, or
(ii)in relation to an injury received after that commencement--is the de facto partner of the worker.
Note : ‘De facto partner’ is defined in section 21C of the Interpretation Act 1987”
Section 21C of the Interpretation Act provides:
“(1) ‘Meaning of ‘de facto partner’ For the purposes of any Act or instrument, a person is the
‘de facto partner’ of another person (whether of the same sex or a different sex) if--
(a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010 , or
(b) the person is in a de facto relationship with the other person.
(2) Meaning of "de facto relationship" For the purposes of any Act or instrument, a person is in a
‘de facto relationship’ with another person if--
(a) they have a relationship as a couple living together, and
(b) they are not married to one another or related by family.
A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else.
(3) Determination of ‘relationship as a couple’ In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case--
(a) the duration of the relationship,
(b) the nature and extent of their common residence,
(c) whether a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.
No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.
…”
Section 29 of the 1987 Act provides:
“Apportionment of payments between dependants
(1)     The compensation payable under this Division to each dependant of a deceased worker may be apportioned by the Commission or by the NSW Trustee.
(1A) The lump sum death benefit payable under this Division is not to be apportioned if a deceased worker leaves only one dependant (whether wholly or partly dependent on the worker for support) and the whole of the lump sum death benefit is to be paid to that one dependant.
(1B) In apportioning the lump sum death benefit payable under this Division between 2 or more dependants, the whole lump sum death benefit is to be apportioned among those dependants (so that the sum of the apportioned amounts equals the full lump sum death benefit).
(2)     Application for apportionment may be made by or on behalf of a person entitled to the compensation-
(a) to the NSW Trustee, or
(b) to the Commission (whether or not an application has been made to the NSW Trustee or the NSW Trustee has made a decision).
(3)     The NSW Trustee may decline to deal with an application for apportionment and advise the parties to apply to the Commission.
(4)     The NSW Trustee is not to deal with an application for apportionment of compensation if an application for apportionment of the same compensation is before the Commission.
(5)     A decision by the NSW Trustee to apportion compensation under this Division is subject to any decision made by the Commission with respect to the matter.
(6)     If there are both total and partial dependants of a deceased worker, the compensation may be apportioned partly to the total and partly to the partial dependants.
(7)     If a dependant dies-
(a) before a claim under this Division is made, or
(b) if a claim has been made, before an agreement or award has been arrived at or made, the legal personal representative of the dependant has no right to payment of compensation, and the amount of compensation shall be calculated and apportioned as if that dependant had died before the worker.
(8)     The regulations may make provision for or with respect to the publication of applications for apportionment and any other matter connected with apportionment.”
Section 109 of the 1998 Act provides:
“(1) In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.
(2) Interest cannot be ordered under this section--
(a) on any compensation payable under Division 4 of Part 3 of the 1987 Act, or
(b) on any compensation payable under this Act for any period before a claim for the compensation was duly made, or
(c) on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102.
(3) This section does not--
(a) authorise the giving of interest upon interest, or
(b) apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.”

Dependency

In Halioris, McHugh JA said:
“Dependency is a question of fact: Potts v Niddre & Benhar Coal Co Ltd; Aafjes v Kearney. It is concerned with actual and not theoretical support. A person claiming dependency need not be in actual receipt of support at the date of death. It is enough that, as at that date, he or she had a reasonable expectation of support in the future. Dependency may exist at the date of death although actual support cannot or is unlikely to occur until a future time.” (Citations omitted).
The factors relevant to the apportionment of compensation among dependents were set out by Egan ACCJ in Wratten:
“The exercise of power to determine the correct amount to be apportioned to each dependent requires an examination of all relevant facts including the extent of past dependence, the ages of the dependants, their health, special needs, lifestyle etc.” (at [34] – [35]).
In Kaur, President Keating said:
“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”, and “’past events and future probabilities’ have to be considered. (Aafjes v Kearney).”

First and second respondents

I do not accept that the first and second respondents were wholly dependent for support on the worker.
On the evidence provided in support of Prajjwol’s visa application, the first and second respondents were able to give the requisite assurance that he would be supported in Australia. That was, of course, in 2017, some years before Prajjwol’s death, but there was no suggestion at that stage that the business was performing poorly.
I am prepared to accept that the worker made some remittances to the first and second respondents, although no explanation of the bank records on which they rely has been provided, and if the underlined deposits came from Prajjwol, they were few and irregular.
The third respondent disputed that Prajjwol made regular payments to his parents. Her evidence was, however, that he sent money when it was requested, which could be quite frequently. That does not suggest that, as she submitted, the payments were in repayment of the loans taken out by the first and second respondents to send Prajjwol to Australia.
In 2017, when the first and second respondents supported Prajjwol’s visa application, one AUD was equivalent to 82.74 NPR. Currently, one AUD is equivalent to about 89 NPR.
Assuming that all the underlined payments in the bank statements were made by Prajjwol (with the exception of the amount of 3,700,000 NPR), there were 10 payments. They amounted to about $20,500 AUD over the period from 2017 until Prajjwol’s death in 2022.
It is likely, in my view, that the worker would have continued to assist his parents as he became established in his career, they aged, and his younger brother undertook higher education. It is also possible that he would have repaid the loan they obtained to support his visa application. However, it is also likely that Prajjwol’s brother would have in due course assisted their parents. It is also possible that, had he had children, Prajjwol’s ability to provide financial assistance to his parents would have decreased.
The first and second’s evidence is that they continue to operate their tailoring business, although they state it is doing poorly. Dr Sherchan has not suggested that either respondent is unable to work.
I accept that the first and second respondents were partly dependent for support on Prajjwol.

Third respondent

The first and second respondents have sought to impugn the credit of the third respondent. I have approached her evidence with some caution.
BKW has not refuted the evidence of Jenny, on which the first and second respondents relied. However, Jenny and BKW did not meet until well after Prajjwol’s death. Jenny can have no firsthand knowledge about the relationship between BKW and Prajjwol.
Some of the evidence relied on by the first and second respondents relates to the period after the worker’s death, and their assertion that the third respondent’s behaviour was not consistent with her being Prajjwol’s de facto partner. Whilst they may have been offended and distressed by BKW’s behaviour, she was not required to conform to some pattern of mourning that others may find acceptable in order to establish that she was Prajjwol’s de facto partner.
Section 21C of the Interpretation Act defines de facto relationship. It provides that all the circumstances of the particular relationship are to be taken into account, including any of the listed matters that are relevant. However, no particular finding in relation to any of those matters is necessary in determining whether two persons have a relationship as a couple.
I accept that the worker and the third respondent commenced a relationship in or about 2017, while both still lived in Nepal. Each was at that stage still living with his or her parents. I also accept that BKW came to Australia to be with Prajjwol.
The worker came to Australia in 2017. The third respondent joined him in 2019, when she was only 19. Ms Bista stated that he expected his “partner” to join him. Both BKW’s family and that of the worker appear to have regarded her as at least his “girlfriend” after her arrival in Australia, and even after these proceedings commenced.
The third respondent and the worker lived with flatmates until 2021. The fact that they lived in a house with others does not preclude them being in a de facto relationship. Ms Bista, for example, stated that she and her partner lived with another couple and were looking for a further couple to help with the rent.
Ms Bista stated that when BKW arrived in Australia, she and the worker shared a room. When the lease ended, the worker and BKW moved with her and her partner to another apartment.
According to Ms Bista’s observation, BKW and the worker “shared a normal de facto relationship.” They had also talked in general terms about getting married but had no specific plans.
The worker and the third respondent became joint tenants of a property in November 2021. BKW’s evidence is that they lived together on their own, but two other girls stayed with them for a time. Ms Joshi stated that there were two other girls living in the apartment.
Once again, the presence of flatmates would not preclude the existence of a de facto relationship between the worker and BKW.
Like Ms Bista, Ms Margono has no interest in the outcome of the proceedings. She described herself as Prajjwol’s friend and stated that Prajjwol told her his relationship with BKW started in Nepal.
Ms Margono’s evidence supports the existence of a de facto relationship. She stated that two weeks before the accident, Prajjwol told her he and BKW eventually planned to marry and move interstate.
The evidence of Ms Bista and Ms Margono also predates Jenny’s evidence.
I do not draw any inference from the fact that no engagement had been announced on social media. If there was no official engagement, there was nothing to announce, and in any event, not everyone announces every event in his or her life on social media.
Ms Joshi’s evidence is that BKW told her in about December 2021 of a “big fight” with Prajjwol, because he had found out about her affair with Nischal Sharma. She stated that BKW was never in a serious relationship or a de facto relationship with Prajjwol.
However, while Pradip has tried to explain why BKW was referred to as Prajjwol’s “de facto” and “spouse” in his death certificate in July 2022, he obviously accepted that BKW was at least Prajjwol’s girlfriend, and stated that Prajjwol’s age when he was married was 20 years. That would date the relationship from about 2019, which was when BKW arrived in Australia, and is consistent with her evidence. It is inconsistent with BKW not being in a serious relationship with Prajjwol, and her not being in a relationship with him at the date of his death.

Jenny’s evidence is that she assisted BKW to prepare her statement in response to the evidence of her “clubbing” and attempts to contact Nischal. While she has stated that she helped BKW to draft emails to her lawyers many times, there is no evidence of these other emails.
The fact that BKW sought Jenny’s assistance to respond to the evidence of the first and second respondents does not negate the possibility that she and Prajjwol were in a de facto relationship at the time of his death. As she submitted, Jenny’s statements are not relevant to the determination of the real issues in dispute.
The third respondent has denied having a relationship other than friendship with Nischal. In my view, her message to him that she knew “things did not work out between them” suggests that their relationship was more than that of friends. She also asked Nischal to deny knowing her, and say he never had a relationship with her. Had they merely been college friends, it would be expected that she would ask that he say just that, not that he did not know her. BKW’s request that he deny even knowing her reflects poorly on her.
Jenny stated that BKW had said she was scared she would not get any money from the claim once her relationship with Nischal became known. This may have been based on the impression that, if she had an affair with someone else, she would not be regarded as Prajjwol’s de facto partner. That is not necessarily the case.
Whatever may have occurred between Prajjwol and BKW in December 2021, I accept that at the time of his death, they had resumed their relationship. That is supported by Ms Margono’s evidence that they were “certainly” still a couple at their friend’s birthday celebration in March 2022.
The text messages between Prajjwol and BKW on the night of Prajjwol’s injury also in my view support that they were at that time in a relationship, and more than flatmates or in a “transactional relationship”, or a “convenient arrangement”.
BKW told Prajjwol she had put his dinner in the fridge for him to have when he came home. He was keeping her updated about his expected time of arrival. She “missed him” and had made both his lunch and his dinner. In my view, these matters are not indicative that someone was merely a flatmate or was in a transactional or convenient arrangement.
Taking into account the provisions of s 21C of the Interpretation Act, and bearing in mind that no particular finding in relation to the matters listed is necessary in determining whether two people have a relationship as a couple:
(a)    The duration of the relationship: I accept that the worker and BKW lived together at least from 2019, when she came to Australia, and were in a relationship from about 2017.
(b)    The nature and extent of their common residence: the worker and BKW were joint tenants of the accommodation where they were living at the date of the worker’s death. In my view, whether they had flatmates is irrelevant to the issue of whether they were in a de facto relationship.
(c)    Whether a sexual relationship exists: I accept that the worker and BKW were in a sexual relationship. Even the evidence relied on by the first and second respondents appears to accept that was the case.
(d)    The degree of financial dependence or interdependence, and any arrangements for financial support: the worker and BKW had a joint account, which is in any event not necessarily the case even in long-established partnerships. BKW gave evidence that they both paid the water and electrical bills.
(e)    The ownership, use and acquisition of property: the worker and BKW did not own property, which is not surprising in view of their ages and the fact that each was a student.
(f)    The degree of mutual commitment to a shared life: I accept that, at the date of his death, the worker and BKW had a commitment to a shared life.
(g)    The care and support of children: the couple did not have children.
(h)    The performance of household duties: notwithstanding Ms Joshi’s evidence that BKW “never did anything around the house”, I accept BKW’s evidence that she did whatever she could and tried to make sure she cooked Prajjwol’s dinner (supported by the text message I have referred to above). Prajjwol was working two jobs and studying, so it is unlikely he was able to do all the housework. In any event, BKW’s evidence is that Ms Joshi did not visit frequently, and that is confirmed by Ms Joshi’s evidence that she only met the couple on special occasions.
(i)    The reputation and public aspects of the relationship: there is conflicting evidence from Prajjwol’s and BKW’s families about the relationship. I accept on the evidence that they were in a relationship at the date of Prajjwol’s death, and their friends at least were aware of it. According to Ms Margono, BKW was at the hospital every day after Prajjwol’s admission, and there is a photograph of her in the ICU with him.
Whilst I do not accept all of the third respondent’s evidence, I am satisfied that she and Prajjwol were in a de facto relationship at the date of his death, and she was partly dependent for support on him.

Apportionment of lump sum compensation

I accept that each of the three respondents was partly dependent for support on Prajjwol.
Prajjwol’s payments to his parents appear to have been sporadic. As I have noted, they may have become more dependent on him in future, but it is equally likely that his brother may have assisted them, and Prajjwol may have had commitments to a family of his own.
BKW may have expected continued support from Prajjwol, who was only 23 when he died, so this period may have spanned some approximately 60 years. I accept the submission that she has the greater claim on the death benefit than the first and second respondents.
I have assumed that payments by Prajjwol to the first and second respondents would have continued for, say, a further 20 years, but they may not have been at the same rate and frequency. They amounted to approximately $4,100 per annum between 2017 and 2022.
I accept that the fourth respondent, who has had the benefit of the advice of senior counsel, and is now 18 years old, was not dependent for support on Prajjwol, and he has made no claim on the death benefit.
Having considered the evidence, I have determined that the lump sum should be apportioned as follows:
·        first respondent: 15% = $129,352.50
·        second respondent: 15% = $129,352.50
·        third respondent: 70% = $603,645
Total: $862,350

Interest

An award of interest is discretionary. It is subject to the limitations in ss 109(2) and 109(3) of the 1998 Act. Sub-section (2)(b) provides that interest cannot be ordered on any compensation payable for any period before a claim for compensation was duly made.
In Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burrangong Pet Foods Pty Ltd,[13] Deputy President Fleming said:
“The award of interest by the Commission, pursuant to section 109 of the 1998 Act is discretionary. Mr Haidary will only be entitled to interest, if awarded, on those amounts of his weekly entitlement that were unpaid, and only from the date that his claim ‘was duly made’. …The purpose of ordering interest on an award is to compensate the worker for the loss of his or her income, not to penalise the employer (Virag v James N Kirby t/as Betts Electric Motors[14]; Healey v McPherson Binding Pty Ltd).[15]
[13] [2005] NSWWCCPD 9.
[14] [1990] NSWCC 1; (1990) 6 NSWCCR 86.
[15] (1989) 5 NSWCCR 139.
Keating P’s decision in Kaur has consistently been applied in the Commission. His Honour said, at [139]:
“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.”
“Duly made” has been held to mean “fully particularised” (Kratz). The claim was not fully particularised until each respondent had provided evidence in support of his or her claim. I accept the applicant’s submissions in this regard.
The applicant submitted that the claims for interest should be dismissed, pursuant to s 109(2)(c) of the 1998 Act, as the proceedings were adjourned multiple times on the application of the respondents.
Section 109(2)(c) of the 1998 Act provides that no interest is payable for any period during which the proceedings were adjourned on the application of the claimant. Given the dates on which the claims were duly made, the issue does not arise. I propose to exercise my discretion to award interest.
I accept the applicant’s submission that the claims were duly made on the following dates:
(a)    first respondent: 3 April 2024;
(b)    second respondent: 3 April 2024, and
(c)    third respondent: 26 March 2024.
The applicant submitted that an appropriate rate of interest, should it be awarded, would be a rate that is 2% above the applicable RBA cash rate. The third respondent agreed with this submission and helpfully provided a schedule of the applicable rates. The first and second respondents adopted the third respondent’s submissions as to the appropriate rate of interest.
The interest payable on the lump sums is therefore as follows:
(a)    first respondent: from 3 April 2024 to 28 June 2024 at the rate of 6.35% per annum;
(b)    second respondent: from 3 April 2024 to 28 June 2024 at the rate of 6.35% per annum, and
(c)    third respondent: from 26 March 2024 to 28 June 2024 at the rate of 6.35% per annum.

Funeral expenses

The third respondent’s evidence is that she paid Prajjwol’s funeral expenses, using money withdrawn from his account, and she sought reimbursement as his de facto partner. It would seem then that, as pointed out by the applicant’s solicitors in an email to the third respondent’s solicitors on 29 June 2023, reimbursement would need to be made to Prajjwol’s estate or his legal personal representative.
No submissions have been made by any party regarding the funeral expenses, and I have insufficient evidence to make any determination regarding their reimbursement. It may be that this has been dealt with by the applicant without requiring the Commission’s intervention.
I will grant the parties liberty to apply with respect to any claim for the funeral expenses.

Non-publication order

The third respondent sought a non-publication order, or, in the alternative, that the decision be de-identified. The first and second respondents opposed either a non-publication order or de-identification of the parties.
Section 58 of the Personal Injury Commission Act 2020 (PIC Act) provides:

“58 Publication of decisions

(1) The Commission must cause details of the following to be published in accordance with the Commission rules--
(a) decisions of the Commission,
(b) decisions of merit reviewers under Division 7.4 of the Motor Accident Injuries Act 2017 ,
(c) decisions of review panels for merit reviewers under Division 7.4 of the Motor Accident Injuries Act 2017 ,
(d) decisions of Appeal Panels for medical assessments under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 ,
(e) decisions of review panels for medical assessments under Part 3.4 of the Motor Accidents Compensation Act 1999 or Division 7.5 of the Motor Accident Injuries Act 2017 ,
(f) any other decisions prescribed by the Commission rules.
(2) The Commission may make a summary of the details of agreements registered under the former section 66A of the Workers Compensation Act 1987 (before its substitution by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 ) available for public inspection by--
(a) employers, insurers, workers and the Authority (and their legal representatives), and
(b) persons or classes of persons as may be prescribed by the regulations.”

Rule 131 of the Personal Injury Rules 2021 (the Rules) provides:

“131 Publication of decisions

(1) Subject to rule 132, the details of a decision required to be published by section 58 of the PIC Act are to be published--
(a) on the Commission website or in another location directed by the President, and
(b) no earlier than 7 days after the decision is issued.
(2) Subrule (1)(b) does not prevent a decision being published within the period of 7 days after the decision is issued if the President, with the consent of the parties, so directs.”

Rule 132 of the Rules provides:

“132 De-identification or redaction of publishable decisions

(1) The Commission or the President may, of their own motion or on the application of a relevant person, direct either or both of the following--
(a) that all or part of a publishable decision be de-identified before it is published,
(b) that part of a publishable decision be redacted before it is published.
(2) An application for a direction may be made during, or after the completion of, the proceedings in which the publishable decision is issued.
(3) An application for a direction is to be made to--
(a) for proceedings being heard by the Commission that have not been completed--the Commission, or
(b) for other proceedings that have not been completed--the President, or
(c) for proceedings that have been completed--the President within 7 days after the publishable decision is issued.
(4) In determining an application for a direction, the Commission or the President is to have regard to the following matters--
(a) the objects of the PIC Act and enabling legislation and, in particular, the object that the Commission be open and transparent about its processes,
(b) the prevention of prejudice to the proper administration of justice,
(c) the safety, health and wellbeing of a person affected or named by the publishable decision,
(d) the views of any other party to the proceedings,
(e) whether it is necessary in the public interest for the direction to be given and whether the public interest in giving the direction significantly outweighs the public interest in open justice.
(5) If the Commission grants an application for a direction under subrule (3)(a), the President may, despite the direction of the Commission, direct that the publishable decision be published without the de-identifications or redactions directed by the Commission or with different de-identifications or redactions.
(6) In this rule--
‘publishable decision’ means a decision details of which are required to be published by section 58 of the PIC Act.
‘relevant person’, in relation to an application for a direction, means--
(a) a party to the proceedings in which the publishable decision is made, or
(b) a person named in the publishable decision, or
(c) another person the Commission or the President considers to have a sufficient interest to make the application.”

The third respondent submitted that, given the context of the dispute and the facts in dispute, her safety, health, and well-being should be a strong factor weighing against the full publication of the decision.
The third respondent submitted that the public interest in protecting the parties significantly outweighed the public interest in open justice. She acknowledged that the objects of the PIC Act and the Commission were to be open and transparent about its processes, but submitted the non-publication of this decision would not impact those objects overall.
The first and second respondents submitted that, while there was evidence that they had developed and were being treated for depression, their preference was that the decision be published. Any “safety, health and well-being” considerations raised by the third respondent were not self-evident.
The first and second respondents submitted that Jenny’s sworn evidence involved conduct by the third respondent that could be objectively assessed as “an affront to the Commission.” They submitted that the objects of the Commission and the Rules were not served through non-publication.
Rule 132 of the Rules provides for either de-identification or redaction of a decision.
I am satisfied that it is appropriate to de-identify the third respondent for the following reasons:
(a)    de-identifying the third respondent will ensure her anonymity while still allowing the decision and its details to be understood;
(b)    the third respondent has standing to make the application as a relevant person;
(c)    the third respondent is a person named in the decision and a party to the proceedings in which the decision is made and continuing to identify her may have foreseeable implications for the third respondent’s safety, health, and wellbeing;
(d)    the decision contains no matters of principle. Accordingly, there is little to no prejudice to the administration of open justice, noting the decision will be published in a de-identified manner, and
(e)    it is necessary in the public interest for the direction to be given.
The application to de-identify the third respondent from the entire decision is granted.
I have determined as follows:
(a)    the worker, Prajjwol Sama Shrestha, died on 6 July 2022 as a result of injury on 21 June 2022, arising out of or in the course of his employment with the applicant;
(b)    the first respondent, the second respondent, and the third respondent were partly dependent for support on the worker;
(c)    there were no other persons dependent for support on the worker;
(d)    the applicant is liable to pay, pursuant to s 25 of the 1987 Act, the lump sum death benefit of $862,350, and
(e)    the applicant is liable to pay, pursuant to s 109 of the 1998 Act, interest on the lump sum death benefit.
The orders are set out in the Certificate of Determination.

[2024] NSWPIC 349

1 July 2024