Roe and K & S Freighters Pty Ltd (Compensation) - [2023] AATA 52

Roe and K & S Freighters Pty Ltd (Compensation) [2023] AATA 52 (13 January 2023)
Division:GENERAL DIVISION
File Number(s): 2020/8332
Re:Kellie Jayne ROE
APPLICANT

AndK & S Freighters Pty Ltd
RESPONDENT

Decision
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:13 January 2023
Place:Sydney

The Tribunal finds that the correct or preferable decision is that the reviewable decision, dated 26 October 2020, is varied as follows:
(a)the deceased, Mr Mark Rallings, had two dependants, being the applicant and Mr Ky Rallings, at the time of his death;
(b)the applicant and Ky Rallings were partly dependant on Mr Rallings, and therefore are entitled to benefit under s 17(4) of the SRC Act; and
(c)the applicant and Ky Rallings are entitled to a benefit of 5% and 35% of the principal sum payable under s 17(4) of the SRC Act, being $517,564.84.
(d)I find that the applicant is entitled to benefit under s 18 of the SRC Act in the amount of $11,459.25.
(e)The respondent is to pay the applicant’s costs of the application for review, as agreed or taxed under s 67(8) of the SRC Act.

........................[SGD]................................................
The Hon. John Pascoe AC CVO, Deputy President
Catchwords
COMPENSATION – workers compensation –liability for an employee’s death arising from injury in the course of employment – whether the employee had any dependants at the time of his death – whether his child was a prescribed child – whether he was in a de facto relationship – whether the dependants were wholly dependent – whether the dependants were partly dependent – where there is a prescribed child – where the applicant is the primary caregiver to the child – whether the applicant and the deceased lived together at the time of his death - no de facto relationship – decision under review varied.
Legislation
Acts Interpretations Act 1901 (Cth) s 2F
Safety Rehabilitation and Compensation Act 1988 (Cth) s 4, 17, 18, 67
Cases
Aafjes v Kearney (1976) 180 CLR 199
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
13 January 2023

This matter relates to an application for review regarding a decision of the delegate of the respondent of 26 October 2020 that denied that the respondent was liable under s 17 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’).
Background
This is a matter with a contested factual background. This is noted and discussed below.
The applicant was born in Australia in October 1969. She first met the deceased, Mr Mark Rallings, in 1984 but did not begin a relationship with him at that time.
In 1988, Mr Rallings had a child, ‘Brydie’, with a different partner.
The applicant asserts that the applicant began a relationship in 1998 with Mr Rallings, and that they commenced living together, and that Mr Rallings’ child Brydie also lived with them between 2000 to 2006. The applicant asserts that the family lived together at 79 Addison Avenue, Lake Illawarra (‘Addison Avenue’), and that while…

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read Roe and K & S Freighters Pty Ltd (Compensation) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] AATA 52
Decision Date: 13 January 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the delegate of the respondent, which denied liability under section 17 of the *Safety Rehabilitation and Compensation Act 1988* (Cth) for the death of Mr Mark Rallings. The applicant, Ms Kellie Jayne Roe, sought compensation as a dependant of the deceased. The central dispute revolved around whether Ms Roe and her son, Ky Rallings, were dependants of the deceased at the time of his death, and the extent of their dependency.

The court was required to determine several legal issues, including whether the applicant and Ky Rallings were dependants of the deceased, whether Ky Rallings qualified as a "prescribed child," whether the applicant and the deceased were in a de facto relationship, and whether the dependants were wholly or partly dependent on the deceased. The court also needed to consider the applicant's role as the primary caregiver to Ky Rallings and whether the applicant and the deceased were living together at the time of his death.

The Deputy President found that while the applicant and the deceased had a strained relationship and were not in a de facto relationship at the time of Mr Rallings' death, they had lived together for significant periods and had a child, Ky Rallings, together. The court accepted that Ky Rallings was a dependant and a "prescribed child." Crucially, the court determined that both the applicant and Ky Rallings were partly dependent on Mr Rallings, who had provided the main income for the family during their cohabitation. The court applied section 17(4) of the *SRC Act*, which provides for compensation to dependants who are partly dependent.

The reviewable decision was varied. The court ordered that the deceased had two dependants, the applicant and Ky Rallings, who were partly dependent and therefore entitled to benefit under section 17(4) of the *SRC Act*. The applicant was awarded 5% of the principal sum, and Ky Rallings was awarded 35%. Additionally, the applicant was found to be entitled to a benefit under section 18 of the *SRC Act* in the amount of $11,459.25. The respondent was ordered to pay the applicant's costs of the application for review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This matter relates to an application for review regarding a decision of the delegate of the respondent of 26 October 2020 that denied that the respondent was liable under s 17 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’). Background This is a matter with a contested factual background. This is noted and discussed below. The applicant was born in Australia in October 1969. She first met the deceased, Mr Mark Rallings, in 1984 but did not begin a relationship with him at that time. In 1988, Mr Rallings had a child, ‘Brydie’, with a different partner. The applicant asserts that the applicant began a relationship in 1998 with Mr Rallings, and that they commenced living together, and that Mr Rallings’ child Brydie also lived with them between 2000 to 2006. The applicant asserts that the family lived together at 79 Addison Avenue, Lake Illawarra (‘Addison Avenue’), and that while the applicant was the registered proprietor, Mr Rallings had provided the funding for the property. In February 2002, the applicant gave birth to her and Mr Rallings son, Ky Rallings. The applicant contends that Ky lived with the applicant and Mr Rallings for most of his life until Mr Rallings’ death, bar a period of mental ill health of Mr Rallings. The respondent denies this. Mr Rallings worked as a truck driver. The applicant asserts that there were periods where he had his own truck, and other periods where he worked for employers such as BlueScope Steel, and the respondent as a truck driver. The applicant asserts that during the period that the applicant and Mr Rallings lived together, he provided the main income for the family, and the applicant’s income was supplementary to that. On 28 December 2012, Mr Rallings was diagnosed with leukaemia, and quit his job. He was in hospital until February 2013. The applicant states that she took leave without pay from her job as a cleaner to care for him, and that at that time they were able to survive on income protection insurance payments. The applicant states that Mr Rallings began to return to work in August/September 2013 and undertook a course of study at TAFE NSW to become a driving instructor and gained some employment in that area. However, he ceased this in 2014 due to it being unreliable. He later restarted work with Chemtrans as a full-time work as a truck drive. Chemtrans was subsequently taken over by the respondent, and Mr Rallings became an employee of the respondent. The applicant asserts that during April 2014, Mr Rallings’ mental health declined to the point that it was no longer ‘healthy’ for the applicant and Ky to live at Addison Avenue anymore. In June 2014, they moved in with the applicant’s sister, and stayed until early 2015. The applicant asserts that there was an ongoing relationship between Mr Rallings and Ky, and also between Mr Rallings and the applicant; however, the relationships were ‘strained’ due to Mr Rallings’ mood. However, Mr Rallings continued to financially support the applicant and Ky with child support.

Evidence

Evidence Before The Court

I do not intend to make any generalised findings as to the credibility of the witnesses, but will deal with any inconsistencies as they arise and are relevant to my findings in this matter.Evidence of Kellie Jayne Roe The applicant affirmed her statement of 24 August 2021. The applicant gave evidence that she functionally illiterate, and that although she could deal with simple language, she was unable to deal with ‘big words’. She said that in preparing her statement, her solicitor had asked her questions which she had answered. Her solicitor then wrote the material down and it was read back to her. She said that she had started a relationship with Mr Mark Rallings in 1989, and that they had started to live together in 1998 at 40 Charlotte Crescent, Albion Park. They lived at that address from 1998 to 2000, after which that property was sold, and they moved to 89 Addison Avenue which was a rental property. After living at that property for approximately 12 months, they looked for somewhere to purchase, and subsequently moved to 79 Addison Avenue Lake Illawara (‘Addison Avenue’). The intention was to build a new home on that property. The applicant said the property was put into her name, although the money was provided by Mr Rallings. The applicant said the reason that the property was put into her name was because Mr Rallings was a truck driver, and he was concerned that if he had an accident and was pursued for legal action, he may lose his home. Mr Rallings and the applicant lived in Addison Avenue until June 2014, with their son Ky, who was born in February 2002. Mr Rallings was diagnosed with leukemia in approximately 2012, but was in remission until approximately 2014. The applicant said that at that time, Mr Rallings became very difficult to live with and alleged that she was having an affair, which she denied. Mr Rallings then threw the applicant and Ky out. The applicant said that at that time “threw all my clothes onto the front lawn”. The applicant said that Mr Rallings was very paranoid at that time. After leaving the Addison Avenue property, the applicant and Ky went to live with her sister from June 2014 until January 2015. She said that during that period, Mr Rallings came to see her every weekend and would often stay the weekend with her. He continued to spend time with Ky even when their relationship was strained. The applicant moved to 4 Eloura Street Lake Illawarra (‘Eloura Street’), in January 2015. The respondent noted that there was some inconsistency as to the reason behind the move between her oral and written evidence – in her statement dated 21 August 2021, she said she had moved to Eloura Street as it was easier for her with regards to taking Ky to and from school. In her oral evidence, she said the move had been to be closer to Mr Rallings, for Ky, and to Ky’s friends from school. I do not place much weight on this inconsistency. She said she worked at Unanderra, and Ky attended a school near his father’s home in Addison Avenue. The applicant would pick Ky up at his father’s home as that was convenient and also close to Ky’s friends.

Decision

Reasons for decision

I find that the respondent is to pay the applicant’s costs of the application for review, as agreed or taxed under s 67(8) of the SRC Act. Decision The Tribunal finds that the correct or preferable decision is that the reviewable decision, dated 26 October 2020, is varied as follows:(a)the deceased, Mr Mark Rallings, had two dependants, being the applicant and Mr Ky Rallings, at the time of his death;(b)the applicant and Ky Rallings were partly dependant on Mr Rallings, and therefore are entitled to benefit under s 17(4) of the SRC Act; and(c)the applicant and Ky Rallings are entitled to a benefit of 5% and 35% of the principal sum payable under s 17(4) of the SRC Act, being $517,564.84.(d)I find that the applicant is entitled to benefit under s 18 of the SRC Act in the amount of $11,459.25.(e)The respondent is to pay the applicant’s costs of the application for review, as agreed or taxed under s 67(8) of the SRC Act.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.