Shi v Transpace Pty Ltd - [2023] NSWPIC 314

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Shi v Transpace Pty Ltd & Ors [2023] NSWPIC 314
APPLICANT:	Hong Shi
First Respondent:	Transpace Pty Ltd
Second Respondent: Third Respondent: Fourth Respondent:	Nirmala Devi Ziying Zhang Giselle Gahalian
Member:	Kerry Haddock
DATE OF DECISION:	3 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum death benefit and interest; liability accepted; apportionment of lump sum and claims for interest to be determined; application by second respondent to rely on third statement of evidence, filed and served without leave; admission of evidence opposed by applicant and fourth respondent; second respondent initially represented by lawyer in India, and subsequently retained Australian lawyers; second respondent sought to respond to further statement of applicant, which had been admitted without objection; consideration of Kioa v West, Annetts v McCann, Ainsworth v Criminal Justice Commission, Inghams Enterprises Pty Limited v Michelle Zarb, Paul Segaert Pty Limited trading as Lidco v Narayan, Personal Injury Commission Act 2020 procedure and guiding principle; Held – in the interests of justice and procedural fairness, further evidence of second respondent admitted; amended timetable for evidence and submissions issued.
determinations made:	The Commission determines: 1. The second respondent is granted leave to rely on Application to Admit Late Documents dated 9 June 2023 and attached documents. 2. On or before 14 July 2023, the applicant and the fourth respondent are to lodge and serve an Application to Admit Late Documents attaching any further evidence and any further submissions on which they seek to rely. 3. On or before 28 July 2023, the second respondent is to lodge any further submissions on which she seeks to rely. 4. On or before 11 August 2023, the first respondent is to lodge and serve any further submissions on which it seeks to rely. 5. No further evidence will be admitted without leave after 14 July 2023. 6. At the conclusion of the time allowed for submissions, the matter will be determined “on the papers”. 7. The parties have liberty to request a further preliminary conference.

STATEMENT OF REASONS

BACKGROUND

The worker, Sumit Kumar Gahalian (Mr Gahalian/Sumit), died on 5 November 2021 as a result of injury arising out of or in the course of his employment with the first respondent, Transpace Pty Ltd (Transpace).
The applicant, Ms Hong Shi (Ms Shi/Selina), was the worker’s de facto wife. The fourth respondent, Giselle Gahalian (Ms Gahalian/Giselle), is the child of their relationship. The second respondent, Nirmala Devi (Ms Devi), is the worker’s mother. The third respondent, Ziying Zhang (Ms Zhang), is the daughter of Ms Shi’s marriage.
On 16 November 2021, Ms Shi completed a Notification Form, by which she advised iCare of Mr Gahalian’s death, and that she was making a claim for death benefits. She stated that she and Ms Gahalian were dependent on the worker.
On 19 May 2022, the first respondent’s insurer, EML, advised Ms Shi’s solicitors that liability for the claim had been accepted.
On 24 May 2022, the…

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.

Continue reading Shi v Transpace Pty Ltd

Details

AGLC: Shi v Transpace Pty Ltd [2023] NSWPIC 314
Case: [2023] NSWPIC 314
Decision Date: 3 July 2023

CaseChat Overview and Summary

The case of Shi v Transpace Pty Ltd involved a claim for a lump sum death benefit and interest under workers compensation. The liability for the death was accepted by the parties, but the apportionment of the lump sum and claims for interest were yet to be determined. The second respondent, Transpace Pty Ltd, sought to rely on a third statement of evidence, which had been filed and served without leave. This application was opposed by the applicant and the fourth respondent. The second respondent was initially represented by a lawyer in India and subsequently retained Australian lawyers. The second respondent attempted to respond to a further statement of the applicant that had been admitted without objection.

The court considered several legal issues, including the admissibility of the second respondent's third statement of evidence. It examined the cases of Kioa v West, Annetts v McCann, Ainsworth v Criminal Justice Commission, Inghams Enterprises Pty Limited v Michelle Zarb, and Paul Segaert Pty Limited trading as Lidco v Narayan, as well as the procedure and guiding principles of the Personal Injury Commission Act 2020. The court had to balance the principles of procedural fairness and the interests of justice when deciding whether to admit the further evidence of the second respondent.

The court determined that in the interests of justice and procedural fairness, the second respondent's further evidence should be admitted. It issued an amended timetable for the evidence and submissions. The court emphasised the importance of procedural fairness and the need to ensure that all relevant evidence is considered in the case. The decision allowed for a more comprehensive examination of the issues at hand and a fair determination of the apportionment of the lump sum and claims for interest.

Orders