Shi v Transpace Pty Ltd

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 solicitors for the first respondent requested particulars of attempts that had been made to contact potential dependants, and other matters.
The applicant’s solicitors lodged an Application in Respect of Death of Worker (the Application) on 24 November 2022.
The fourth respondent lodged her Reply on 22 December 2022.
The second respondent lodged her Reply on 9 January 2023.
The first respondent lodged its Reply on 10 January 2023.
The third respondent lodged her Reply as an attachment to an Application to Admit Late Documents on 27 January 2023.
The second respondent has lodged an Application to Admit Late Documents dated
26 April 2023 and attached documents.
The applicant has lodged an Application to Admit Late Documents dated 26 May 2023 and attached documents.
The second respondent has lodged an Application to Admit Late Documents dated
9 June 2023 and attached documents.

ISSUE FOR DETERMINATION

The following issue is in dispute:
(a) whether the second respondent is to be granted leave to rely on Application to Admit Late Documents dated 9 June 2023 and attached documents.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The matter was listed for preliminary conference on 2 March 2023. Ms Kha appeared for the applicant; Mr Elder appeared for the first respondent, instructed by Ms Osnabrugge of EML and Ms Dean of iCare; Mr Malik appeared for the second respondent; there was no appearance for the third respondent; and Mr George appeared for the fourth respondent.
Mr Shi, the fourth respondent’s uncle, attended. Ms Huang, interpreter in the Mandarin language, also attended.
The second respondent sought an adjournment of the conference. Ms Kha advised that she had a proposal for apportionment of the lump sum, which she would send to the second respondent.
EML had provided the second respondent with details of a Hindi-speaking lawyer in New South Wales. The applicant undertook to provide a copy of that letter to Mr Malik, who was encouraged to contact that lawyer for assistance.
The matter was listed for further preliminary conference on 23 March 2023.
Ms Kha appeared for the applicant; Mr Elder, instructed by Mr Estreich of EML and Ms Dean, appeared for the first respondent; Ms Singh appeared for the second respondent; there was no appearance for the third respondent; and Mr Barry appeared for the fourth respondent.
Mr Shi again attended. Mr Li, interpreter in the Mandarin language, also attended.
Ms Singh advised that she had just commenced to represent the second respondent and had received the apportionment proposal only the day before. She had briefed counsel to advise as to whether further evidence was required on behalf of the second respondent and was not in a position to advise on apportionment.
The applicant, the second respondent and the fourth respondent sought to make a claim for interest on the lump sum. The first respondent did not object to the claim being made. The fourth respondent also sought to claim the costs of funds management in respect of any amount apportioned to her.
The applicant, the second respondent and the fourth respondent were directed to attempt to agree on apportionment of the lump sum on or before 13 April 2023. Directions were made for the filing and service of submissions on the issues of apportionment and interest, should agreement not be reached. The parties were given liberty to request a further preliminary conference.
The matter was listed for further preliminary conference on 11 May 2023, at the request of the applicant, as the second respondent had filed an Application to Admit Late Documents, attaching additional evidence.
Ms Kha appeared for the applicant; Mr Elder, instructed by Mr Estreich and Ms Dean, appeared for the first respondent; Ms Singh appeared for the second respondent; there was no appearance for the third respondent; and Mr Barry appeared for the fourth respondent.
Directions were made for the filing of a further statement by the applicant, and for the filing and service of submissions. The parties were advised that, at the conclusion of the time allowed for submissions, the dispute would be determined “on the papers”. They were given liberty to request a further preliminary conference.
The second respondent, without leave, and it is assumed without notice to the other parties, lodged an Application to Admit Late Documents dated 9 June 2023, attaching a further statement dated 7 June 2023, and supporting affidavit. The statement was said to address “some factual issues” raised in the applicant’s statement dated 25 May 2023.
On 19 June 2023, I asked that an email be sent to the parties, requesting that they advise on or before 27 June 2023 whether any objected to the admission of the second respondent’s late evidence.
The applicant and the fourth respondent objected to the admission of the second respondent’s late evidence. It is assumed that the first respondent does not object to the evidence.
It is accordingly necessary that I review the second respondent’s further evidence and the parties’ submissions.

EVIDENCE

Documentary evidence

The following documents were considered in making the determination as to whether to admit the second respondent’s Application to Admit Late Documents dated 9 June 2023 and attached documents:
(a)    Application and attached documents;
(b)    Reply by first respondent and attached documents;
(c)    Reply by second respondent and attached documents;
(d)    Reply by fourth respondent and attached documents;
(e)    Application to Admit Late Documents dated 27 January 2023 and attached documents, filed by the third respondent (Reply);
(f)    Application to Admit Late Documents dated 26 April 2023 and attached documents, filed by the second respondent;
(g)    Application to Admit Late Documents dated 26 May 2023 and attached documents, filed by the applicant, and
(h)    Application to Admit Late Documents dated 9 June 2023, and attached documents, filed by the second respondent.

FINDINGS AND REASONS

Evidence of the applicant, Hong Shi

Ms Shi’s first statement is dated 15 July 2022.
She was born in 1973, in China. She is an Australian Permanent Resident.
She was in a de facto relationship with the worker for about 14 or 15 years. They first met when she was a student in around 2006 to 2007 and decided to live together as a couple in or around 2007. They initially lived in an apartment rented by her brother, with him and his friends.
They moved a few times. In 2014 they moved to an apartment she bought at Ashfield, where they had since lived.
They have a daughter, Giselle Gahalian, who was born in 2017. They all lived together in the apartment.
Sumit’s father was murdered in India when Sumit was about 17 or 18. His mother lived with other family members in India. Before his passing, she had almost no interaction with his mother because her English was very limited. As far as she knew, Sumit’s mother was not dependent on him.
She was married previously, and her ex-husband lives in China. They had a daughter, who was married in April 2021, and lives in Sydney. Sumit did not have any previous relationships with children before they met.
Sumit did not pay himself regularly from the company. He had an accountant that did his company’s tax at the end of each financial year.
At the time of Sumit’s passing, she was a housewife, and was not self-employed or employed by the company. She was using the money from their joint account to pay the household expenses.
She has provided a calculation of their expenses as of 7 March 2022. They included council rates; strata, water, electrical and gas bills; groceries; petrol; mobile phones and internet; mortgage; health fund; car insurance and loan; registration and insurance of motor vehicle; and expenses relating to Giselle.
She has also provided copies of bank statements.
She had no knowledge of Sumit’s superannuation account. She did not know if he had a life insurance policy. She and Giselle were financially dependent on him.
Ms Shi’s second statement is dated 25 May 2023. It was made in response to the evidence of the second respondent.
She and Sumit had talked regularly about Ms Devi’s situation. He told her on numerous occasions that she worked in a childcare centre in India.
In 2017, before Ms Devi visited them in Australia, Sumit helped her apply for her visa by employing a migration agent in Australia.
She attached a copy of a letter from Ms Devi’s employer, dated 2 March 2017, stating that leave without pay had been approved for her from 14 April 2017 to 26 September 2017, to visit her son and newly born granddaughter. She would be returning to work on
2 November 2017.
She had a WhatsApp conversation on 25 February 2022 with Sumit’s cousin, Nidhi Gahalian (Nidhi), about Ms Devi’s employment. She attached an extract.
The applicant asked how Ms Devi got to work, and whether it was safe on the way. She asked about COVID-19. She had tried to ask “Mum”, but she did not properly understand, and had told her to talk to Nidhi.
Nidhi responded that Ms Devi’s work was fine. She went by scooty [sic: scooter]. It was a safe way.
Sumit had told her Ms Devi received an army pension after his father died. He assured her she had medical cover as his father had been part of the army.
In about 2017, two months after Giselle was born, Sumit returned to India. He told her he had to deal with issues about land and family real estate. The property in which Ms Devi lived had to be transferred from his father’s name to his name, and there was a family dispute about land being distributed by the worker’s grandfather to his sons and Ms Devi.
She attached a copy of the land transfer records.
She was not aware that Sumit had given general power of attorney (GPA) to Ms Devi on
15 July 2016 until Ms Devi filed her Reply.
From the time she met Sumit, he was constantly working. He worked very hard to support himself in Australia. She was not aware that he needed any financial support from India after he arrived. He told her he started his first job, washing cars, a few days after he arrived in Sydney. He moved on to other part-time work while he studied, and full time work after his studies were completed.
She attached copies of the worker’s 2020 tax return, and those for Transpace for the years 2018 to 2020. The worker did not file returns for 2021 before his death.
The police came to her door on 5 November 2021 and asked questions about Sumit. There had been an accident and they found his “ID”. For the next four days, they were not able to confirm whether he had been involved.
Throughout this time, she was in constant communication with the worker’s cousin, Ankush, updating him. The worker’s death was not confirmed until 9 November 2021, when the coroner called her.
As soon as she found out, she called Ankush and told him. Shortly after, she received a call from the worker’s cousin, Amit, and had to go through everything again. She received many calls from friends and family but could not immediately deal with them, as she was in so much distress.
Sumit did a great deal and made a huge contribution to the family and household. He owned three heavy vehicles and three trailers. Before May 2021, he did very little interstate driving. He only did it if it was not commercially viable to ask other drivers.
Sumit spent most of his time at home, looked after Giselle and played with her. He took her everywhere he went. He spent a lot of time teaching her and taking her to the playground. He did outdoor activities with her, including throwing and kicking a ball. He did the heavy work around the house, including plumbing, moving furniture, household maintenance, and shopping.
Sumit intended for her to stay home full time and look after their home and family. He wanted to grow the business and provide financial support without her working at all. Giselle had her own bank account, and he put $100 per week into it. He did not mind if she did small real estate jobs but emphasised that any work she did could not affect her ability to look after Giselle or his to do his job.
She completed a Diploma in Scientific English in China and worked in the Kirin beer factory. She then moved to Australia to study in 2006. She completed the Advanced Diploma in Hospitality Management, working at a Japanese restaurant while she studied. She did that for 1.5 years.
From 2008 to 2014, she worked as a real estate agent.
Since 19 July 2022, she had worked as a school learning support officer. She was on an annual contract that was renewed each year. Whether it was renewed depended on whether the school had enough government funding to continue to employ her.
She planned to remain in this role as long as she could. If her contract was not renewed, she would like to return to work as a real estate agent. It was the type of role that would allow her to look after Giselle while she worked. She could not afford a nanny.
She attached her statement of assets and liabilities and tax returns for 2020 and 2021. Her parents lived in the property at Wentworth Point and paid the 20% deposit to purchase it. It was held under her name, but in reality, it belonged to them.
She believed she had underestimated her expenses and provided a more detailed list.
She had been advised that if the company or estate did not have sufficient funds to cover the expenses, she was personally liable. She was advised that the worker’s estate was of little or no net value.
Giselle was in good health. She was slightly obese. In about 2019, their general practitioner advised that she had a squint, and she might need glasses in the future.
They were referred to a specialist, who told them Giselle’s eyesight was not currently affected. She recommended a yearly check-up and said she may need surgery in the future.

Evidence of second respondent, Nirmala Devi

Ms Devi’s first statement is dated 9 January 2023.
She was born in 1960 in India and is an Indian Permanent Resident.
She first came to Australia to meet Sumit in 2012 and 2017. He had executed a GPA in her favour. A copy, dated 15 July 2016, was attached. It was provided only for a property that was identified.
She occasionally lived with Sumit at his residence at Ashfield. He lived with her when he came to India.
She had sold a house, with Sumit’s consent, due to some abnormal circumstances, and was residing in rented accommodation. Her husband died in 1998. Sumit was her only son.
Sumit gave her maintenance for her livelihood, and she was fully dependent on him. She had had an operation on her knee twice and was unable to do any work. After Sumit’s death, nobody was alive to look after her and she had become helpless.
When Sumit came to India, he gave maintenance to her in cash. He also transferred money to her bank account. She has provided details of transfers commencing in June 2013 and continuing irregularly until July 2021.
The persons who were dependent on Sumit were herself, Hong Shi, and Giselle Gahalian.
Ms Devi’s second statement is dated 19 April 2023.
Her late husband was the sole breadwinner. He passed away in 1998, when she was aged 38 and Sumit was 14. At the time of his death, her husband was medically retired from the army.
She completed up to year 10 in high school. She had no education after this, and only minimal participation (assumed to mean in the workforce) and had only been a homemaker.
She had poor health. She was diagnosed with diabetes nine years ago, had a controlled diet, and monitored her blood sugar. She had also had issues with her knee and had a total knee replacement about seven years ago.
In her culture, and especially in her generation, it was uncommon for women to be educated beyond school, or to work. They were usually married at a young age and were very dependent on their husbands for support. In their old age, it was expected that the son would care for his parents.
She raised Sumit on her own, with the small pension she received from the government. She received the equivalent of approximately A$36 (assumed to be per month), and now received the equivalent of approximately A$165 per month.
She and Sumit were always extremely close, and he shared everything with her. She was always worried about how she would raise him with the little money she had. They were living in her father-in-law’s house after her husband’s death. With the little money she got, she was able to provide for him.
Sumit was always hard-working. He wanted to achieve something so he could take responsibility for himself and her. He went to a private school, to give him a better opportunity to go overseas. The public education system was very bad in their area. She mainly borrowed from her mother and sister so he would have a better life than in India.

About five years ago, she sold their house to her sister to pay back the money she had borrowed for Sumit’s education and to send him to Australia.
Sumit was admitted to college in India. He studied a Bachelor of Commerce and was accepted to a college in Australia. She did not have the capacity to pay for his flights or accommodation.
Her mother sold her property to loan her money to send Sumit to Australia. He supported himself with that money for the first few years while he was studying. She also borrowed money from family friends to support him in Australia. She borrowed from her mother and sister to send to him. For the first three years, she gave him money she borrowed from her family.
Since she sold her property, she had become a paying tenant at her sister’s house.
When Sumit went to Australia, he was upset that he could not come to visit for a while, as his finances were very poor. As soon as he finished college and started earning an income, he made plans to visit.
In December 2010, Sumit came to visit and stayed with her for three to four weeks.
They spoke every day on the phone. Most days, they would speak for hours. Sumit would call between work hours and keep her updated. He shared everything about his life.
Sumit was happy in Australia and liked the life there. He told her his only worry was that she was all alone in India. He felt he was unable to do all duties as a son, as it is the son that takes care of his parents.
When Sumit met Hong Shi (Selina), he told her he had “met this girl” and they had started living together. She was happy that he had found stability and a partner. He always told her he was excited for her to meet Selina and would have them meet when she came to Australia.
In February 2012, she travelled to Australia to stay with Sumit for three months. She stayed with him and Selina in their house. He booked and paid for her tickets and arranged for her visa and passport. He also applied and paid for her health insurance for the trip. He paid for all her expenses during her stay.
She could not communicate much with Selina, as she does not speak any English. Despite this, she found her to be very caring towards Sumit. She cooked and cleaned and was really involved around the house. She felt she was a good and caring person.
Sumit told her Selina was working as a property broker/agent. She understood she stopped working when she had Giselle.
In November 2012, Sumit visited her in India. He spent approximately 20 to 30 days, which was all the leave he could take, with her. He was happy to be home and spend time with her. He was always sad to leave and said he hated leaving her behind.
In around 2016, Sumit told her they were expecting a child. She was happy for them and excited to be a grandmother. Giselle was born in 2017. She was “so incredibly happy” for Sumit and Selina. He wanted her to go to Australia to be with him and help them. She was excited and delighted to be able to help.
In April 2017, Sumit travelled to India to take her with him to Australia. He was worried about language barriers and her health, as she had undergone knee replacement surgery and had diabetes. Unfortunately, her visa was not approved in time and Sumit had to travel back without her. Her visa was approved in May 2017, and she travelled to Australia on her own.
Sumit completed and paid for her visa application, the flight, and all the costs of her trip. She stayed with them for five months, helping to care for Giselle. She enjoyed this time very much. Selina called her “Mum”, helped with her diabetes diet chart, and checked her blood sugar while Sumit was away. She was very happy that, despite the language barrier, they had a close relationship.
Selina, Sumit, and Giselle planned to visit her in February 2020, but the COVID-19 pandemic had just begun, and he had to cancel the flights. She was incredibly upset.
After the travel restrictions eased, Sumit planned a trip to India with his family for January 2022. Just before he died, he told her they had done their shopping and he was booking the tickets the following week.
She had missed Sumit so much while he was in Australia but was happy to know he had such a good life with Selina and his daughter. She looked forward to their conversations every day. He did all he could to look after and support her. He was her strength.
On 4 November 2021, she received a message from Sumit wishing her [well] for Diwali. He would message when he was busy working and could not call. She assumed he was away for work and would call soon. She did not hear from him the next day, so she kept calling. His phone was ringing but she could not reach him. She had not heard from Selina either.
About three days later, she was contacted by Sumit’s cousin, who lived in New Zealand. He told her it was on the news that there had been a truck accident, the truck caught fire, and the deceased was of Indian origin. She was in a state of panic after hearing this. After not being able to contact Sumit for days, she feared the worst.
On 9 November 2021, Sumit’s cousin contacted Selina, who told him Sumit had passed away. He called to notify her.
On 10 November 2021, she messaged Selina on WhatsApp. She told her Sumit was the only person left in her life, and she had not told her what happened to him. She asked her to give her the right to perform the funeral as per Hindu traditions.
She finally got through to Selina, who told her Sumit had passed away in a motor vehicle accident. Selina told her to stay strong for Giselle and look after herself. She was so distressed upon finding what had happened.
She had no knowledge of the customs in Australia. She wanted to be present to complete the last rites according to their religion. Selina told her she could not bring her over as her visa had not been renewed.
Selina conducted the funeral as per Hindu traditions. She received a link, which she watched online with the help of her family in India.
At six months and at one year after the death of a family member, they perform a “doon”, which is a ritual where they do some charity in the name of the deceased. It is usually done by close family members.
She asked Selina if she could come to Australia for the six-month ritual. She declined. She asked for Sumit’s death certificate. Selina told her to contact her lawyers. She tried to contact them, but they never contacted her back.
She had asked if it was possible for her to come to Australia for the cremation. Selina told her she would not be able to support her in Australia and declined her request.
As Sumit had passed away, she felt so lonely. Selina sometimes sent her pictures and videos of Giselle. She wanted to have a relationship with Selina and her granddaughter but was unsure how she would see them again without the resources to travel to Australia. She saw Selina and Giselle as her family.
She had no substantial savings, as she had no income apart from the old age pension of approximately 9,000 Indian rupees (A$165) per month. She gave her sister 4,000 rupees to stay with her. Her sister did not ask for more, as she knew her financial circumstances, especially as she no longer had ongoing support from Sumit.
About seven years ago, when she had her total knee replacement, Sumit paid all the expenses. He gave her the money in cash. The surgery cost about A$4,084.77. She would not have been able to undergo it without his support.
She has listed her expenses, in rupees, for food; transportation; clothing; medication; and domestic help.
She was always heavily reliant on Sumit for money. He gave her money whenever she ran out of the amount he had previously given her. He told her if she ran short of money he would deposit more in her account. She did not worry as she knew she could rely on him. Since he became financially independent, he had supported her with everything.
She has provided details of amounts she had been able to locate that were deposited to her accounts by the worker. The dates range from June 2013 to July 2021, of varying amounts, the largest being $4,084.77 (assumed to be the cost of the knee replacement) and the smallest being $97.58.
Between 2017 and 2020, Sumit sent money through Western Union. She picked it up at MoneyGram, a small transfer facility in her town. She provided them with her ID card, and they gave her the cash. She had tried obtaining receipts but had been advised that MoneyGram only kept records for one month.
Sumit also gave money for her to friends who were travelling to India. They gave her the money in cash. They were in the vicinity of 40,000 to 50,000 rupees. He also gave her cash when they visited each other. He gave her between $360 and $1,800. She used the money for treatment, food, clothing, travel, and any other expenditures.
Sumit told her he was financially stable, owned three trucks, and he and Selina had several properties. He had one joint property with Selina, each had one in their own name, and there was a fourth. He told her not to worry about money, as he had enough to look after her.
Her sister and her husband, with whom she lived, were ageing and had several health issues. She was worried that if anything happened to them, she would not have a place to live. She could not afford accommodation and had no savings.
With her multiple health issues, she was not sure she could work. It was very hard for a woman of her age to find work, especially in her small town. With her qualifications, she would only be able to find physical work, which would not be possible. It was highly improbable that she would be able to find a job.
When she went to Australia in 2017, Sumit told her there was a visa that allowed people whose only family was in Australia to stay there permanently. He told her he wanted to apply for this visa so she could live with him.
At the time, Selina was trying to bring her parents to Australia from China. She said it would cost around $40,000. Sumit told her about one month before his death that they had helped her parents get 10 year visas. He wanted to try to do the same for her.
On 4 August 2022, Selina asked for her postal address. She did not know why. She then received correspondence from the Commission advising her about this claim. Otherwise, she had not spoken to Selina about money, insurance, or financial matters relating to Sumit since his death. When she asked for details, Selina asked her to contact her lawyers. She had not been able to reach them.
Ms Devi’s third statement is dated 7 June 2023. She referred to her statement dated
19 April 2023 and wished to add to it.
Prior to Sumit’s death, she was a paid volunteer for many years, in a role similar to that of a social worker. This is called “Anganwadi Worker”.
This involved her assisting a few days a month at rural government schools, where she would prepare and serve food for children. She did this to keep herself occupied and give back to the rural community she came from. This role required no education or qualifications, which was why she was able to do it.
When she commenced the role many years ago, the payment was 200 rupees to 300 rupees per month. In the last few years, it had increased to 200 rupees (A$3.65) per day.
Before Sumit’s death, she used to help out about seven to eight days per month. In the last year, she had ceased doing this work regularly. She would earn approximately between 2,000 rupees (A$18) to 4,000 rupees (A$36) per month at the time she stopped. She no longer received a regular income from this.
She only volunteered now one or two days a month, if absolutely required. She was unable to do more. She had had a knee replacement but remained with restricted movement and the pain had increased. Her age and health issues prevented her from continuing this work regularly.
Hong Shi had referred to a property given to her by her father-in-law.
The property is an old, landlocked, ancestral property in the village, which belonged to her father-in-law. Her husband was one of five sons. As he passed away at a young age, the property was put into her name. It is uninhabitable, and a renovation would cost upward of $50,000. It was given to her for 3.57 lakhs, which is equivalent to A$6,480.
In relation to the property in Panipat, which belonged to Sumit, it now belonged to her sister. Sumit gave her the power of attorney to sell it. There was a dispute relating to personal loans she had taken out to pay for Sumit’s education and move to Australia. In lieu of repaying them, she and Sumit decided to sell this property to her sister to pay off most of the loans.
Though the property belonged to Sumit, he did not take any of the money from the sale, as he knew she needed it to pay the loans. All the money was used for this.
Sumit advised her to sell the property, saying he had enough to look after her for the rest of her life. He told her it was no use her holding onto the property, as she would eventually move to Australia permanently.
There were still outstanding loans to be paid to friends and family. She was not being pressured to pay for them, as they were aware her husband and Sumit had both passed away, but was concerned they may still ask her to repay them, if their needs arose.
Her understanding was that Sumit had told Selina she was dependent on him.
She had inherited some gold jewellery when she got married. In their culture, they give gold to new brides. She had given gold and other items to Selina, accepting her as her daughter-in-law, as per her customs.
Prior to his death, Sumit was sending her on average 1 lakh rupees per month, which was equivalent to A$1,850. She only had some record of these transactions, as he would give money to friends travelling to India, who would hand it to her in cash. He would also send money through a money transfer agency, which no longer held records.
She only had the bank transfers Sumit did once in a while. This was not his primary method of sending her money.
At her age, she could not find a job. She also could not take any further loans. If she sold her ancestral property, she would receive only around $10,000.
She was distressed that she may never see her granddaughter again. She did not have the funds to travel to Australia.

Affidavit of Darshan Singh

Ms Singh is Ms Devi’s sister. She swore an affidavit dated 5 June 2023.
She gave Ms Devi a personal loan of “Rs. 25,00,000/- (Rs. twenty five lacs only)”.
Her sister had taken this loan amount from her “now and then as per her requirement. There is nothing else being included in this principal amount”.

Evidence of third respondent, Ziying Zhang

Ms Zhang’s statement is dated 27 January 2023.
She is employed full time as a pricing analyst.
She had received advice and conferred with Mr Matthews of Brydens Lawyers.
She was aware that the worker died on or about 5 November 2021 in a workplace accident.
She lived with her grandparents in China until the age of 16. From the age of 16 to approximately 20, she lived with her uncle in Sydney. She then moved out and had since lived on her own.
The only time she lived in the same residence as the worker was for about one or two weeks, when she moved back in with her mother.
The worker never provided her with any financial or domestic support. It had been explained to her that if she could demonstrate he had done so, she may be entitled to part of a workers compensation death benefit. She did not wish to make a claim.

Evidence of the fourth respondent, Giselle Gahalian

Mr Michael Shi, the applicant’s brother, and therefore the fourth respondent’s uncle, has made a statutory declaration dated 16 December 2022.
At the time of his death, Sumit was in a de facto relationship with the applicant, and had been so for about 15 years. Giselle is the only child of the relationship and was then five years old. She lived with both parents. She was entirely dependent on Sumit for support, as he was the sole breadwinner.
Giselle was currently attending a public school. As far as he was aware, she was in good health. She did not suffer from any medical conditions or abnormalities.

SUBMISSIONS ON ADMISSION OF SECOND RESPONDENT’S LATE EVIDENCE

The applicant, the second respondent, and the fourth respondent have provided written submissions, which I will briefly summarise.

Applicant

The applicant objected to the admission of the evidence on the following grounds:
(a) the statement outlined assertions that were always within the second respondent’s knowledge and did not describe events that had only recently occurred. As they related to her earnings and additional monies provided by the worker, they were always of potential relevance and could have been included in the earlier material, and
(b) to admit the material at this point would cause her forensic prejudice as meeting it would require her legal representatives to lodge further submissions and potentially seek to admit further evidence. This could only be done by further grants of leave, and with consequent further delay and expense.

Fourth respondent

The fourth respondent opposed the admission of the evidence on the following grounds:
(a)    the second respondent had filed and served evidence on two occasions;
(b)    the second respondent had served a statutory declaration dated 9 January 2023, which gave some significant detail as to the basis of her claim;
(c)    the second respondent had served a more detailed statement of evidence dated 19 April 2023;
(d)    she supported the applicant’s objections that the statement described events that occurred a significant period ago. The matters in the statement could, and should, have been provided in the earlier statements;
(e)    to admit the material at this point would cause her forensic prejudice in potentially seeking to admit further evidence. In any event, it would require a detailed comparison between the latest and earlier allegations, and submissions on any issues, and
(f)    should she or any other party wish to adduce further evidence in response to this evidence, it could only be done by further grants of leave, which would involve further delay and expense.

Second respondent

The second respondent submitted that the Commission should have regard to the events that led to her needing to address the matters mentioned in her statement dated
7 June 2023.

Chronology

The applicant filed an “application for dependency” on 24 November 2022. She had had the benefit of Australian legal representation and advice since at least that time. The fourth respondent, by virtue of being a dependent of the applicant, and with mutual interests in the matter, had also been afforded the right of adequate legal representation from the commencement of the proceedings.
The second respondent was not informed of the relevance or significance of the proceedings by the applicant at the time of commencement. She does not speak English, has limited education, and has no knowledge of the rules and regulations that govern these proceedings.
The second respondent initially sought legal representation from lawyers in India. On
28 November 2022, they lodged evidence on her behalf, including her first statement, and some evidence of payments made by the worker.
The matter was referred to Law Partners after the parties agreed there was difficulty moving the proceedings along with the Indian legal representatives.
On 7 March 2023, the second respondent engaged Law Partners.
“Shortly following this”, in conference with the second respondent and a relative assisting her, it became evident that she was unaware of the significance and purpose of the proceedings.
It was determined that the second respondent’s claim had not been adequately pleaded in the evidence lodged by her previous representatives. An Application to Admit Late Documents was made by the second respondent on 21 April 2023 [sic], seeking to admit the second statement.
On 11 May 2023, at the Commission conference, the applicant’s representatives advised that they intended to “admit late documents” that would comprise a “short statement” responding to the second respondent’s evidence. They did not advise that they intended to serve additional evidence of the applicant’s dependency.

There was no objection by the parties in relation to a short statement responding to the matters raised in the second respondent’s (second) statement. That was because, at the time, the parties were not made aware of the additional evidence the applicant intended to submit.
On 26 May 2023, the applicant served her Application to Admit Late Documents, along with her submissions on apportionment and interest.
On 2 June 2023, the fourth respondent served her submissions on apportionment and interest.
On 9 June 2023, the second respondent served an Application to Admit Late Documents, and submissions on apportionment and interest.

Submissions of first respondent

At the Commission conference on 23 March 2023, the first respondent’s representative “expressed” that he believed the second respondent’s evidence, which included only the first statement, was sufficient to adduce dependency.
This contradicted its submissions dated 16 June 2023, which stated that interest should be awarded to the second respondent from 9 June 2023, as this was when her claim for dependency was fully particularised.
In effect, without the evidence served on 9 June 2023, the first respondent believed the second respondent’s claim for dependency was not properly established.

Applicant’s evidence and submissions

The applicant’s further evidence not only consisted of a statement, but evidentiary documents and submissions amounting to 105 pages, alleging an increased dependency on the worker.
The applicant stated that she had “underestimated” her dependency and weekly expenses. She had therefore sought to re-particularise her claim. She also raised matters in relation to the second respondent having employment and property in India. Specifically:
(a)    the second respondent was employed as a childcare worker in India;
(b)    in 2017, the worker returned to India to deal with issues in relation to the family’s property, and
(c)    she was unaware that when the worker arrived in Australia, he had required financial support from anyone in India.
The applicant’s statement did not contain the complete information in relation to the above.

The second respondent’s evidence

The second respondent’s statement dated 7 June 2023 sought to clarify the above matters raised by the applicant in her statement dated 25 May 2023. The applicant was clearly not aware:
(a)    of the nature of the employment held by the second respondent, namely her earnings;
(b)    that the employment was not regular, and she ceased regular employment as a result of COVID-19 and a decline in her health in or around mid-2020;
(c)    that the property referred to in the statement is an ancestral property bought from the second respondent’s father-in-law with a value of approximately A$10,000, and
(d)    the worker sold the property he owned in India to his aunty, who had loaned the second respondent money to help support him in his early days in Australia.
The second respondent submitted it would be prejudicial to her not to be able to rely on her additional evidence as, without it, the nature of her employment and the value of her assets was unclear.
It is unclear what aspect of the second respondent’s evidence the applicant would need to respond to, as it was only a clarification of “these particular issues”.
The second respondent “would like to make note” that the applicant’s evidence went well beyond the scope of what was advised at the Commission conference.
The evidence raised additional claims of dependency and increased expenses, which the applicant had had ample opportunity to provide since the commencement of the proceedings. It was unclear how she failed to provide evidence of higher expenses prior to 26 May 2023, at which time the second respondent was not given an opportunity to respond.
Given the second respondent’s lack of adequate legal advice until March 2023, she submitted she had had far less time than the other parties to prepare and submit her evidence.
The second respondent opposed any further applications by the applicant to serve additional evidence with respect to her statement dated 7 June 2023, on the basis there was nothing new raised in her latest statement.
The second respondent submitted that in the interests of procedural fairness and justice, she should be granted leave to rely on her further evidence. The matters noted in her statement dated 7 June 2023 would assist the Commission to make a determination on apportionment. It clarified and elaborated on the matters raised by the applicant in her statement dated
25 May 2023.

SUMMARY

The second respondent has submitted that in the interests of procedural fairness and justice, she should be granted leave to rely on her further evidence. Both the applicant and the fourth respondent object to the second respondent relying on any further evidence.
The common law rules of procedural fairness apply and supplement legislation and policy, except to the extent that they are specifically excluded.
In Kioa v West,[1] Mason J defined the position in this way:
“The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to a clear manifestation of a contrary statutory contention.’’ (at [31]).
[1] [1985] HCA 81; (1985) 159 CLR 550.
The current test for implying procedural fairness appears in Annetts v McCann,[2] in which Mason CJ, Deane and McHugh JJ said:
“It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.” (at [2]).
[2] [1990] HCA 57; (1990) 170 CLR 596 (Annetts).
Annetts was applied in Ainsworth v Criminal Justice Commission[3], in which the High Court said that legislation was “incapable of excluding the rules of natural justice for they can only be excluded by plain words of necessary intendment’” (at [20]).
[3] [1992] HCA 10; (1992) 175 CLR 564.
Procedures in the Commission are governed by Divisions 5.1 and 5.4 of the Personal Injury Commission Act 2020 (PIC Act).
Section 43 of the PIC Act provides:
“Procedure before Commission generally
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
The PIC Act contains a “guiding principle” that is to be applied in practice and procedure, and which is found in s 42 of the Act.
Section 42 provides:
“Guiding principle to be applied to practice and procedure
(1) The guiding principle for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
(2) The Commission must seek to give effect to the guiding principle when it—
(a) exercises any power given to it by this Act or the Commission rules, or
(b) interprets any provision of this Act or the Commission rules.
(3) Each of the following persons is under a duty to co-operate with the Commission to give effect to the guiding principle and, for that purpose, to participate in the processes of the Commission and to comply with directions and orders of the Commission—
(a) a party to proceedings in the Commission,
(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Commission.
(4) In addition, the practice and procedure of the Commission should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Commission is proportionate to the importance and complexity of the subject-matter of the proceedings
(5) However, nothing in this section requires or permits the Commission to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.”
The Workers Compensation Commission considered the issue of procedural fairness in Inghams Enterprises Pty Limited v Michelle Zarb.[4] Deputy President Fleming said, of the operation of the now repealed s 354 of the Workplace Injury Management and Workers Compensation Act 1998, which was of similar effect to ss 43 and 52 of the PIC Act:
“What constitutes procedural fairness will depend upon the nature of the decision under review (Kioa v West) and may be modified by clear and express provision in the statute. The procedure before the Commission is set out in section 354 of the 1998 Act … While this provision modifies the common law rules of procedural fairness in some respects, for instance, in relation to the determination of matters on the papers, it does not alter the fundamental rule that a party is entitled to be heard in relation to the case against it, before the decision-maker exercises the power to make the decision (Twist v Council of the Municipality of Randwick.” (at [24]-[25]) (Citations omitted).
[4] [2003] NSWWCCPD 15.
In Paul Segaert Pty Limited trading as Lidco v Narayan,[5] Acting Deputy President Roche, as he then was, said:
“There is no doubt that the Commission and its Arbitrators are bound to comply with the rules of natural justice and procedural fairness (Inghams Enterprises Pty Ltd v Zarb).” (at [46]). (Citation omitted).
[5] [2006] NSWWCCPD 15.
What then is required in this case, to ensure compliance with the rules of natural justice and procedural fairness?
The second respondent’s submission that she was not given the opportunity to respond to the evidence of the applicant that was attached to her Application to Admit Late Documents dated 26 May 2023 is rejected.
At the preliminary conference on 11 May 2023, because the applicant advised that she wished to rely on a further statement, the parties were given liberty to request a further preliminary conference. Even had that direction not been made, it would have been open to the second respondent to approach the Commission to request a further conference, at which time she could have sought leave to rely on further evidence, and any modifications required to the timetable set for the provision of evidence and submissions could have been made.
The second respondent has instead chosen to lodge a further statement, without leave and, it would appear, without notice to the other parties. It was inappropriate that she did so.
There is force in the applicant’s submission that the matters raised in the second respondent’s statement dated 7 June 2023 were always within her knowledge, and of potential relevance.
The second respondent has had the advantage of her current legal representation since early March 2023. She was obviously provided with advice as to the evidence that would be required in support of her claim for dependency before she made her second statement, dated 19 April 2023. That evidence would necessarily include details of any employment, and earnings in that employment; of any property held by her; and of any financial support she had provided to the worker.
There is also, in my view, force in the second respondent’s submission that the applicant’s statement evidence of 25 May 2023 goes beyond merely responding to Ms Devi’s evidence. She has provided further evidence of her own dependency that could and should have been provided with the Application which, after all, she has brought.
The second respondent submitted that it is unclear to what aspect of her evidence the applicant would need to respond, as she was merely seeking to clarify the issues raised by the applicant herself. No detail of what further evidence on behalf of the applicant may be required or available has been provided. I do accept that further submissions may be required, as the second respondent’s evidence regarding dependency has changed.
I also accept the submissions of the applicant and the fourth respondent that allowing the second respondent to rely on further evidence would result in further delay and additional expense. That would be particularly regrettable in a case such as this, where liability has been accepted, and the issues are confined to apportionment of the lump sum death benefit and the claims for interest.
However, pursuant to s 42(4) of the PIC Act, I am required to implement the practices and procedures of the Commission so as to facilitate the resolution of the issues in such a way that the cost is proportionate to the importance and complexity of the subject matter of the proceedings.
The amount at issue in this matter is considerable. The proceedings are obviously of great importance to the parties.
I have considered the interests of the second respondent in seeking to rely on further evidence, and those of the other parties. I have concluded that the prejudice to Ms Devi should I not allow her to rely on that evidence would outweigh the prejudice to the other parties by the delay in determining the matter and the added expense of achieving that end.
I therefore determine that the second respondent is granted leave to rely on the Application to Admit Late Documents dated 9 June 2023.
The admission of the further evidence necessitates amendments to the timetable for any applications to admit any further evidence and for submissions.
I have granted liberty to request a further preliminary conference. Any party requesting amendment of the timetable is required to avail itself or herself of that option. No further evidence is to be lodged without leave after 14 July 2023.
The orders are set out in the Certificate of Determination.

[2023] NSWPIC 314

3 July 2023