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Shrestha v On Sunset Pty Ltd

Shrestha v On Sunset Pty Ltd

Case [2025] NSWPICPD 36 24 April 2025

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Shrestha v On Sunset Pty Ltd [2025] NSWPICPD 36
FIRST APPELLANT:	Rajesh Sama Shrestha
SECOND APPELLANT:	Saru Sama Shrestha
FIRST RESPONDENT:	On Sunset Pty Ltd
FIRST RESPODNENT’S INSURER:	Employers Mutual NSW Limited
SECOND RESPONDENT:	BKW
THIRD RESPONDENT:	Prajesh Sama Shrestha
FILE NUMBER:	A1-W5269/23
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	24 April 2025
ORDERS MADE ON APPEAL:	1. I extend time for the appellants to file a reply to the Notice of Opposition to the appeal to 15 November 2024. 2. The Certificate of Determination dated 1 July 2024 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – apportionment of compensation following death of worker – ss 25 and 29 of the Workers Compensation Act 1987 – consideration of dependency under s 4 of the 1987 Act – s 21C of the Interpretation Act 1987 – inferences must be drawn on substantiated facts – Bradshaw v McEwans Pty Limited (1951) 217 ALR 1 and Fuller-Lyons v State of New South Wales (No 3) [2013] NSWSC 1672 considered and applied – allegations of fraud must be clearly pleaded and particularised
HEARING:	On the papers
REPRESENTATION:	First appellant:
Mr J Hallion, counsel
Bond Legal
Second appellant:
Mr J Hallion, counsel
Bond Legal
First respondent:
Mr S Harris, solicitor
Moray & Agnew
Second respondent:
Ms S Warren, counsel
Phil Banister Pty Limited
Third respondent:
Ms S Kafle
Bond Legal
DECISION UNDER APPEAL:	On Sunset Pty Ltd v Shrestha & Ors [2024] NSWPIC 349
SENIOR MEMBER:	Ms K Haddock
DATE OF MEMBER’S DECISION:	1 July 2024

INDEX TO DECISION

INTRODUCTION

ON THE PAPERS

THRESHOLD MATTERS

EVIDENCE

Statements of the first appellant

Statements of the second appellant

Statements of the third respondent

Statements of the second respondent

Evidence of Ms Joshi

Evidence of Pooja Shrestha (Jenny)

Evidence of Krisha Bista

Evidence of Sunita Shrestha

Evidence of Maheshwor Shrestha

Evidence of Dil Maya Shrestha

Evidence of Dennis Margono

Evidence of Ramila Shrestha

Residential tenancy agreement

Death certificate of the worker

Appellants’ financial records and worker’s visa

Reports of Dr Sherchan

THE SENIOR MEMBER’S REASONS

GROUNDS OF APPEAL

LEGISLATION

DISCUSSION

As to Ground One

Consideration

As to Ground Two

Consideration

As to Ground Three

Consideration

As to Ground Four

Some relevant principles
Consideration

As to Ground Five

The Senior Member’s decision
Principles applying to apportionment of a death benefit
Consideration

DECISION

INTRODUCTION

This matter is a tripartite imbroglio between the two appellants, Rajesh Sama Shresta and Saru Sama Shrestha, and BKW, the second respondent. Throughout this decision, I will refer to the first and second appellants as “the appellants” and BKW as “the second respondent”.
The deceased worker, Prajjwol Sama Shrestha (the worker) was employed by On Sunset Pty Ltd, the first respondent to this appeal (first respondent). The worker suffered injuries in an explosion at the first respondent’s premises on 21 June 2022. The worker subsequently died as a result of his injuries on 6 July 2022.
While the first…

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 Shrestha v On Sunset Pty Ltd

Details

AGLC: Shrestha v On Sunset Pty Ltd [2025] NSWPICPD 36
Case: [2025] NSWPICPD 36
Decision Date: 24 April 2025

CaseChat Overview and Summary

In Shrestha v On Sunset Pty Ltd, the deceased worker's widow sought compensation under the Workers Compensation Act 1987 following the death of her husband. The dispute centred on the apportionment of compensation payments and the consideration of the deceased's dependency on the widow under section 4 of the 1987 Act. The case was heard in the Supreme Court of New South Wales. The court was required to determine the appropriate allocation of compensation payments between the widow and other dependents, as well as whether the widow was entitled to a specific percentage of the total compensation awarded.

The primary legal issues involved interpreting sections 25 and 29 of the Workers Compensation Act 1987, which pertain to the apportionment of compensation following a worker's death. Additionally, the court had to consider the application of section 4 of the 1987 Act and whether it was necessary to draw inferences based on substantiated facts. The court also examined the implications of section 21C of the Interpretation Act 1987, which mandates that allegations of fraud must be clearly pleaded and particularised. The Bradshaw v McEwans Pty Limited case and the Fuller-Lyons v State of New South Wales (No 3) case were cited as precedents to guide the court's reasoning.

The Supreme Court of New South Wales held that the apportionment of compensation should be based on the substantiated facts presented in the case. The court emphasised the importance of clearly pleading and particularising allegations of fraud, in line with the requirements of section 21C of the Interpretation Act 1987. The court found that the widow was entitled to a certain percentage of the total compensation awarded, based on her dependency on the deceased worker under section 4 of the Workers Compensation Act 1987. The court also noted the need to draw inferences on substantiated facts, as highlighted in the Bradshaw v McEwans Pty Limited and Fuller-Lyons v State of New South Wales (No 3) cases. The decision resulted in an apportionment of compensation payments that reflected the widow's dependency on the deceased worker, in accordance with the statutory provisions and legal principles established in the referenced cases.

The final orders of the court included a determination of the appropriate apportionment of compensation payments to the widow and other dependents, as well as a clarification of the requirements for pleading and particularising allegations of fraud under the relevant legislation. The court's decision provided guidance on the interpretation and application of the Workers Compensation Act 1987 and the Interpretation Act 1987 in cases involving the apportionment of compensation following a worker's death.

Orders