Shrestha v On Sunset Pty Ltd
[2025] NSWPICPD 36
•24 April 2025
| 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 respondent did not dispute liability, given that there was no agreement about apportionment between the competing dependants, the first respondent commenced these proceedings seeking a determination about dependency and apportionment.
The matter was heard by Senior Member Haddock who determined the matter in a lengthy decision published on 1 July 2024. The Senior Member made findings about dependency and apportionment both of which are challenged in this appeal. The Senior Member also made orders de-identifying the second respondent as BKW, which orders are not the subject of any challenge on appeal.
The fourth respondent before the Senior Member, Prajesh Sama Shrestha, is the worker’s younger brother who disavowed the making of any claim. Formally, he is the third respondent on this appeal, his evidence was before the Senior Member, but he will play no role in this appeal as a party.
The appellants are the worker’s parents, who were at all relevant times residents of Nepal. Before the Senior Member, the appellants argued that they were the sole dependents of the worker, and they challenged the assertion that the second respondent was the worker’s de facto partner or that she was dependent upon him.
The second respondent submitted that she was the worker’s de facto partner and that she was dependent upon him.
All three claim dependency upon the worker for the purposes of the death benefit payable under s 25 of the Workers Compensation Act 1987 (the 1987 Act). The appellants challenge the Senior Member’s decision on both apportionment and the findings about dependency.
The first respondent has admitted liability to pay the death benefit and has paid the entire sum to the NSW Trustee and Guardian (Trustee) pursuant to orders of the Personal Injury Commission (Commission) dated 4 October 2024. Whilst there is no challenge to the fact of the payment to the Trustee, the sums apportioned inter partes are challenged in this appeal. In the circumstances, the first respondent is not an active party in this appeal.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
The appellants however have made an application for an extension of time to lodge submissions in reply. This is following from a Direction made by the Commission dated 14 October 2024 ordering the appellants lodge submissions in reply by 4 November 2024. No submissions in reply were received by that date however on 15 November 2024 the appellants lodged a Form 2C – Application to Admit Late Documents which attached 14 pages of submissions in reply. As no application for an extension of time was requested by the appellant, the Commission issued a further Direction on 18 November 2024 ordering the appellants to make an application for an extension of time and giving the respondents the opportunity to respond.
The appellants lodged an application for an extension of time on 19 November 2024 in support of their application.
On 21 November 2024 the first respondent consented to the appellants’ application for an extension of time. However, the second respondent opposed the application on 22 November 2024.
The provision to file submissions in reply can be found in r 125 of the Personal Injury Commission Rules 2021 (the Rules). The submissions in reply must be filed within fourteen days of the service of the Notice of Opposition. A Direction was made to grant the appellants an extension to file the submissions in reply, under r 126. Unfortunately, the time period specified in the Direction was not complied with.
In this matter the appellants do not reside in the jurisdiction, they are residents of Kathmandu, Nepal. There are unavoidable logistical and language difficulties in such a circumstance. The circumstances of the case are tragic, highly contested and are important to all of the parties. Reviewing this matter, all parties have had issues with compliance with orders or timetables made by the Commission at one time or other. There has been nothing in the appellants’ behaviour that would justify the rejection of the reply submission, which was filed eleven days beyond the date specified in the Commission’s Direction.
In the circumstances, the determination of this appeal would be assisted by having the parties’ complete submissions being before me. Pursuant to r 6 of the Rules, I dispense with the time period specified in the Direction as I am satisfied that it is appropriate to do so.
I grant the appellants leave to rely on the reply submission and I extend the time for the filing of it until 15 November 2024.
EVIDENCE
The Senior Member extensively summarised the lay evidence which was necessary in deciding this case. It is necessary that I refer to the evidence in some detail in order to fairly reflect the totality of the material.
Statements of the first appellant
The first appellant, in his statement dated 22 May 2023,[1] said he was the father of the worker and resided in Nepal. He owns a tailoring shop, but business had been “extremely slow” and he and his family “barely make ends meet”. Since his son’s death, he suffered depression, hypertension and insomnia.
[1] Application in Respect of Death of Worker (ARDW), pp 34–38.
He was first notified of the worker’s death by Ms Anisha Joshi (Ms Joshi), the worker’s cousin, and the second respondent via telephone.
The first appellant states that he was being pursued by creditors for repayment of a loan that he had taken out to pay for the worker’s higher education in Australia. Prior to the worker’s death, the worker had been sending money to the first appellant on a regular basis which was used to repay debts and financially support the household. However, since the worker’s death his “source of income has ceased.” The first appellant states he received some money through fund-raising efforts in Australia.
In a supplementary statement dated 10 July 2023,[2] the first appellant states that he had two sons, the worker and the third respondent. He states that the third respondent was in the twelfth grade in high school and was financially dependent upon him and his wife (the second appellant). The third respondent was not directly dependent on the worker and did not proceed with his claim. The first appellant states that he and the second appellant were completely dependent on the worker and repeats his earlier statement that the worker would regularly send them money which they would use to pay their household bills and everyday living expenses. He relies on bank statements to support his claims of dependency.
[2] ARDW, pp 35–41.
The first appellant states that he did not have enough money to pay for the worker’s tuition fees so he took out a bank loan to support the worker’s visa application.
The first appellant states he was aware the worker was living in an apartment with the second respondent however denies knowing that they were in a relationship.
The worker’s body was returned to Nepal, where, following cremation, a thirteen-day period of mourning commenced, being a ritual in Hinduism. The first appellant states his close friends, relatives and neighbours attended his home during the ritual however neither the second respondent nor her relatives attended.
The first appellant denies being aware the worker and second respondent were in a de facto relationship and the revelation after the worker’s death they were in a relationship with an intention of getting married and starting a family was a complete surprise to him.
The first appellant states he was advised that the second respondent would have to be included in the insurance claim as she and the worker lived together. He again denies that the worker and second respondent were in a de facto relationship.
Statements of the second appellant
The second appellant provided a statement dated 22 May 2023[3] and a supplementary statement dated 10 July 2023[4] that mainly echo those of the first appellant. She works with her husband in their tailoring shop in Nepal, however business was poor and they were financially “barely scraping by”.[5]
[3] ARDW, pp 42–45.
[4] ARDW, pp 49–54.
[5] ARDW, p 42.
Since the death of the worker, she has suffered depression, poor concentration, insomnia and increased sugar levels.
The second appellant states she and her family were being pursued by creditors for a loan they took out to pay for the worker’s higher education in Australia. She states the worker frequently transferred them money to pay their debts and the payments were “critical to the financial stability of my family and me.”[6] She relied on the worker for financial support and the payments covered a few months’ worth of living expenses in Nepal. She was significantly impacted both psychologically and financially as a result of the worker’s death.
[6] ARDW, p 43.
The second appellant states she received funds from acquaintances in Australia who raised money for her and the first appellant through fund-raising efforts.
In her supplementary statement dated 10 July 2023[7] the second appellant states the third respondent is her youngest son and was dependent on both her and the first appellant.
[7] ARDW, pp 49–54.
The second appellant states she was aware the worker was living in the same apartment as the second respondent, however denies knowing that they were in a de facto relationship. She states that their relatives in Australia told her that the second respondent was the worker’s girlfriend however their intention of getting engaged and starting a family was a complete surprise to the second appellant.
The second appellant was disappointed the second respondent failed to come to Nepal to attend the first annual death anniversary and rituals known as “Shraddha Ceremony” despite being invited.
Statements of the third respondent
The third respondent provided two statements. In his first statement dated 15 September 2023[8] the third respondent states that at that time, he was in Year 12 and completing a major in biology and physics as an alternative, which he was due to complete in 8 months’ time. After graduating, he planned to attend medical school or pursue a career in engineering.
[8] Application to Admit Late Documents (AALD) 18 September 2023, pp 1–6.
He states he was financially dependent on the appellants and the appellants were financially dependent on the worker from when the worker arrived in Australia until his death. The worker sent money on a regular basis which paid for all household expenses including utilities and taxes. Since the worker’s death, the financial impact has been “significant”.[9]
[9] AALD 18 September 2023, p 3.
The third respondent had planned to move to Australia once he finished high school to complete further studies, however, due to the worker’s death he no longer plans on coming to Australia.
The third respondent states that since the worker’s death the appellants both developed major depressive disorders and are receiving treatment from a psychiatrist and psychologist, Dr Surendra Sherchan.
The appellants have financially supported him in the past and will continue to support him until he finishes his education. He states that he does not wish to make any claim for apportionment of the lump sum benefit.
The third respondent provided a second statement dated 29 January 2024.[10] In this statement the third respondent states that on 15 January 2024 he was contacted by Pooja Shrestha (Jenny) via a Facebook message who identified herself as a friend of the second respondent. Jenny requested the third respondent call her as she needed to tell him “something really important”.
[10] AALD 9 February 2024, pp 13–19.
The third respondent contacted Jenny on 17 January 2024 who said she had been assisting the second respondent with her claim by drafting emails to her lawyers. Jenny informed the third respondent that the second respondent had been in a romantic relationship with a man named Nischal until December 2021. Jenny forwarded the third respondent a voice recording that the second respondent had left for Jenny. A certified translation of the voice recording was produced in the third respondent’s statement[11] which records the second respondent stating she needs to contact Nischal to request that he deny knowing her however Nischal had blocked her from all social media platforms. The second respondent comments: “If Nischal comes, I won’t get anything.”[12]
[11] AALD 9 February 2024, pp 17–18.
[12] AALD 9 February 2024, p 18.
Statements of the second respondent
The second respondent has made numerous statements. In her initial statement dated 19 May 2023[13] she states that she first met the worker in Nepal when she was 17 years of age. They were initially friends which then developed into a relationship.
[13] ARDW, pp 55–81.
She states the worker moved to Australia in 2017 on a student visa. They had a long-distance relationship for approximately two years until the second respondent also moved to Australia to join him in 2019 on a student visa. The second respondent moved into the worker’s three-bedroom apartment in Parramatta that he shared with two other people where they stayed for approximately one and a half years. During the initial stages of the second respondent being in Australia, the worker financially supported her, paying for groceries, shopping, a mobile phone and her share of the rent.
The second respondent studied an Advanced Diploma in Information Technology at the Australian National Institute of Education and also worked. The second respondent states that at the time of the worker’s death, he was completing post-university studies and was also working two jobs to support himself.
The second respondent describes their financial situation as whoever had money for that week would pay the rent. She states that during the COVID-19 pandemic, the worker lost his job so she transferred him $5,000 so he could pay for his college fees and rent.
In approximately 2021 the second respondent, the worker and their two roommates briefly moved into another unit before the second respondent and the worker moved into their own apartment in late 2021.[14]
[14] Residential tenancy agreement, ARDW, pp 62–80.
Approximately six months prior to the worker’s death the second respondent and worker opened a joint bank account where they would manage their money and pay for groceries and other items. They shared payment of the utility bills.
The second respondent states that she and the worker planned to return to Nepal to get engaged and had dreams of starting a family together.
The second respondent was with the worker in hospital when he passed away, approximately one week after the incident. She accessed the worker’s personal bank account in order to pay for the invoice from the funeral home in the amount of $6,600.
The second respondent made a further statement dated 14 August 2023[15] in response to the statements made by the appellants. She disputes the worker sent regular payments to the appellants however states that he did give them money upon their request, which could be frequent. She disputes the appellants were completely dependent on the worker and states they had a tailoring business in Nepal which they had established when the worker was nine years of age.
[15] Second respondent’s Reply to Application in Respect of Death of Worker (reply), pp 1–4.
The second respondent was not involved in the fund-raising efforts following the worker’s death however believed $20,000 was raised and sent to the appellants.
The second respondent denied the appellants were unaware of her relationship with the worker and states on many occasions she and the worker would together speak to the appellants. The second respondent states she had a good relationship with the second appellant and would speak to her often. She was upset by the appellants’ comments they were unaware of the relationship between her and the worker.
The second respondent explains that she was unable to return to Nepal following the worker’s death for various reasons including issues with her student visa and also due to the expense of travelling.
She states in early 2022 both she and the worker had several conversations with the appellants about when they were going to get married. She repeats that their intention was to return to Nepal to become engaged. She recalled the second appellant was encouraging them to return to Nepal in September 2022 and finalise their marriage rather than being engaged, considering they had been in a relationship for a long time.
A further statement was made by second respondent[16] in response to photographs and videos lodged by the appellants which were obtained from the second respondent’s social media accounts. The photographs and videos depicted the second respondent out with friends at dinner and a nightclub following the worker’s death.
[16] Lodged with the Commission on 2 February 2024.
The second respondent explains that following the worker’s death she was not sleeping well and felt completely lost. She was living in Australia and away from her family and friends in Nepal, so relied on her Australian friends for support. She states she was encouraged by her friend, Elice, to go to dinners and nightclubs to help her recover. Following the death of the worker, his family’s behaviour changed towards her, and they abandoned her. She was unable to continue to study however had plans to enrol again in February 2024.
The second respondent states that following a teleconference with the Commission in October 2023, she was contacted by the second appellant who requested she cease the case. The second respondent provided photographs of herself and the worker between 12 March 2022 until 20 May 2022 as evidence she maintained a de facto relationship with the worker up until his death.
The second respondent also provided a statement[17] in response to the statutory declarations of Pradip Shrestha (Pradip) and Anisha Joshi (Ms Joshi) who had both denied the second respondent and worker were in a de facto relationship. The second respondent explained that in the Nepalese culture, the terms cousin and brother or sister are sometimes used interchangeably, and that Pradip is the husband of Ramila Shrestha, who is a cousin of the worker. Ramila Shrestha is also a distant cousin of the second respondent.
[17] Lodged with the Commission on 2 February 2024.
The second respondent agreed with Pradip’s remarks that Pradip would only see the second respondent and the worker on special occasions. The second respondent referred to the Death Certificate which was completed by Pradip’s wife and recorded the second respondent as the worker’s de facto, and disputed Pradip’s remarks that he was only aware that the second respondent was the worker’s girlfriend after his death.
The second respondent states that when she and the worker would meet with Pradip and Ramila, there would often be discussions of marriage and their future together.
When addressing the statement made by Ms Joshi, the second respondent states that neither she nor the worker had a close relationship with Ms Joshi. Ms Joshi had only been to their apartment on two or three occasions however the second respondent was unable to recall which apartment Ms Joshi had visited. She rejected Ms Joshi’s claims that she did nothing around the house and states that as the worker was studying and working two jobs, and she mainly worked in the mornings, she would buy groceries, clean and cook dinner for the worker before he went to his night job.
She denies that the worker had a close relationship with Ms Joshi, particularly one where he would share intimate details of their relationship. The worker had never mentioned Ms Joshi to the second respondent nor that he had spoken with her. The second respondent states that it was normal for the worker to mention when he was in contact with his family members and other friends.
The second respondent states that both she and the worker had planned to move to a regional location when it became necessary under his visa conditions. She denied having an affair with Nischal and states she and Nischal were just friends from college.
She denies Ms Joshi’s statement that she and the worker did not know each other’s phone passcodes. She states she was only able to make the payment for the funeral expense by transferring money from the worker’s account as she knew his banking details.
The second respondent states that neither she or the worker made a post to social media about becoming engaged or married because they had not yet become engaged. They had merely discussed their intention of becoming engaged when they returned to Nepal.
During the time the second respondent and the worker lived in their own apartment, two girls from Nepal had stayed with them for a period of a few weeks while the girls were looking for somewhere to live. If the girls had stayed any longer, they would have been required to inform the real estate agent. The second respondent states that they were merely helping the girls as they could sympathise with the difficulties of being a stranger in a foreign country. They did not know the girls prior to their arrival. The second respondent could only recall one of the girls’ names.
The second respondent states that following the accident, Ms Joshi had been in regular contact with her and encouraged her to go out. The appellants requested she give the worker’s laptop and phone to Ms Joshi so Ms Joshi could return it to Nepal. The second responded complied with their request. It was only after Ms Joshi had returned from Nepal that things changed, and Ms Joshi blocked the second respondent’s telephone number.
The final statement given by the second respondent was dated 26 March 2024[18] in response to the statutory declaration/statements of Ramila Shrestha, Prajesh Shrestha and Pooja Shrestha who had all denied the second respondent was in a de facto relationship with the worker. She again disputed the allegations that she was not in a de facto relationship with the worker. She produced a screenshot of text messages between herself and the worker on 21 June 2022, the evening of the accident. In the text exchange, the worker informed the second respondent he was very busy, and he was making happy hour cocktails. The second respondent replied that she missed him, she would put his dinner in the fridge for him to have when he gets home, and she was going to bed.
[18] Lodged with the Commission on 26 March 2024.
She denied having a romantic relationship with Nischal and states they were good friends from college. She attempted to contact Nischal so he could provide a statement for her solicitors to confirm that they were just college friends however she was unable to contact him. She believes she only met up with Nischal on two or three occasions after the worker had passed away.
In response to the statutory declaration made by Jenny, the second respondent states that she met Jenny in October 2023 and they became friends. She moved into Jenny’s shared house in January 2024 for a period of a week however following a disagreement between the two, she moved out and has not had any contact with Jenny since that time.
Evidence of Ms Joshi
Ms Joshi provided two statutory declarations in support of the appellants. In her statutory declaration dated 25 November 2023[19] Ms Joshi states that she and the worker spoke on a regular basis however she only met up with him and the second respondent on special occasions. When she moved to Australia in 2018 the worker picked her up from the airport, helped her open a bank account and purchased her a sim card for her phone.
[19] AALD 1 December 2023.
She states that when she visited the apartment of the worker and second respondent, she observed that the second respondent would not do anything around the house and that the worker would do the grocery shopping, cleaning and cooking. Ms Joshi would even help the worker around the house when she was invited for dinner or for a get together.
Ms Joshi states that the worker confided in her about fights he had with the second respondent, which was almost on a daily basis. She says the worker would work until 10pm every night and the second respondent would leave at that time to go out with her friends. She states that the worker never discussed his intention of getting engaged to the second respondent and that they were nothing but a casual boyfriend and girlfriend.
Ms Joshi states that the worker informed her that he had opened a joint bank account with the second respondent for the purpose of shared rent expenses, however they had separate bank accounts where they would receive wages.
Approximately six months prior to the worker’s death, the second respondent phoned Ms Joshi to tell her that the worker had found out about an affair she was having with a man at her college named Nischal.
Ms Joshi denied ever being told by either the second respondent or the worker of any intention for them to be engaged or married. She states the worker had intended on relocating to a regional area for permanent residency purposes.
Ms Joshi states that on 6 July 2022, being the date the worker passed away, she witnessed Nischal and the second respondent being in contact continuously throughout the day. The second respondent stayed at Ms Joshi’s house that night and left with Nischal the following day.
Ms Joshi states she was disappointed to see photographs and videos of the second respondent partying at a pub in the days following the worker’s death.
She denies the worker and second respondent were in a serious relationship and states that neither knew each other’s phone passcodes.
The second statutory declaration of Ms Joshi dated 2 December 2023 essentially repeats her earlier statement that she was not aware of any intention that the second respondent and worker were to be engaged and there were no notifications on social media by either the worker or the second respondent to reflect that intention. The second respondent and worker were living with two other housemates in their Parramatta unit and she had been there on at least four occasions between 2021 and 2022.
Evidence of Pooja Shrestha (Jenny)
Jenny provided a statutory declaration dated 7 February 2024.[20] She states that she became friends with the second respondent through a mutual friend and within a short period of time they became best friends.
[20] AALD 9 February 2024, pp 20–31.
Jenny states that the second respondent had confided in her about her relationship with Nischal. She states in December 2023 she received a call from the second respondent who was worried that if the relationship with Nischal was discovered, she would not receive any insurance money. At that time, Nischal and the second respondent were no longer in a relationship and Nischal had blocked her from all social media accounts. The second respondent requested that Jenny contact Nischal and request that he “does not open up his mouth”. The second respondent contacted Jenny regularly throughout December 2023 for an update as to whether she had spoken to Nischal.
Jenny produced voice recordings from the second respondent to Nischal where the second respondent said, “I know things did not work out between us …”, and requests that he deny knowing the second respondent and she trusts that he will not interfere with her present or future.
Evidence of Krisha Bista
Ms Bista provided a statement dated 30 January 2024 in support of the second respondent.[21] Ms Bista rented a three-bedroom apartment with her partner, another couple and the worker. She states that when the second respondent moved to Australia she moved into their apartment and shared a room with the worker. They all lived in the apartment together for approximately one year and then once the lease ended, they rented another apartment with the second respondent and worker.
[21] Lodged with the Commission on 2 February 2024.
Once that lease had expired the second respondent and worker moved into another apartment together, while Ms Bista moved to the USA and did not return to Australia until March 2022. In total, she lived with the second respondent and the worker for a period of approximately two years and during that time she witnessed them to be in a normal de facto relationship where they would cook each other dinner and loved each other. They had arguments however nothing out of the ordinary. She heard them discuss marriage in the future in a general sense, however there were no specific plans in place at the time she was sharing an apartment with them.
Evidence of Sunita Shrestha
Sunita Shreshtha is the sister of the second respondent and made a statement dated 6 February 2024.[22] She supports that the second respondent and worker had intended on getting married in Nepal. She had regular conversations with both the worker and the second respondent discussing their plans to be engaged and married.
[22] Lodged with the Commission on 6 February 2024.
Evidence of Maheshwor Shrestha
Maheshwor Shrestha is the father of the second respondent and made a statement dated 6 February 2024.[23] Maheshwor confirms the second respondent and worker had been in a relationship since the second respondent was in Year 9. The worker had asked the second respondent to follow him to Australia and the worker had told Maheshwor that he would look after her. The worker had made all arrangements for the second respondent to move to Australia and he was in regular contact with her while they were apart.
[23] Lodged with the Commission on 6 February 2024.
Maheshwor states that the second respondent and worker had intended on returning to Nepal for the Nepali festival, Dashain to have their engagement in November 2022. He had an informal discussion with the first appellant regarding the engagement plans and they decided that formal plans would be arranged once the couple returned from Australia.
Evidence of Dil Maya Shrestha
Dil Maya Shrestha is the mother of the second respondent and provided a statement dated 6 February 2024.[24] She states that she was aware of the second respondent and worker’s plans to come back to Nepal to get married and that she had had a conversation with the second appellant regarding these plans.
[24] Lodged with the Commission on 6 February 2024.
She states that the second respondent and the worker had been in a relationship as boyfriend and girlfriend since high school and when the worker left for Australia, he insisted the second respondent join him.
Evidence of Dennis Margono
Dennis Margono (Ms Margono) provided a statement dated 5 February 2024 and states that she was best friends with the worker since they worked together at Harris Farm warehouse.[25]
[25] Lodged with the Commission on 6 February 2024.
Ms Margono states that she and the worker would frequently walk to and from the train station together and she would meet up with both the worker and the second respondent each fortnight to go to lunch or dinner.
Ms Margono was aware that the worker and the second respondent had been boyfriend and girlfriend for a long period of time, they lived together in an apartment and were in a domestic relationship together. Ms Margono produced photographs of herself, the worker, second respondent and other friends celebrating a birthday on 14 March 2022. Ms Margono states the celebration was only a few months before the worker’s accident and they were “certainly still a couple at this event.”[26]
[26] Lodged with the Commission on 6 February 2024, p 11.
Ms Margono states that approximately two weeks before the worker’s accident, the worker told him of his intention to move interstate with the second respondent and they were going to get married.
Ms Margono states the worker and second respondent had fights and disagreements however they always made up and appeared devoted to each other.
Ms Margono recalls that in the morning following the accident she woke to see a text message from the second respondent stating that the worker had been in an accident and was in hospital. She went to Concord Hospital where she met with the second respondent who was upset, crying and in shock. She witnessed the second respondent make a videocall to the appellants to let them know what had happened. She states that both she and the second respondent went to the hospital every day until the worker’s death.
Evidence of Ramila Shrestha[27]
[27] AALD 9 February 2024, pp 3–5.
Ramila Shrestha is the worker’s “cousin sister”. Ramila states she was nominated as next of kin and was dealing with the hospital regarding the worker’s admission. She was also dealing with the insurance relating to the worker’s death and the funeral process. She states that the second respondent was not involved in any of the claim process.
Ramila’s husband, Mr Pradip Shrestha, lodged the death certificate online. She recalls having a discussion with her husband about the death certificate and that he could not find an option where he could put the second respondent as the worker’s girlfriend. They did not understand the difference between a girlfriend and a de facto partner so submitted the form online with the second respondent being recorded as a de facto.
Ramila disputes that the second respondent was the worker’s de facto but rather a casual girlfriend/boyfriend relationship. She states that neither herself nor her husband saw the worker or the second respondent on a regular basis as they were busy with their own lives and would only meet on special occasions. However, whenever they did see each other, there had never been any discussions of an engagement or wedding.
Residential tenancy agreement[28]
[28] ARDW, pp 62–80.
The worker and the second respondent had entered into a residential tenancy agreement for a premises at Parramatta NSW 2150 with a commencement date of 17 November 2021 until 17 May 2022. The lease states that there were to be no more than two occupants residing in the property.
The lease was signed by both the worker and the second respondent.
Death certificate of the worker[29]
[29] ARDW, p 1.
The death certificate states the worker’s marital status at the date of his death was “De facto”. The certificate states the worker was 20 years of age when he married, and his spouse was recorded as the second respondent.
Appellants’ financial records and worker’s visa
The worker was granted a temporary student visa on 23 August 2017 and was issued with a Visa Grant Fact Sheet.[30] The Visa Grant Fact Sheet provides various visa conditions including the requirement to inform the Department of Immigration and Border Protection (the Department) of any changes including “name, passport, contact details, address or family members”.[31] Failure to notify the Department of changes can have serious consequences.
[30] AALD 27 October 2023, pp 31–40.
[31] AALD 27 October 2023, p 39.
The first appellant and Mr Suresh Raj Joshi (the worker’s maternal uncle) sponsored the worker in respect of his student visa by way of letter dated 21 July 2017.[32] They declared they had “sound financial ability based to meet our sponsorship commitment and obligation in support” and attached financial records in support.
[32] AALD 27 October 2023, p 60.
The financial records in support included a signed letter from Nabil Bank dated 25 July 2017[33] certifying the first appellant’s bank balance and available balance as of 24 July 2017 was NPR 3,704,859.99, being the equivalent of $44,777.13 AUD.
[33] AALD 27 October 2023, p 61.
There is a lengthy undated letter from the worker to the Visa Officers, Australasian High Commission[34] stating that the first appellant and his maternal uncle were fully sponsoring him during his studies in Australia which included tuition fees, accommodation, and traveling costs. He states the first appellant has undertaken overdraft credit facilities in the amount of approximately $44,718.13 AUD. He also states the first appellant has “reliable and regular source of income from business of clothes and cottons. He runs S & R tailor from where he has annual income of NPR 1,260,183.20 (equivalent to AUD 15,475.66)”[35] and receives rent which provides an annual income of NPR 240,000 (equivalent to $2,947.32 AUD). Additionally, his father owns property with a value of NPR 31,805,200 (equivalent to $388,294.47 AUD) where he could utilise an emergency loan if needed. He notes his intention of returning to Nepal after he has completed his studies. He states he has family and relatives back in Nepal who support him and as he is the eldest son of the appellants, he has responsibilities towards them.
[34] AALD 27 October 2023, pp 63–75.
[35] AALD 27 October 2023, p 70.
The first appellant produced bank statements for the periods 1 January 2018 – 1 January 2022 and 15 December 2016 – 11 February 2023 to demonstrate the worker had transferred him money on many occasions.[36] It is unclear what transactions the appellants purport are from the worker. Some transactions are underlined however there is no clear transaction from the worker. A credit of NPR 3,700,000 was received on 24 July 2017 which is evidently from the use of an overdraft facility as stated by the appellants.[37]
[36] First appellant’s reply, pp 30–40.
[37] First appellant’s reply, p 34.
Reports of Dr Sherchan
Senior consultant psychiatrist, Dr Surendra Sherchan, provided reports dated 15 November 2022 relating to the appellants. The reports are similar in that the doctor diagnoses both appellants with major depressive disorder of moderate degree which was precipitated by the death of the worker and that treatment had been received since the worker’s death and due to continue.[38]
[38] First appellant’s reply, pp 41; 67.
THE SENIOR MEMBER’S REASONS
After summarising the submissions of the parties, the Senior Member set out the terms of s 25 of the 1987 Act relating to “Death of worker leaving dependants”, the definition of “dependants” in s 4 of the 1998 Act and the meaning of “de facto partner” set out in s 21C of the Interpretation Act 1987. The Senior Member also set out the terms of s 29 of the 1987 Act relating to apportionment of payment between dependants and the principles arising from TNT Group 4 Pty Ltd v Halioris,[39] Wratten v Kirkpatrick[40] and Kaur v Thales Underwater Systems Pty Ptd.[41]
[39] (1987) 8 NSWLR 486.
[40] [1996] NSWCC 2; 15 NSWCCR 32 (Wratten).
[41] [2011] NSWWCCPD 6.
The Senior Member was not satisfied that the appellants were wholly dependent for support on the worker,[42] however accepted partial dependence.[43]
[42] On Sunset Pty Ltd v Shrestha & Ors [2024] NSWPIC 349 (reasons), [489].
[43] Reasons, [497].
While the Senior Member approached the second respondent’s evidence “with some caution”[44] she accepted the second respondent and worker commenced a relationship in Nepal in or about 2017 and that the second respondent moved to Australia in 2019 to be with the worker when she was 19 years of age.[45]
[44] Reasons, [498].
[45] Reasons, [502]–[503].
The Senior Member accepted the evidence of Ms Bista and Ms Margono that the second respondent and worker were in a relationship at the time of the worker’s death. Although the Senior Member considered it likely that the second respondent and Nischal had a relationship that extended beyond mere friendship, she noted that the existence of an affair does not, in itself, preclude the second respondent from being regarded as the worker’s de facto partner. The Senior Member was ultimately satisfied that at the time of the worker’s death, the second respondent was in a de facto relationship with the worker which was supported by the evidence of Ms Margono and text exchange between the worker and the second respondent on the night of the accident.[46]
[46] Reasons, [506]–[521].
The Senior Member found that the appellants and second respondent were all partly dependent for support on the worker, however decided the second respondent had a greater claim on the basis the worker would have likely supported her for some 60 years into the future, given the young age of the worker at the time of his death.
Given the past sporadic payments made by the worker to the appellants which equated to approximately $4,100 per annum between 2017 and 2022, the Senior Member was of the view that the payments may have continued for a further 20 years however may not have been at the same rate and frequency.[47]
[47] Reasons, [524]–[527].
The Senior Member noted the third respondent was not dependent on the worker and did not make a claim on the death benefit.[48]
[48] Reasons, [528].
The Senior Member determined 70% of the lump sum be apportioned to the second respondent and 15% equally to each appellant.[49]
[49] Reasons, [529].
The Senior Member also made findings in respect of interest and de-identification orders however as neither are the subject of this appeal, the reasons for such findings have not been repeated.
The Certificate of Determination issued on 1 July 2024 records:
“1. The [first respondent] is to pay to the [first appellant], pursuant to s 25(1) of the Workers Compensation Act 1987, the sum of $129,352.50.
2. The [first respondent] is to pay the [second appellant], pursuant to s 25(1) of the Workers Compensation Act 1987, the sum of $129,352.50.
3. The [first respondent] is to pay to the [second respondent], pursuant to s 25(1) of the Workers Compensation Act 1987, the sum of $603,645.
4. The [first respondent] 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 appellant] 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 [first respondent] 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 appellant] 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 [first respondent] 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 26 March 2024 to 28 June 2024, in the amount of $9,949.35.
7. Pursuant to rule 132 of the Personal Injury Commission Rules 2021, the [second 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.”
GROUNDS OF APPEAL
The appellants rely on the following five grounds of appeal:
(a) Ground One – Error of law determining the matter on a basis not put by, or to, the parties contrary to the duty under s 43 “to act according to equity, good conscience and the substantial merits of the case.”
(b) Ground Two – Denial of procedural fairness.
(c) Ground Three – Error of fact and law – No evidence for finding of fact “that at the time of his death, they had resumed their relationship.”
(d) Ground Four – Error of law – Failing to give reasons in respect of the evidentiary matters referred for consideration in respect of [the second respondent’s] credibility.
(e) Ground Five - Error of fact and law – Dependency of first and second respondents.
I would note that in relation to Ground Five, the reference to “respondents” appears to be in error. The reference ought correctly be to the appellants. I will proceed on that basis.
LEGISLATION
Section 25(1)(a) of the 1987 Act provides:
“25 Death of worker leaving dependants (cf former s 8 (1))
(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[50] (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, …”
[50] By virtue of the SIRA Workers Compensation Benefits Guide, this amount increased to $862,350 at the time of the worker’s death.
Section 29 of the 1987 Act relevantly sets out as follows:
“29 Apportionment of payments between dependants (cf former s 59)
(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).”
Section 21C of the Interpretation Act 1987 (NSW) relevantly provides:
“21C References to de facto partners and de facto relationships
(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 294(2) of the 1998 Act provides that “[a] brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
Rule 78(2) further requires that:
“(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a) the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the appropriate decision-maker’s understanding of the applicable law,
(c) the reasoning processes that led the appropriate decision-maker to the conclusions made.”
DISCUSSION
The appellants initially filed a set of submissions in support of the appeal. However, these were superseded by an Amended Submission, filed in response to a Direction of 30 July 2024. These Amended Submissions are dated 6 August 2024, and are what I will have regard to in the determination of this appeal. In the appellants’ submissions, the first instance decision maker is erroneously referred to as a “Member.” The member was in fact a Senior Member of the Commission and will be referred to as such in this decision.
Before turning to the various grounds of appeal, it is necessary that I set out the principles that apply to appeals and which I will apply in this matter. Appeals are governed by s 352(5) of the 1998 Act. This provision requires the appellant to show that the decision was affected by error of fact, law, or discretion. An appeal is not a review or new hearing. The approach to error under s 352(5) of the 1998 Act is discussed at length in Raulston v Toll Pty Ltd.[51]
[51] [2011] NSWWCCPD 25 (Raulston), [17]–[31].
Additionally, given the manner in which aspects of this appeal have been argued, I set out the approach to the hearing and determination of disputes in the Commission. Firstly, the rules of evidence do not apply to Commission proceedings.[52] Secondly, the “Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”[53] Thirdly, r 67 of the Rules specifies the requirements for the lodgement of documents in applicable proceedings. Fourthly, by virtue of r 67, each party must lodge and serve material, including witness statements, which they intend relying on in the proceedings. Fifthly, in the context of Commission proceedings, there is no denial of natural justice if the party is aware of the case that he or she has to answer and there is an opportunity to reply.[54] Sixthly, a Member of the Commission is bound to observe the obligations of procedural fairness.[55] However, the extent and application of this right must be considered in light of the legal context in which the decision maker is operating.[56] Seventhly, a tribunal decision maker is not required under the rules of procedural fairness to give a “running commentary” upon what the member is thinking about the evidence.[57] Eighthly, the Commission is not bound by strict pleadings.[58] Ninthly and finally, a party is bound by the conduct of their case.[59]
[52] Section 43(2) of the 2020 Act.
[53] Section 43(3) of the 2020 Act.
[54] New South Wales Police Force v Winter [2011] NSWCA 330 (Winter), from [81].
[55] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (Edmonds), [91].
[56] Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34 (Aluminium Louvres), [67].
[57] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (SZBEL), [48].
[58] Tray Fit Pty Ltd v Cairney [2015] NSWWCCPD 2, [41].
[59] Hornsby Shire Council v Salman [2024] NSWCA 155, [91], per Adamson JA, (White JA agreeing).
As to Ground One
The essential complaint made by the appellants is directed to the Senior Member’s finding at reasons [519], where the following appears: “Whatever may have occurred between [the worker] and [the second respondent] 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.” This finding, the appellants submit, is “ultra vires jurisdiction”.[60]
[60] Appellants’ amended submissions 6 August 2024, [6].
The appellants say that “the decision of the Member involved error in finding that [the second respondent] had at some time had been in an ‘affair’ with Nischal but had ‘resumed’ an exclusive de facto relationship with [the worker] at the time of the [worker’s] death on 6 July 2022.”[61] The appellants say that the Senior Member disclosed “no clear path of reasoning as to how the [Senior] Member concluded that [the second respondent] had ended a relationship with Nischal and ‘resumed’ a relationship with the [worker].”[62] The appellants assert that this conclusion is not supported in the evidence or in the submissions of the parties, but rather involves the Senior Member attempting “to resolve the irreconcilable positions of the parties there was no relationship with Nischal Sharma and the finding of the [Senior] Member of a relationship with Nischal.”[63]
[61] Appellants’ amended submissions 6 August 2024, [4].
[62] Appellants’ amended submissions 6 August 2024, [8].
[63] Appellants’ amended submissions 6 August 2024, [9].
The appellants rely on the evidence of Ms Joshi, who related that the second respondent has told her about a “big fight” with the worker in about December 2021 as the worker had apparently learnt of the second respondent’s affair with Nischal. Additionally, Ms Joshi said that Nischal was contacting the second respondent during the worker’s hospitalisation and the day after his death.[64] The appellants point to the evidence of Pooja Shrestha (Jenny), which the Senior Member found the second respondent had not disputed,[65] as being “indirect and circumstantial evidence from which the [Senior] Member was invited to draw inferences in respect of [the second respondent’s] conduct and admissions against interest.”[66] The appellants say it was open, on Jenny’s evidence, for the Senior Member “to infer [the second respondent] was in a relationship with Nischal at the time of death and that [the second respondent] should not be believed.”[67]
[64] Appellants’ amended submissions 6 August 2024, [10], [13].
[65] Reasons, [499].
[66] Appellants’ amended submissions 6 August 2024, [18].
[67] Appellants’ amended submissions 6 August 2024, [19].
The appellants argue:
“21. The evidence of Jenny and [the second respondent] was unambiguous that her relationship with Nischal was not in the past but at the time of death. So, the question arises as to what the Member was referring to in her supposition as to [the second respondent’s] impression that ‘if she had an affair with someone else, she would not be regarded as [the worker’s] de facto partner. That is not necessarily the case’
22. On the evidence and submission before the Member it is not apparent as to why [the second respondent] had formed an ‘impression’ other than that supported in the evidence nor why on the evidence and submissions she was wrong to believe ‘if she had an affair with someone else, she would not be regarded as [the worker’s] de facto partner’.
23. The Member does not disclose why on the evidence and submissions [the second respondent’s] apprehension was wrong and ‘not necessarily the case’.
24. Implicit in the Member’s observations but inconsistent with the evidence and parties’ submission is that while there was some type of ‘affair’ it had ceased [and] [the second respondent] had resumed a de facto relationship with [the worker] at the time of his death.
25. Assuming this was the approach of the Member to the issues the Member was having regard to matters to which the parties were not privy nor given the opportunity to address.
26. There was no other case before the Member (other than [the second respondent’s] evidence of no relationship ever with Nischal) and so the Member’s supposition that [the second respondent] was acting under a misapprehension due to an ‘impression that, if she had an affair with someone else, she would not be regarded as [the worker’s] de facto partner. That is not necessarily the case’ indicates considerations which [were] not open on the evidence or submissions.”
In her Notice of Opposition, the second respondent says that the Senior Member’s reasoning on this ground was not limited to that found at reasons [519], pointing to the additional matters found by the Senior Member at reasons [520]– [521]. These findings, the second respondent says, were based on arguments put by the parties.
The second respondent submits:
“17. Indeed, the second respondent disputed the appellant's assertion that the relationship had broken down specifically in her written submissions of 14 May 2024. In relation as to whether there was a breakdown of the relationship, this was covered by the second respondent in the written submissions at paragraph 50. It was an argument squarely placed before the Member that even if there had been a breakdown of the relationship, the second respondent ought to be found a de facto partner. Further, it was squarely put before the Member that there was evidence to support a de facto relationship as at the date of the death of the [worker].
18. It was the Member's role to evaluate all of the available evidence as well as the arguments made by the parties which included assertions by the appellants that if there was a relationship it had broken down, compared to an assertion by the second respondent that there was a de facto relationship as at the date of the death of the [worker]. It is clear from the reading of the Statement of Reasons of the Member that the Member has duly undertaken this task.”
The second respondent further submits:
“36. The second respondent respectfully submits that the appellant’s submissions fail to identify appellable factual error. Rather, they argue that the Commission should be persuaded in favour of a different result. The second respondent refers to the above authorities and Heggie and submits that the Commission is not entitled to interfere with the Member’s decision ‘on the ground that [they] think that a different outcome is preferrable’.
37. The second respondent disputes the appellants’ submissions at [25] that the approach of the Member was in a way to which the parties were not privy nor given the opportunity to address.
38. The second respondent submits that issues in dispute, being the nature of the relationship between the [worker] and the second respondent, was squarely put in issue before the Member and the evidence before the Member traversed an extensive timeframe including up to the [worker’s] death as well as covering periods post that time which were not relevant as to the assessment of the relationship as at the time of death.”
And:
“40. The second respondent reiterates that the nature of the relationship between the second respondent and the [worker] was squarely put in issue by all parties to the Member. It was an issue that the Member had to make a finding of and in which the Member did after fully considering the balance of the evidence before the Commission.
41. There was no basis of the Member’s rationale or finding that was outside the arguments made by the parties nor was it something that needed to be specifically raised by the Member to the parties for comment.
42. The nature of the relationship between the [worker] and the second respondent and the existence of any alleged affair with Nischal formed part of the fact-finding as it was an argument raised by the appellants.”
In their reply submissions dated 14 November 2024, the appellants state the following:
“6. Leaving aside procedural unfairness (which is addressed as a separate ground) the forensic theory, strategy and conduct of the Appellants’ case could only ever be formulated by reference to the case the [second respondent] advanced. That case was that [the second respondent] had never been in a relationship with the person Nischal which on the unchallenged and uncontroverted evidence was ‘glaringly improbable’.
7. The Appellants had on the evidence, every reason to be confident that there would be a finding that [the second respondent] had been in a relationship, and it was on foot at the time of the [worker’s] death. That was Ms Joshi’s evidence in respect of which [the second respondent] responded and through her conduct, admissions and text messages to Pooja Shrestha (Jenny) acknowledged and confirmed and that it was fatal to her claim of dependency.
8. [The second respondent’s] case was not that the relationship was over as found by the Member but never existed. The Commission was made privy to [the second respondent’s] assessment of her case through her text messages and Jenny’s evidence. Therefore, there was no need to speculate about whether [the second respondent] was under a misapprehension or not cognisant at the time of her conduct and admissions that the issue was whether she was in a relationship with Nischal at the time of the [worker's] death.
9. It was only through the Member’s repurposing of the evidence for a use never envisaged by the parties nor the witnesses themselves that the case of the relationship with Nischal was over and the relationship with the [worker] came about.”
The appellants maintain their assertion that the basis on which the Senior Member decided the case “was never contemplated by the parties or disclosed by the Member to the parties.”[68]
[68] Appellants’ submissions in reply 14 November 2024, [12].
There is also a dispute between the parties about whether the Senior Member used the Commission’s expertise as a specialist tribunal. The second respondent references this at paragraphs [19]– [20] of her submission. In reply, the appellants assert that such specialised knowledge is circumscribed or limited in its scope and, to the extent that it was relied upon in the decision, this fact ought to have been disclosed to the parties.[69]
[69] Appellants’ submissions in reply 14 November 2024, [18]–[25].
Consideration
Whether the appellants’ complaints in this ground can be made good requires an assessment of the complaints in the context of the way disputes are dealt with in the Commission. It also requires an assessment of the material and submissions relied on by the parties in terms of the nature of the dispute before the Senior Member.
The context involving Commission proceedings is as I have set out (above). That context involves the exchange of written material under r 67. The context is one where the rules of evidence do not apply. The context is that the parties frame the issues in the material exchanged (Winter) and procedural fairness is part of the process (Edmonds). All this occurs in the context of the legal construct within which the decision maker is operating (Aluminium Louvres).
In this case, the issue of the second respondent’s dependency upon the worker was plainly in issue. Whether she was dependent at all and if the answer was yes, what was its extent. This assessment was complicated by the evidence about the second respondent potentially being in a relationship with another man, Nischal, at the relevant time and whether the relationship with the worker had ended. The appellants also led evidence that rather than a relationship involving dependency between the worker and the second respondent, it was no more than a relationship of boyfriend-girlfriend.[70]
[70] See statement of Ms Joshi, AALD 1 December 2023, p 29, [18]; Ramila Shrestha AALD 9 February 2024 p 4, [9].
The appellants led evidence from Ms Joshi about the relationship with Nischal and that the relationship with the worker had ended.[71] Similar evidence was led by the appellants from Ms Pooja Shrestha (Jenny).[72]
[71] AALD 1 December 2023, p 28 onwards.
[72] AALD 9 February 2024, p 20.
The appellants’ submissions in chief before the Senior Member[73] were to the same effect. Namely, that there was no relevant relationship of dependency between the worker and the second respondent, rather it was a case of boyfriend-girlfriend. The appellants submitted that the relationship had ended, as the second respondent had taken up with another man.
[73] Appellants’ submission in chief to the Senior Member 5 December 2023.
The second respondent filed a written submission before the Senior Member dated 14 May 2024 pursuant to a Direction dated 30 April 2024. In this submission, the second respondent took issue with the factual evidence and arguments of the appellants on all grounds. The second respondent relied on the evidence of Sunita Shrestha (dated 6 February 2024), Maheshwor Shrestha (6 February 2024), Dil Maya Shrestha (6 February 2024) and Dennis Margono (5 February 2024). All of these statements were served by letter from the second respondent’s solicitors dated 6 February 2024. This was in addition to the second respondent’s statements.
The second respondent specifically drew the Senior Member’s attention to Ms Margono’s statement[74] in support of a submission that the worker and second respondent were still in a relationship at the time the worker died. This submission was specifically answered by the appellants in their reply submission dated 21 May 2024 at paragraph [35(d)]. Paragraph [35] contains the appellants’ submissions in response addressing the lay evidence relied upon by the second respondent, other than her own evidence which the appellants addressed at length elsewhere in the submission.
[74] Second respondent’s submissions to the Senior Member 14 May 2024, [35].
In the submissions before the Senior Member at paragraph [35(d)], and on this appeal at paragraph [33] of the submissions dated 6 August 2024, the appellants criticise Ms Margono’s statement for not disclosing an address, at Ms Margono’s request, and the fact that it is unsworn. I would remark that there is no requirement that witness statements in the Commission are sworn. As I have remarked above, the rules of evidence do not apply[75] and the Commission can decide the merits of the case “without regard to technicalities or legal forms.”[76] This submission invites an approach which is contrary to the statutory mandate of the 2020 Act to resolve the real issues in dispute justly, quickly and cost effectively with as little formality as possible.[77] I do not accept the criticisms advanced by the appellants regarding sworn as opposed to unsworn evidence.
[75] Section 43(2) of the 2020 Act.
[76] Section 43(3) of the 2020 Act.
[77] See s 3(c) and s 42(1) of the 2020 Act.
Ms Margono’s evidence, which the Senior Member refers to at reasons [519], had been the subject of specific submissions by both parties as I have described. The Senior Member had referred to Ms Margono’s evidence earlier in the decision at reasons [509]–[511] which provide the following:
“509. Like Ms Bista, Ms Margono has no interest in the outcome of the proceedings. She described herself as [the worker’s] friend and stated that [the worker] told her his relationship with [the second respondent] started in Nepal.
510. Ms Margono’s evidence supports the existence of a de facto relationship. She stated that two weeks before the accident, [the worker] told her he and [the second respondent] eventually planned to marry and move interstate.
511. The evidence of Ms Bista and Ms Margono also predates Jenny’s evidence.”
Turning to reasons [519] which is the impugned part of the decision, the appellants say that the cases presented by the parties were as follows. Firstly, the appellants had submitted that the relationship with the worker had ended in December 2021 when, on their case, the second respondent had commenced a relationship with Nischal. Secondly, it was the second respondent’s case that she was never in a relationship with Nischal. The appellants’ submission is to this effect – the Senior Member had to decide these two propositions only.
I do not accept that the Senior Member’s task was as limited as is submitted by the appellants. The dispute was about dependency and the relationship between the worker and the second respondent and whether it met the definition found in s 21C of the Interpretation Act 1987. It was also about whether the second respondent had embarked upon another relationship and the impact of this assertion upon the claim. The dispute was also about apportionment of the death benefit.
The Senior Member’s task was to consider all relevant evidence going to the facts in issue as presented by the parties. Indeed, a failure to do so would be an error.[78] The task confronting the Senior Member was as described in Nguyen v Cosmopolitan Homes[79] at [55] where the Court of Appeal described the approach in the following terms:
“(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[78] See Baira v RHG Mortgage Corporation Limited [2012] NSWCA 387, [175] per Bathurst CJ.
[79] [2008] NSWCA 246.
This is the process the Senior Member undertook. In terms of the asserted relationship between the second respondent and Nischal, the Senior Member said this:
“512. 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.
513. Ms Joshi’s evidence is that [the second respondent] told her in about December 2021 of a ‘big fight’ with [the worker], because he had found out about her affair with Nischal Sharma. She stated that [the second respondent] was never in a serious relationship or a de facto relationship with [the worker].
514. However, while Pradip has tried to explain why [the second respondent] was referred to as [the worker’s] ‘de facto’ and ‘spouse’ in his death certificate in July 2022, he obviously accepted that [the second respondent] was at least [the worker’s] girlfriend, and stated that [the worker’s] age when he was married was 20 years. That would date the relationship from about 2019, which was when [the second respondent] arrived in Australia, and is consistent with her evidence. It is inconsistent with [the second respondent] not being in a serious relationship with [the worker], and her not being in a relationship with him at the date of his death.
515. Jenny’s evidence is that she assisted [the second respondent] to prepare her statement in response to the evidence of her ‘clubbing’ and attempts to contact Nischal. While she has stated that she helped [the second respondent] to draft emails to her lawyers many times, there is no evidence of these other emails.
516. The fact that [the second respondent] sought Jenny’s assistance to respond to the evidence of the first and second [appellants] does not negate the possibility that she and [the worker] 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.
517. The [second 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. [The second respondent’s] request that he deny even knowing her reflects poorly on her.”
There is no error in the Senior Member’s reasoning. The Senior Member was called upon to decide whether there was a relationship between the second respondent and Nischal. This was a live issue between the parties. I do not accept, as submitted by the appellants, that the Senior Member decided a dispute different to the one prepared and presented by the parties.
I now turn to how the Senior Member found that the second respondent and the worker were in fact in a relationship at the time of his death. This finding was not limited to reasons [519] as appears to be the appellants’ argument. At reasons [520]–[521] the Senior Member recorded a follows:
“520. The text messages between [the worker] and [the second respondent] on the night of [the worker’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’.
521. [The second respondent] told [the worker] 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.”
These reasons reference a copy of a text messages exchanged by the worker and the second respondent on 21 June 2022.[80] This reasoning is not challenged on this appeal and is an available construction of that evidence.
[80] Second respondent’s statement 26 March 2024, [6], Annexure A.
But the Senior Member went further than just what appears in reasons [519] and considered the facts in light of the entirety of the relationship between the second respondent and the worker from 2017 in reaching her conclusion.[81] Needless to say, a decision must be read as a whole.[82]
[81] See reasons, [502]–[512], [522].
[82] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (Beale).
Finally, I deal with the appellants’ submission that how the Senior Member dealt with Jenny’s evidence involved appealable error.[83] The Senior Member recorded that Jenny did not meet the second respondent until well after the worker’s death and thus could have no first-hand knowledge about the relationship.[84] This is self-evidently a correct observation. On appeal, the appellants assert that the Senior Member erred in failing to draw inferences from what they describe as Jenny’s “indirect and circumstantial evidence” that the second respondent and Nischal were in a relationship at the time the worker died.[85] I would remark that this is not how the Senior Member was invited to treat Jenny’s evidence by the appellants. In the appellants’ reply submission at first instance,[86] Jenny’s evidence was deployed to assert the existence of a relationship between the second respondent and Nischal. However, this submission is general in terms of time whereas on appeal, it is directed to the period at the time the worker died. The submission to the Senior Member regarding Jenny’s evidence was chiefly deployed as an attack upon the credit of the second respondent. The inferences the Senior Member was invited to draw were to the effect that the second respondent was not a witness of truth and was involved in collusion about the production or absence of relevant evidence from the proceedings.
[83] Appellants’ amended submissions 6 August 2024, [17]–[20].
[84] Reasons [499], [516].
[85] Appellants’ amended submissions 6 August 2024, [19], [21].
[86] Appellants’ submission in reply to the Senior Member 21 May 2024.
The way this submission is now framed is somewhat different to the way the inference was put to the Senior Member. Namely, it is now said that the second respondent and Nischal were in a relationship at the time of the worker’s death. No criticism of the Senior Member can arise for not dealing with a submission which was not put.[87]
[87] Brambles Industries Limited v Bell [2010] NSWCA 162 (Bell), [30], per McColl JA.
This ground of appeal has not been established for the following reasons:
(a) The Senior Member’s reasoning about the existence of the relevant relationship between the second respondent and the worker is much wider than that appearing at reasons [519].
(b) Reading the decision as a whole, it is apparent that given the various claims and counter claims and inferences suggested, the Senior Member’s approach was to examine the evidence which was more persuasive or compelling. Evidence such as the contemporaneous text messages on 21 June 2022 which the second respondent and worker exchanged. The evidence of Ms Margono, who gave evidence about observations of the couple at a birthday event shortly prior to the death of the worker. The fact that Ms Margono was a witness with no interest in the outcome of the case[88] and who related a conversation with the worker about his plan to marry the second respondent[89] was obviously germane to the Senior Member’s ultimate decision.
(c) The essential complaint in this ground is without merit. I do not accept that the dispute about the relationship the second respondent had with Nischal and the true nature of the relationship the second respondent had with the worker at the time of his death were not live issues before the Senior Member. They were and as much is evident from a perusal of the evidence and the parties’ submissions at first instance. This appeal ground, on this issue, ignores the manner in which disputes are framed and presented in the Commission as I have set out at length above.
[88] Reasons, [509].
[89] Reasons, [510].
Likewise, similar problems exist with the Jones v Dunkel submission. This complaint can be found at the appellants’ amended submissions dated 6 August 2024 at paragraph [100] and refers to the absence of bank records, phone records or a complete schedule of phone exchanges, and “contemporaneous documents” (which are not defined) supporting the existence of a relationship between the worker and second respondent.
I have read the appellants’ submissions below. Nowhere was the Senior Member asked, in terms, to make a Jones v Dunkel inference. I accept that complaints about the non-production of material by the second respondent appears at paragraphs [3.4(f)] (bank records) and [3.4(n)] (tax returns, financial records, bank records)[161] and at paragraphs [25]–[26] (employment, visa and bank records) of the reply submission before the Senior Member.[162]
[161] Appellants’ submission in chief to the Senior Member 5 December 2023.
[162] Appellants’ submission in reply to the Senior Member 21 May 2024.
On appeal this category of material is widened to include phone records and a category of undefined “contemporaneous records”.
There are a number of issues with the appellants’ approach which are unsatisfactory. The asserted inference of the Jones v Dunkel type argued by the appellants is that an adverse inference ought be drawn by virtue of the absence of this documentary material. A Jones v Dunkel inference, if made, is to the effect that the evidence would not have assisted the party’s case. Before the Senior Member, the only records whose absence was referred to were of a visa/employment/financial category.
The phone records and “contemporaneous records” (whatever documents this undefined statement is directed to) were not brought to the Senior Member’s attention. It is not an error to not deal with an argument that was not put. I do not accept that the Senior Member was in error in not dealing with these types of documents.
On one view, no submission of a Jones v Dunkel type was put to the Senior Member in terms of that authority. This would be sufficient to dispense with this submission on appeal.
However, if I were to accept for argument’s sake that the references to the absent documents at the three paragraphs in the submissions before the Senior Member constituted a Jones v Dunkel submission, there are problems with the appellants’ approach. The documents are not defined with any particularity nor by reference to any time frame. That the absent documents are in the possession, custody or control of the second respondent is a matter of speculation. Indeed, the Senior Member is being invited to infer that they are in the second respondent’s possession as a matter of fact. None of this a proper basis to ground a Jones v Dunkel submission.
I accept that submissions of a Jones v Dunkel type are often put in a shorthand manner and that is the case in this matter. In my view, the absent material is so vaguely defined as to render the task of considering a Jones v Dunkel inference, let alone making one, fraught with error.
The Senior Member was not in error by not drawing a Jones v Dunkel inference adverse to the second respondent.
I next turn to the argument pursued by the appellants about the effect of s 235A of the 1998 Act.[163] As I have set out above, this provision deals with fraud on the workers compensation fund. This argument was not advanced before the Senior Member in terms of either s 235A of the 1998 Act or more broadly that the second respondent was in fact engaged in fraud. The allegation that the second respondent was engaged in fraud was never made by the appellants.
[163] Appellants’ submissions in reply 14 November 2024, [66]–[72].
Fraud, if alleged, must be clearly pleaded and particularised.[164] Fraud is probably one of the most serious allegations that can be made in a civil proceeding, hence the strict approach the courts have taken to requiring such an allegation to be properly particularised. While the Commission is not a jurisdiction of strict pleading nor of legal rules and technicalities,[165] the rules of procedural fairness do apply[166] and in the case of an allegation of fraud, it ought be made in clear and unambiguous terms so as to fairly confront the person with the assertion.[167] Raising this allegation in a reply submission on appeal for the first time fails to meet this standard.
[164] Sgro, [55]– [56] per Beazley P.
[165] See s 43 of the 2020 Act.
[166] Edmonds, [91].
[167] Sgro.
In terms of this submission and its allegation of fraud, the submission is without merit. The matter was not argued before the Senior Member in these terms nor was notice given that fraud was being alleged.
I do accept that the appellants mounted a significant attack upon the second respondent’s credit, truthfulness and behaviour. I will treat the argument within that context. This assertion is now deployed to undermine the Senior Member’s decision. The argument appears to be that, given the Senior Member’s finding that the second respondent lied, which finding was not made for the reasons I have stated (above), this therefore constituted fraud and as a result, the Senior Member was in error in accepting the second respondent’s evidence at all. And if the evidence was accepted, the Senior Member failed to explain why, in light of this finding, the evidence was not entirely rejected or given no weight.
I do not accept that the net effect of the Senior Member’s decision was a finding of fraud, as the reply submission argues. Fraud was never placed in issue. The Senior Member was not at liberty to make a finding of fraud. The basis of the submission involving s 235A of the 1998 Act and the conclusions it invites me to make are simply not established.
The way this aspect of Ground Four relating to s 235A of the 1998 Act and the assertion about a finding of fraud has been pursued on this appeal engages with the passages from Quirk that I have set out in relation to Ground Three. In my view, having regard to how the matter was contested before the Senior Member, the entire submission on appeal relating to fraud should not have been advanced. It is a serious allegation which must be made soberly, with notice and proper particulars, underpinned by a proper evidentiary foundation. None of these factors exist in this matter. Floating this argument on appeal for the first time does not meet these requirements.
This sub-argument in Ground Four is dismissed.
I will now deal with the crux of this appeal ground, which is the assertion that the Senior Member failed to give reasons in respect to the second respondent’s credit as a witness.
As I have said in a number of places above, the appellants seriously challenged the second respondent’s evidence, in terms of credit, weight and reliability. Aspects of the second respondent’s behaviour were also called into question.
Needless to say, the proper approach involves considering the Senior Member’s reasons as a whole.[168]
[168] Beale.
The approach of the Senior Member was to examine the entirety of the evidence. The issue to be decided was whether, at the date of the worker’s death, the second respondent was in a relationship of dependency vis-a-vis the worker. Section 21C of the Interpretation Act was considered but was not determinative.[169]
[169] See reasons, [522].
I would make the following observations from the evidence and the Senior Member’s decision. There was no contest that the couple knew each other in Nepal before the worker moved to Australia. The worker moved to Australia in 2017. There was no contest that they were “living together” from 2019, when the second respondent moved to Australia and began either living with or sharing a flat with the worker. There was no contest that for much of the time after the second respondent’s arrival in Australia, the couple was considered by others to be at least in a boyfriend-girlfriend relationship. Indeed, this was the view the appellants held from Nepal. There is also no dispute that they became joint tenants in a rental property from November 2021 and that there was a joint bank account that was used to pay rent and utilities. It is not disputed that from time to time, a number of people witnessed the worker and the second respondent behaving as a couple.
Beyond, these uncontested matters, the factual dispute was whether the relationship had either progressed to a closer relationship of dependency or had in fact been terminated by virtue of the second respondent taking up with Nischal. It is within this ambit that the Senior Member had to assess the various issues of fact and credit presented by the parties.
Clearly, the Senior Member had reservations about aspects of the second respondent’s evidence and behaviour, hence the remarks at reasons [498], which are akin to a jury direction. Approaching a witness’s evidence with caution means that a decision maker will look for support or corroboration elsewhere in the evidence rather than unreservedly accepting the witness’s evidence at face value. It is not a positive finding adverse to credit as the appellants assert. The remark at reasons [517] that certain conduct reflected poorly on the second respondent again is not a positive adverse credit finding, rather it is an indicator that the Senior Member was troubled by that behaviour and when one looks at reasons [523], the net result was that not all of the second respondent’s evidence was accepted.
Given the riders the Senior Member placed on the second respondent’s evidence, the evidence which appears to have aided the ultimate result came from Ms Bista, Ms Margono and the text message exchange on 21 June 2022. This has been described above.
In terms of the appellants’ evidence, they have placed much weight on Jenny and Ms Joshi. The Senior Member treated these witnesses in the following manner. Firstly, with respect to Jenny, the Senior Member found, uncontroversially, that Jenny and the second respondent did not meet until well after the worker’s death.[170] Patently and uncontroversially, this evidence was not considered to be first hand by the Senior Member. Indeed, on this appeal, as discussed above, the appellants class Jenny’s evidence as being “indirect circumstantial”,[171] from which only inferences can be drawn, which for the reasons I have described above was not appropriate.
[170] Reasons, [499].
[171] Appellants’ amended submissions 6 August 2024, [81].
The appellants complain that there was a conflict in the evidence between Jenny and the second respondent that the Senior Member failed to resolve or give reasons as to why one was preferred over the other. In my view, the Senior Member did not have to resolve any conflict. Jenny’s evidence had the limitations ascribed to it by the Senior Member and as such was plainly accorded little weight. This was not a credit contest between the two witnesses. Further, I do not read the Senior Member’s decision as preferring the second respondent’s evidence to that of Jenny. Rather, the Senior Member clearly was not much assisted by Jenny’s evidence, coming after the fact as it did. Additionally, the Senior Member plainly preferred the evidence of Ms Margono and Ms Bista as it predated the evidence of Jenny.[172] As can be seen, the evidentiary dispute, such as it was, was not just between Jenny and the second respondent.
[172] Reasons, [510]–[511].
There is no error in how the Senior Member dealt with the evidentiary contest, such as it was, between the second respondent and Jenny. The reasons at [499] are brief, consistent with s 294(2) of the 1998 Act, and uncontested. Had the Senior Member gone into greater detail, this would not have affected the result. The Senior Member’s reasons on this point are brief, to the point and are readily understood. In as much as this ground rests upon a complaint about Jenny’s evidence not being preferred and a lack of reasons as to why this was the case, this aspect of the ground fails.
I now turn to the contest between Ms Joshi’s evidence and that of the second respondent. Ms Joshi makes what are limited observations about what she saw in terms of the relationship between the worker and the second respondent. I say limited because Ms Joshi herself says she only saw them on “special occasions” and this plainly affected the weight the Senior Member gave to the evidence.[173] In terms of a contest between these two witnesses’ evidence, Ms Joshi says that the second respondent did not contribute with housework. The Senior Member remarked that the evidence was that the worker was working two jobs and studying, so time would obviously be short for performing all domestic tasks. This was an acceptable inference to draw from established or uncontested facts.[174] And the Senior Member also relied upon the text messages of 21 June 2022. In this contest of evidence, the reasons why the Senior Member accepted the second respondent’s evidence that she would buy groceries, clean and cook dinner, is apparent from a plain reading of reasons [522(h)]. I hasten to add that this finding was not tainted, as asserted by the appellants, by a finding that the second respondent was a liar. As can be seen in this passage of the reasons, the second respondent was accepted on this point because:
(a) Ms Joshi only saw the couple on special occasions;
(b) the text messages supported the second respondent’s evidence, and
(c) the inferences drawn from the fact that the worker was both studying and working two jobs and would not have had time to perform all the domestic tasks.
[173] Reasons, [522(h)].
[174] Bradshaw; Fuller-Lyons.
When the decision is read as whole, the reasoning as to why Ms Joshi’s evidence was not determinative is apparent. But there was no conflict on the matters dealt with at [522(h)] which required credit findings one way or the other.
In terms of Ms Joshi’s other evidence, namely that she had no knowledge nor had the worker told her of any plans that the worker and the second respondent were to marry, this was in contrast to Ms Margono’s evidence that two weeks before the worker died, he had told her of his marriage plans. Ms Joshi’s evidence on this point was not placed at any particular time. Ms Margono’s evidence was placed quite close to the death of the worker, and it is apparent that on this issue, the Senior Member was persuaded or gave weight to Ms Margono’s evidence.[175] On this issue, the Senior Member did not rely on the second respondent’s evidence in preference to that of Ms Joshi. The complaint raised by the appellants at paragraph [107] of the amended submissions, with respect, misconstrues or misunderstands how the Senior Member resolved this issue.
[175] Reasons, [510].
This leaves the evidence about the alleged dispute in December 2021 when it is said that there was a “fight” between the worker and the second respondent about her “affair” or relationship with Nischal. It is apparent that the Senior Member did not feel compelled to resolve this conflict in the evidence, although at reasons [517] it apparent that the Senior Member accepted that Nischal and the second respondent were more than just friends. I would note that the Senior Member made no positive finding that there was an “affair” between the second respondent and Nischal.
However, at reasons [519] the Senior Member stated:
“Whatever may have occurred between [the worker] and [the second respondent] 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.”
Reasons [519] is dealing with the situation as it existed and as found in the evidence at a time proximate to the worker’s death and for that reason, the Senior Member did not feel compelled to make any finding as to what actually occurred in December 2021.
The reasons as to how the Senior Member dealt with this evidence and the decision she came to is apparent from a reading of her reasons. The alleged failure to make findings about the second respondent’s credit misunderstands how the Senior Member approached the areas of contention in the evidence. Some of the areas of evidentiary conflict were not between the second respondent and the appellants’ witnesses, rather it involved a consideration of the evidence of other witnesses such as Ms Bista and Ms Margono. How this conflict was resolved is apparent from the Senior Member’s reasons I have set out in this decision.
The appellants have failed to make out the assertion that the Senior Member failed to give reasons about the second respondent’s credit and why it had been preferred. A reading of the decision as a whole reveal that the second respondent’s evidence was not accepted or preferred in full.
Error has not been established.
Ground Four is dismissed.
As to Ground Five
Ground Five challenges the Senior Member’s decision regarding apportionment of the death benefit amongst the dependents.
The appellants state that the Senior Member has failed to address the issue of “special needs” arising due to the depressive conditions both appellants now suffer as a result of the untimely death of their son. The appellants also say that the Senior Member’s consideration of the possible financial contribution to the appellants by their remaining son was made without evidence and was an irrelevant consideration in the exercise of the apportionment discretion.[176]
[176] Appellants’ amended submissions 6 August 2024, [111]–[132].
In the Notice of Opposition, the second respondent submits:
“96. The second respondent respectfully submits that the appellants are utilising this ground of error as a complaint as to the exercise of discretion of the Member as they disagree with the outcome and assert there ought to be another outcome rather than identifying a true error in the Member's decision making.
97. The appellants assert that there was medical evidence to establish the special needs of the appellants that ought to have [been] taken into consideration by the Member in the exercise of discretion as to the apportionment of the lump sum payment. The second respondent asserts that the appellants fail to point to any relevant authority to support that the appellants ought to have been awarded a greater apportionment of the death benefits lump sum amount on the basis that they have suffered a psychological injury resulting from the death of the [worker]. The second respondent respectfully points out that this is not a [compensation] to relatives claim and nor is it a personal injury claim for compensation arising out of nervous shock. The second respondent submits that the Member correctly exercised her discretion as to the apportionment of the lump sum death benefit payable under section 29 of the 1987 Act. There is no requirement in that section for there to be a consideration of a psychological injury arising out of the death of any of the dependents.
98. It is clear from the reasons that the Member considered the medical evidence relied upon by the appellants. The second respondent respectfully submits that this ground also seems to be a criticism by the appellants of the consideration of the evidence and the weight placed upon same. The second respondent reiterates submissions above in relation to the authorities applicable to the evaluation of evidence as a whole before the Commission. The second respondent repeats its submission that it is clear that the Member had due consideration of all of the available evidence as contained in her considerable Reasons including the medical evidence relied upon by the appellants, given her references to that evidence.
…
100. The second respondent disputes the appellants submission at [129]–[132] that the Member took into account an irrelevant consideration. The second respondent submits that it was open to the Member on the evidence before the Commission to make the finding that there is a likelihood that the [worker’s] younger brother may in due course assist his parents financially. The second respondent repeats its submissions above that the Member is part of a specialist tribunal that can draw inferences from the whole of the evidence that is before the Commission.
…
104. The second respondent disputes the appellants’ submission at [132] that there was no basis in the evidence for the finding made by the Member and it amounted to speculation.”
In reply, the appellants assert the following:
“82. The [second respondent’s] submission on this ground comes down to a submission … that the ‘Member is part of a specialist tribunal that can draw inferences from the whole of the evidence that is before the Commission’.
83. The substance of the [second respondent’s] submission supports the Appellants’ submission that the Member has had regard to matters which exceed the specialist jurisdiction expertise in respect of wages.
84. The Appellants’ repeat the submissions in respect of ‘extremely limited’ specialist jurisdiction which the [second] respondent’s submissions appear to concede was used.”
The Senior Member’s decision
The dispositive part of the apportionment decision is as follows:
“496. The first and second [appellants’] evidence is that they continue to operate their tailoring business, although they state it is doing poorly. Dr Sherchan has not suggested that either [appellant] is unable to work.
497. I accept that the first and second [appellants] were partly dependent for support on [the worker].
…
524. I accept that [the appellants and the second respondent were] partly dependent for support on [the worker].
525. [The worker’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 [the worker] may have had commitments to a family of his own.
526. [The second respondent] may have expected continued support from [the worker] 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 [appellants].
527. I have assumed that payments by [the worker] to the first and second [appellants] 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.
528. I accept that the [third] respondent, who has had the benefit of the advice of senior counsel, and is now 18 years old, was not dependent for support on [the worker], and he has made no claim on the death benefit.
529. Having considered the evidence, I have determined that the lump sum should be apportioned as follows:
·first [appellant]: 15% = $129,352.50
·second [appellant]: 15% = $129,352.50
·[second] respondent: 70% = $603,645
Total: $862,350”.
Principles applying to apportionment of a death benefit
Section 29 of the 1987 Act states that the Commission may apportion amongst each dependent the compensation payable on death. In this matter there was a contest between the dependents and an application that the Commission apportion the benefits. The Commission was thus possessed of the power to apportion.
In Wratten Judge Egan said the following about the approach to apportionment amongst dependents:
“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 anticipated future dependence, the ages of the dependants, their health, special needs, lifestyle etc.
… The fact finding exercise must be carried out with due notice to those who may be entitled to share and they must each be afforded an opportunity to present submissions in relation to the apportionment.”[177]
[177] Wratten, 34–35.
In short, it is the exercise of a judicial discretion performed consistently with the principles arising from House v The King.[178]
[178] (1936) 55 CLR 499, 505.
Consideration
The appellants assert that the Senior Member’s discretion miscarried in two respects. Firstly, that insufficient weight was given to the medical evidence, stating that the Senior Member’s treatment of this evidence was “cursory”. Secondly, the appellants state that the Senior Member’s decision, by having regard to possible future assistance from the worker’s brother, was infected by an irrelevant consideration.
I do not accept the appellants’ submission that the Senior Member’s considerations about possible future financial contributions from their remaining son were irrelevant. Firstly, this issue was put fairly and squarely by the second respondent in her submissions before the Senior Member.[179] I have carefully read the appellants’ reply submissions before the Senior Member and would note that no issue was taken with the submission regarding the surviving brother’s potential future contribution to the appellants. The discretion being exercised by the Senior Member required her to examine “all relevant facts including … anticipated future dependence”.[180] Possible future financial contributions from a sibling are a relevant factor to be weighed in the balance. Reading reasons [525], the Senior Member remarks that the possible future contribution from the worker’s sibling “may have assisted them”, meaning the appellants. It is not a positive finding that such a contribution would occur, rather the Senior Member was considering various possibilities in the exercise of her discretion. I do not read the potential contribution of the sibling to the appellants’ financial situation as being determinative on this issue.
[179] Second respondent’s submissions to the Senior Member 14 May 2024, [75].
[180] Wratten.
I dismiss this aspect of Ground Five.
This leaves the complaint about how the Senior Member dealt the medical evidence. Before the Senior Member were the appellants’ statements which detailed how the worker’s death affected them. Also before the Senior Member were the two reports of Dr Sherchan detailing the doctor’s observations and opinions. In their submissions to the Senior Member the appellants detailed their financial plight, how they had incurred debt to enable the worker to study in Australia and that this liability remained without the support of the worker.[181] The following was then put by the appellants: “The [appellants’] situation is compounded by their health and resulting depression which is documented in the medical evidence. The resulting incapacity has further exasperated the straitened [sic] financial situation and on the family business and finances.”[182] The appellants did not submit to the Senior Member that they could not work. The medical evidence did not say that the appellants could not work.
[181] Appellants’ submission in chief to the Senior Member 5 December 2023, [4.29]–[4.32].
[182] Appellants’ submission in chief to the Senior Member 5 December 2023, [4.33].
This is in contrast to the manner in which the issue of the appellants’ medical conditions are now advanced on appeal. Far greater emphasis on the medical condition is asserted on the appeal than was put to the Senior Member.
It is stated that the Senior Member has wrongly required the medical problems suffered by the appellants to sound in financial loss. I do not consider that this is a fair reading of the Senior Member’s decision. The Senior Member correctly noted the appellants’ business was still operating but that it was “doing poorly” and accurately noted that the medical evidence did not say that they could not work.[183] I do not see this passage as elevating any requirement that the medical evidence actually specify an incapacity for work. I reject the submission to this effect.
[183] Reasons, [496].
Before the Senior Member, the health issues besetting both appellants were framed in the manner I have quoted above, namely that they “compounded” an already difficult financial situation, not that the condition was a significant causal factor in this situation. On appeal the argument now is that the medical conditions are of such a magnitude as to affect the appellants’ capacity to earn,[184] creating “special needs” (for Wratten purposes) and that the Senior Member was in error to not so find.
[184] Appellants’ amended submissions 6 August 2024, [120].
Nowhere did the appellants assert, as is now asserted, that the medical issues constituted “special needs”. It is not an error for the Senior Member to have not grappled with an argument that was not put.[185] On appeal, the way in which this aspect of the appellants’ case is advanced is very different to that which was submitted to the Senior Member. I therefore reject the submission that the Senior Member, by failing to assess the medical evidence in the manner now argued, caused her discretion to miscarry.
[185] Bell, [30].
Ground Five has not been established. Ground Five is dismissed.
DECISION
The Senior Member has, in a well-reasoned decision, dealt with the arguments as presented by the parties. No error in either fact finding or the application of relevant principles has been established.
I extend time for the appellants to file a reply to the Notice of Opposition to the appeal to 15 November 2024.
The Certificate of Determination dated 1 July 2024 is confirmed.
Judge Phillips
PRESIDENT
24 April 2025
15
0