State of New South Wales (Ambulance Service of NSW) v Jamieson

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	State of New South Wales (Ambulance Service of NSW) v Jamieson & Ors [2025] NSWPIC 223
APPLICANT:	State of New South Wales (Ambulance Service of NSW)
FIRST RESPONDENT:	Stephen Hugh Jamieson
SECOND RESPONDENT:	Sophie Jane Butterfly Knott
THIRD RESPONDENT:	Chase Stephen Williamson Knott
MEMBER:	Rachel Homan
DATE OF DECISION:	22 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Application in respect of death worker; whether first respondent was a ‘dependant’; definition of ‘de facto partner’ in section 21C of the Interpretation Act 1987; Held – first respondent was not a ‘dependant’; second and third respondents were dependants; orders for apportionment of lump sum death benefit, payment, and costs.
DETERMINATIONS MADE:	The Commission determines: 1. Melanie Jane Knott (the deceased worker) died between 14 January 2023 and 17 January 2023 as a result of injury sustained in the course of her employment with the applicant. 2. The second respondent and third respondent were dependants of the deceased worker who were partly dependent for support upon the deceased worker at the date of her death. 3. The first respondent was not a “dependant” of the deceased worker at the date of death. 4. There were no other persons wholly or partly dependent for support upon the deceased worker at the date of death. 5. The lump sum death benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 is $871,200. 6. The lump sum death benefit is apportioned pursuant to s 29(1) of the Workers Compensation Act 1987 as follows: (a) $435,600 (50%) to the second respondent, and (b) $435,600 (50%) to the third respondent. The Commission orders: 1. The applicant to pay $435,600 to the second respondent pursuant to s 85A(1)(a) of the Workers Compensation Act 1987. 2. The applicant to pay $435,600 to the NSW Trustee and Guardian to be held in trust for the benefit of the third respondent until he attains the age of 18 years pursuant to s 85(1)(a) of the Workers Compensation Act 1987. 3. Within 14 days of receiving notice of this determination, the applicant, second respondent and third respondent to lodge signed consent orders (or in the absence of agreement, written submissions) with regard to: (a) interest pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, and (b) additional compensation fees payable to the NSW Trustee and Guardian in respect of the third respondent’s portion of the lump sum death benefit (inclusive of interest) pursuant to s 25(1A) of the Workers Compensation Act 1987. 4. The applicant to pay the second and third respondent’s costs as agreed or assessed. 5. The first respondent to bear his own costs. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Melanie Jane Knott (the deceased worker) died between 14 January 2023 and 17 January 2023 as a result of injury sustained in the course of her employment with the State of New South Wales (Ambulance Service of NSW) (the applicant). The deceased worker was 49 years old at the time of her death.
Liability to pay compensation in respect of the death has been accepted by the applicant’s insurer.
The applicant lodged an Application in Respect of Death of Worker (the Application) in the Personal Injury Commission (the Commission) on 16 January 2025 seeking orders for apportionment and payment of the lump sum death benefit payable under s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act).
The Application identified the deceased worker’s children, Sophie Jane Butterfly Knott (second respondent) and Chase Stephen Williamson Knott (third respondent), as well as their father Stephen Hugh Jamieson (the first respondent) as potential dependants.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) identification of any family members who were wholly or partly dependent for support on the deceased worker in accordance with s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act);
(b)    apportionment of the lump sum death benefit of $871,200;
(c)    orders for payment of compensation;
(d)    orders with respect to interest, and
(e)    orders with respect to costs.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for preliminary conferences on 4 March 2025 and 25 March 2025. At the first preliminary conference, the Commission directed the first respondent to serve and lodge further evidence as to the nature of his family relationship to the deceased worker and the nature of his dependence upon her for support.
At the preliminary conference on 25 March 2025, I indicated to the parties that I remained unsatisfied that the first respondent satisfied the definitions of “dependants” and “member of a family” as set out in s 4 of the 1998 Act for the purposes of s 25(1) of the 1987 Act. I referred the parties to the decision in FIS Systems Pty Ltd v Fieldmartin & Ors [2023] NSWPIC 114. The first respondent was directed to provide written submissions and any further evidence addressing those requirements. The other parties were directed to lodge any written submissions in response according to a timetable.
The parties were advised of the Commission’s intention to determine the application of the conclusion of that timetable.
The first respondent lodged written submissions on 9 April 2025. No submissions were received from any of the other parties.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application and attached documents;
(b)    Reply lodged by the first respondent and attached documents;
(c)    Reply lodged by the second respondent and attached documents;
(d)    Reply lodged by the third respondent and attached documents;
(e)    additional documents lodged by the first respondent on 19 March 2025;
(f)    additional document lodged by the first respondent on 25 March 2025, and
(g)    written submissions lodged by the first respondent on 9 April 2025.

FINDINGS AND REASONS

Dependants

Section 25(1) of the 1987 Act provides that if death results from an injury, the amount of compensation payable by the employer shall include a lump sum death benefit, which is to be apportioned among “any dependants who are wholly or partly dependent for support on the worker”.
The term, ‘dependants’ is defined in s 4 of the 1998 Act as:
“dependants of a worker means such of the members of the worker’s family as were wholly or in part dependent for support on the worker at the time of the worker’s death, or would but for the incapacity due to the injury have been so dependent, and includes—
(a)    a person so dependent to whom the worker stands in the place of a parent or a person so dependent who stands in the place of a parent to the worker, and
(b)    a divorced spouse of the worker so dependent, and
(c)    a person so dependent who—
(i)in relation to an injury received before the commencement of Schedule 7 to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998—although not legally married to the worker, lived with the worker as the worker’s husband or wife on a permanent and genuine domestic basis, or
(ii)in relation to an injury received after that commencement—is the de facto partner of the worker.
Note—
’De facto partner’ is defined in section 21C of the Interpretation Act 1987.”
The expression, “member of a family” is defined in s 4 of the 1998 Act to mean:
“member of a family means spouse (including wife or husband), father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother or half-sister.”
The term “spouse” is defined in s 4 of the 1998 Act to mean:
“spouse of a person means—
(a) in relation to an injury received before the commencement of Schedule 7 to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998—a person to whom the person is legally married (including a husband or wife), or
(b) in relation to an injury received after that commencement—
(i)a person to whom the person is legally married (including a husband or wife), or
(ii) a de facto partner of the person.”
Section 21C of the Interpretation Act 1987 relevantly states:
“(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.”

First respondent

The first respondent prepared a written statement on 8 November 2023 in which he stated that he first met the deceased worker in 2000. They became good friends and socialised together.
In approximately 2001, the deceased worker commenced a same-sex relationship with another woman.
In early 2003, the deceased worker and her partner approached the first respondent indicating that they wished to have a child and asking him to donate his sperm. Although the first respondent initially declined, he subsequently changed his mind and made the donation.
The deceased worker’s first child was born in 2004 but passed away while still an infant. The first respondent made two further donations, as a result of which the second and third respondents were born in 2007 and 2009 respectively.
The deceased worker maintained her relationship with her partner for approximately eight or nine years until the relationship broke down. Following the cessation of that relationship, the deceased worker continued to receive child support from her former partner.
The first respondent said he moved in to live with the deceased worker and the second and third respondents in Tumbi Umbi about a week after the relationship broke down.
The first respondent and the deceased worker later entered into a lease for premises at Bateau Bay. The lease, power and water bills were in their joint names.
The first respondent said he shared parenting responsibilities for the second and third respondents as well as living expenses with the deceased worker.
The first respondent said he lived in Sydney some nights of the week as he worked in a café there. The first respondent’s income from the café was approximately $830 per week.
The first respondent said that he and the deceased worker were reliant on the deceased worker’s income from workers compensation and child support payments to make ends meet.
The first respondent said the deceased worker was found deceased in the shower at the Bateau Bay home on 17 January 2023 by her father Denis Knott. The first respondent had called Mr Knott after checking an internal camera at the house on 16 and 17 January 2023 and noticing that the deceased worker had not been in the kitchen. The first respondent became concerned that he and others had not heard from the deceased worker since the previous Saturday, 14 January 2023.
The first respondent provided a supplementary statement on 18 March 2025 in which he gave evidence that at the time of the deceased worker’s death they were cohabiting at the Bateau Bay address and were reliant on each other financially to support their children, household and living expenses. The statement otherwise repeated the evidence set out in the first respondent’s first written statement.
In written statements prepared by the deceased worker’s brothers and parents, the first respondent was described as the deceased worker’s “co-parent”. Evidence was given that the first respondent had moved in with the family and co-supported the children since the cessation of the deceased worker’s relationship.
A written statement prepared by the second respondent dated 6 February 2025 indicated that the first respondent had moved in with her mother full-time to help out after the deceased worker suffered a back injury. According to her statement, they each paid half the rent and bills.
A psychological assessment report dated 5 April 2019 in respect of the second respondent identified that she lived at home with the deceased worker, her brother and the first respondent “part-time”.
A psychological assessment report dated 20 November 2019 prepared in respect of the third respondent identified that he lived at home with the deceased worker and his sister. The first respondent was said to live in the home half of each week.
Also amongst the materials filed in the Commission are a Residential Tenancy Agreement signed on 26 October 2020 which named the deceased worker and first respondent as joint tenants of the property at Bateau Bay. Gas invoices dated in June 2021 and December 2022 addressed to the deceased worker and first respondent at that address are also in evidence.
A report from the deceased worker’s psychiatrist at Berkeley Vale Private Hospital, Dr Suresh Goriparti, dated 14 December 2022, described the deceased worker as a “single” mother living with her two children. It was noted that the deceased worker was “separated from her long term partner, Steve but they are still good friends”.
Letters dated 18 July 2022 and 16 August 2023 from IM Accounting to the first respondent attaching copies of his income tax returns were addressed to the first respondent at an address in Wamberal. The tax returns gave the same Wamberal address as the first respondent’s home address and postal address. The tax returns indicated that the first respondent had no dependent children and did not identify a spouse.
A statement of police in respect of the deceased worker’s death, dated 2 May 2023, identified the first respondent as the deceased worker’s “de facto partner” and next of kin.
The same report indicated that the deceased worker’s father would often attend the Bateau Bay address at which the deceased worker lived to care for her children or take them on outings. On the morning of 14 January 2023, it had been arranged for Mr Knott to pick up the third respondent and take him back to his residence for a few days. The second respondent had recently moved out to live with her boyfriend.
The report stated that the first respondent and the deceased worker had known each other for 20 years and the first respondent described the deceased worker as his “best friend”. They had lived together and raised their children together. Although they had had other relationships during this period they remained “de facto” through their living arrangements and commitment to raising the children together. The first respondent stayed with friends in Sydney from Friday to Monday each week but would return home to care for the children on the remaining weekdays.
The deceased worker’s death certificate did not identify a spouse.
Invoices for the deceased worker’s funeral expenses were addressed to family members other than the first respondent.

Written submissions

Written submissions were prepared on behalf of the first respondent by Mr Misha Hammond of counsel on 9 April 2025.
It was submitted on behalf of the first respondent that although he was not in a traditional relationship with the deceased worker, he was her “de facto partner” according to s 4 of the 1998 Act and s 21C of the Interpretation Act 1987.
The first respondent referred to the consideration of s 21C by Hallen J in Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 as set out in Lee-Anne Oxley as trustee for Storm Oxley, James Oxley, Kiara Oxley and Mia Oxley v EDCO Contracting Group Pty Ltd and Ors [2015] NSWWCCPD 6:
“…The criteria enumerated by s 21C(3) were considered by Hallen J in Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 (Sadiq), a case where his Honour was concerned with the concept of de facto relationship, albeit in the context of the Succession Act 2006. His Honour made the following observations with respect to the various criteria found in s 21C(3):
‘196. It can be seen that the nine criteria referred to may be grouped into “private” ((c), (d), (e) and (f)) and “public” ((a), (b), (g), (h) and (i)) headings.
None of the matters listed is of decisive significance. The criteria are inclusive but not exhaustive. They all, however, suggest a continuing course of conduct and behaviour, not an event at a fixed point of time. No matter how close the involvement in each other’s emotional lives, a conclusion that people are a couple living together involves consideration of the circumstances in which they are living, including the places at which they are living. The test is not primarily locational, but it has a locational element: Dion v Rieser [2010] NSWSC 50, per Bryson AJ at [14].’”
The first respondent’s submissions drew attention to his status as the biological father of the deceased worker’s children. The first respondent and the deceased worker resided together from 2012 until the time of her passing. The living arrangement provided the children with a nurturing and stable family environment and consistent parental figure. It also provided the deceased worker with assistance with childcare and household responsibilities. The first respondent submitted that he lived together with the deceased worker and the children as a family unit.
The first respondent said he was highly dependent on the deceased worker’s income to cover their shared household expenses. The first respondent said he and the deceased worker had demonstrated a shared commitment to a life together by taking on joint responsibilities including the care of their children, management of the household and sharing of living expenses. They were dedicated to a partnership built on mutual support and shared duties. The first respondent said they had established a balanced and equitable division of household responsibilities reflecting their mutual commitment family and children. Their cohabitation and joint parenting arrangement was known within the community and social circles. The first respondent submitted that he lived with the deceased worker on a permanent domestic basis for the purposes of s 21C(2).
The first respondent submitted that his relationship with the deceased worker satisfied the requirements of s 21C. Applying relevant case law including, Dow v Hoskins, the Commission ought to focus on their shared life, taking into account the human reality of their personal, emotional and cultural complexities.

Consideration

I have given careful consideration to the evidence and submissions filed by the first respondent. The nature of his relationship with the deceased worker is difficult to define. Many aspects of that relationship are, considered individually, consistent with a de facto relationship as defined in s 21C of the Interpretation Act 1987. I also accept that the definition is s 21C is purposefully fluid and flexible enough to encompass a range of circumstances and arrangements. The overarching requirement of the definition, however, is that the two persons have a relationship “as a couple”.
I am satisfied on the evidence before me that the first respondent and the deceased worker had a relationship as friends. The first respondent is recorded to have described the deceased worker as his “best friend” in the police report prepared in connection with her death and I accept this to have been the case. I accept that the deceased worker and first respondent derived companionship and emotional support from their relationship and cared for each other deeply. I also accept that the first respondent and deceased worker were friends for a period of more than 20 years.
It is evident, however, that over the course of their friendship, the applicant and first respondent have had relationships with other persons. The deceased worker was in a long-term de facto relationship with another person at the time the second and third respondents were conceived. That person was named as a parent on the third respondent’s birth certificate. The evidence suggests that the deceased worker continued to receive child support from that person after the cessation of their relationship.
The police report also suggests that the first respondent may have had relationships with other persons in that time although no evidence has been given by the first respondent in this regard.
I accept that the deceased worker and first respondent have resided, at least on a part-time basis, together. The first respondent has provided a residential tenancy agreement in their joint names and gas bills in their joint names. Psychological reports prepared in 2019 in respect of the second and third respondents also indicated that the first respondent lived in the household “part-time”. This evidence is consistent with the first respondent’s own evidence that he lived part of the week in Sydney where he worked in a café. I note that the second respondent has given evidence that the first respondent lived with the deceased worker on a full-time basis after she suffered a back injury. I am prepared to accept that while living together the first respondent and deceased worker shared the performance of household duties.
There is, however, some more recent evidence that does not support a finding that the deceased worker and first respondent continued to reside together at the time of the deceased worker’s death. The first respondent’s 2022 tax return gave a home address in Wamberal and was posted to him at that address. A psychiatrist’s report prepared by Dr Goriparti around a month before the deceased worker’s death described her as a “single” mother living with her two children. The report said that the deceased worker was “separated” from her long term partner Steve but they were still good friends. The first respondent’s evidence is silent in relation to this matter.
There is no evidence that the relationship between the deceased worker and the first respondent was at any time a sexual or romantic relationship. The first respondent gave evidence that he parented the second and third respondents through sperm donation.
There is a body of evidence to suggest that there was a degree of financial interdependence between the first respondent and deceased worker. The first respondent has given evidence that the lease, power and water bills were in their joint names and that they shared living expenses. The first respondent has said that he was reliant upon the deceased worker’s income to make ends meet. The second respondent’s statement evidence is consistent with the first respondent’s evidence in this regard.
The statement evidence has not, however, been supported by any documentary evidence other than two gas bills and the residential tenancy agreement. There are no other bills or bank records before the Commission to confirm any pooling or intermingling of finances. There is, for example, no evidence that the deceased worker or first respondent named each other as beneficiaries to any superannuation or insurance policies. The first respondent did not declare any dependent children or spouse in his tax returns.
As indicated above, while I am satisfied that the first respondent and deceased worker shared rented premises at Tumbi Umbi and Bateau Bay, there is no evidence to suggest that they purchased or acquired any other property together as a couple. There is, for example, no evidence with regard to any joint purchases of furniture, vehicles or other household items.
I am satisfied that there was a mutual commitment to a shared life together insofar as the first respondent and deceased worker were bound by their friendship and children. Although the first respondent is not named as the father of either the second or third respondent on their birth certificates, DNA testing results before the Commission confirm that he is their biological father.
The evidence also confirms that the first respondent has been involved in the children’s care and support. The deceased worker’s other family members described the first respondent as the deceased worker’s “co-parent” and confirmed that he had lived with the family and supported the children since 2012. The statement evidence also confirmed that the first respondent had taken on the responsibility of raising the children as a single parent following the deceased worker’s death. The 2019 psychological reports prepared in respect of the second and third respondents confirmed the first respondent’s involvement in their lives as a parent.
Although at times in the evidence the first respondent has been identified as the deceased worker’s “de facto” or “partner” in view of their living arrangements and commitment to raising the children together, I am not satisfied that they viewed themselves or were viewed by those who knew them well as a “couple”.
While the evidence tends to suggest that their cohabitation and joint parenting arrangements were known within the community and the deceased worker’s and first respondent social circles, none of the evidence described them as a “couple”. The statement evidence from the second and third respondents’ tutor, Kim Maddaford, was that she did not see the deceased worker assist the second and third respondents with any task because she was friends with the first respondent and did not socialise with him and the deceased worker together. Ms Maddaford said she had only met the deceased worker once very briefly. The evidence is silent with regard to whether the deceased worker and first respondent participated in any social activities together.
There is no evidence that the deceased worker and first respondent declared themselves as a couple on any official or government documents, including on the first respondent’s tax returns or the deceased worker’s death certificate.
I have considered the case law to which the first respondent has referred in submissions. I have considered the particular complexities of the deceased worker and first respondent’s individual relationship. While I accept they may have regarded each other as ‘family’ given the bonds of their friendship, shared children and living arrangements, I am not satisfied that at the time of the deceased worker’s death that they were in a relationship as a couple living together.
The entitlement to statutory benefits upon the death of a worker only falls upon those persons who were members of the deceased worker’s family as defined in s 4 of the 1998 Act. The only category of relationship which is potentially applicable in the current circumstances is de facto partner. For the reasons given above, I am not satisfied that the first respondent was the deceased worker’s de facto partner as defined in s 21C of the Interpretation Act 1987. The legislation does not permit, and I have no discretion to allow, an apportionment of the lump sum death benefit to a person who falls outside the defined categories of family relationship, no matter how close or significant the relationship between that person and the deceased worker.
In view of these findings, the first respondent does not satisfy the definition of “dependants” in s 4 of the 1998 Act and is not entitled to a portion of the lump sum death benefit payable pursuant to s 25(1) of the 1998 Act.

Second respondent

I am satisfied on the evidence before me, including the birth certificate attached to the Application, that the second respondent was the deceased worker’s daughter. Although the evidence suggests that the second respondent had ceased to reside with the deceased worker at the time of her death, having recently moved in with her boyfriend, the second respondent was still under the age of 18 at the time. I am satisfied that she remained partly dependent for support upon the deceased worker at the time of her death.

Third respondent

I am also satisfied on the evidence before me including birth certificate attached to the Application that the third respondent was the deceased worker’s son. The third respondent was under the age of 18 years at the time of the deceased worker’s death and continued to reside with her. Although it appears that the third respondent received support from others including the first respondent and his maternal grandfather as well as financial support from the deceased worker’s former partner, I am satisfied that he was partly dependent upon the deceased worker for support at the time of her death.

Other members of the family

The evidence before the Commission includes statutory declarations from the deceased worker’s father, Denis Charles Knott, mother, Sandra Irene Knott, her brothers Jason Charles Knott and Justin Knott and niece Chante Leigh Knott. Each of those family members has indicated that they were aware of the claim, were not financially dependent upon the deceased worker and did not wish to make a claim for a portion of the lump sum death benefit.

Apportionment

In order to apportion the lump sum, it is necessary to review all of the relevant facts disclosed in the evidence. In Wratten v Kirkpatrick (1996) 15 NSWCCR 32 (at [34]), Egan A-J stated:
“The exercise of power to determine the correct amount to be apportioned to each dependant 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.”
During the preliminary conferences in these proceedings, the parties informed me that they had reached an agreement between themselves that the lump sum death benefit was to be apportioned in thirds between the first respondent, second respondent and third respondent. I have found above that the first respondent is not entitled to a portion of the lump sum payable pursuant to s 25(1) of the 1987 Act. It is apparent, however, that the parties considered that the second and third respondents should have equal shares.
Whilst the parties’ wishes are to be given weight, ultimately, I must have regard to all the relevant facts consistently with Wratten v Kirkpatrick and determine for myself what is the appropriate apportionment.
Although there is an almost two year age difference between the second and third respondents and their individual circumstances differ, I am satisfied that an equal apportionment is appropriate, particularly having regard to the fact that they are both now adult or close to being an adult and given their psychological circumstances. There will be an order apportioning the lump sum equally in accordance with the parties’ agreement.

Payment

As the second respondent has now attained the age of 18 years, she has requested, and I am satisfied that it is appropriate, that her portion of the lump sum death benefit be paid to her directly, pursuant to s 85A(1)(a) of the 1987 Act.
The third respondent is, at the time of this decision,16 years old. The usual practice of the Commission is to order payment of sums for minor dependent children to the New South Wales Trustee and Guardian. This ensures that the funds and the interests of the children are protected. I am not satisfied that there is a compelling reason for departing from the usual practice.
The third respondent’s portion of the lump sum is to be paid to the New South Wales Trustee and Guardian to be held on trust for his benefit until he turns 18 years of age.
It will be necessary for the applicant to pay additional compensation fees to the NSW Trustee and Guardian in respect of the third respondent’s portion pursuant to s 25(1A) of the 1987 Act. The calculation of those fees is to include any interest payable on the death benefit amount.

Interest

Section 109 of the 1998 Act provides:
“109 Interest before order for payment (cf former s 113)
(1)    In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.
(2)     Interest cannot be ordered under this section:
(a) on any compensation payable under Division 4 of Part 3 of the 1987 Act, or
(b) on any compensation payable under this Act for any period before a claim for the compensation was duly made, or
(c) on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102.
(3)     This section does not:
(a) authorise the giving of interest upon interest, or
(b) apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.”
In Kaur v Thales Underwater Systems Pty Ltd[1] (Kaur), President Keating J stated at [139]:
“Section 109(2)(b) of the 1998 Act prohibits interest on any award of compensation payable under the Act for any period before a claim for the compensation was duly made. I accept the submission that the claim for compensation on behalf of the appellants was not duly made until the day of the arbitration. I therefore accept Thales’s submission that, as at the arbitration, the appellants could not be entitled to interest pursuant to s 109 of the 1998 Act.”
[1] [2011] NSWWCCPD 6 at [139].
The discretion to award interest is subject to the limitations set out in ss 109(2) and (3). Relevantly, sub-s (2)(b) provides that interest cannot be ordered on any compensation payable for any period before a claim for the compensation was “duly made”.
It has become customary for interest, where ordered, to be paid at a rate of 2% above the Reserve Bank of Australia cash rate for the period between the date on which each claim was “duly made” and the date of the Commission’s determination.
The parties have reached agreement in this case that interest ought to be ordered and I am satisfied in all the circumstances that it is appropriate to make an order that gives effect to that agreement.
I was given a total dollar amount for the interest agreed upon at the last preliminary conference, however, in view of my findings in this determination those figures will no longer be accurate.
In the circumstances, I will make an order for the parties to lodge signed consent orders or written submissions with regard to interest as well as the additional compensation fees payable in respect of the third respondent’s portion of the lump sum within 14 days of receiving notice of this determination.

Costs

As the deceased worker was a paramedic and therefore an “exempt worker”, orders with respect to costs are necessary. I am satisfied that that the usual order for the applicant to pay the second and third respondent’s costs as agreed or assessed should apply.
Given the findings in respect of the first respondent, it is more appropriate that he bear his own costs. I note that s 341(4) of the 1998 Act prohibits a costs order being made against a claimant unless the Commission is satisfied that the ‘claim was frivolous or vexatious, fraudulent or made without proper justification’. As should be apparent from this determination, I am not satisfied that the first respondent’s claim is appropriately characterised in any of those ways.
No application for uplift due to complexity was made.

[2025] NSWPIC 223

22 May 2025