State of New South Wales (NSW Police Force) v Bav

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	State of New South Wales (NSW Police Force) v BAV & Ors [2022] NSWPIC 499
APPLICANT:	State of New South Wales (NSW Police Force)
FIRST RESPONDENT	BAV
SECOND RESPONDENT	BBJ
THIRD RESPONDENT	BCG
FOURTH RESPONDENT	BBL
FIFTH RESPONDENT:	BCH
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	16 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for benefits in respect of death of a worker; liability accepted; claim by first respondent claiming to have been partner of worker disputed by fifth respondent worker’s brother; no claim by second, third and fourth respondents who entered into Deed with first respondent with respect to dispute in respect of the worker’s estate and disclaimed any dependency on the worker; claim by first respondent to have been partly dependent on worker; claim by fifth respondent to have been dependent on worker for emotional support; entitlement to interest conceded by applicant; agreement by applicant and first respondent on rate of interest; period during which interest to be paid not agreed; claim by first respondent for increase of 30% in costs, due to complexity; consideration of Youseph v Homebush Unit Trust t/as Primo Smallgoods; TNT Group 4 Pty Limited v Halioris; Richardson v Turfco Australia Pty Ltd; Warilla Timber and Hardware Pty Ltd v Newton; Albury Real Estate Pty Ltd v Rouse and anor; Kaur v Thales Underwater Systems Pty Ltd; and McGrath v P.M. Electric Pty Ltd & Ors; Held – first respondent was partly dependent on worker for support; no other persons were dependent on worker for support; lump sum benefit and interest to be paid to first respondent; applicant to pay first respondent’s costs as agreed or assessed; first respondent and applicant’s costs increased by 20% due to complexity of matter.
determinations made:	1. That the worker, BDA, died on 2 January 2021 as a result of injury arising out of or in the course of employment with the applicant. 2. That the first respondent was partly dependent for support on the worker at the date of her death. 3. That there were no other persons dependent for support on the worker at the date of her death. 4. That the applicant is liable for payment of the lump sum benefit of $834,200, pursuant to section 25 of the Workers Compensation Act 1987.
ORDERS MADE:	1. That the applicant is to pay to the first respondent, pursuant to section 25 of the Workers Compensation Act 1987 and section 85A(1) of the Workers Compensation Act 1987 the sum of $834,200. 2. That the applicant is to pay to the first respondent interest on the lump sum compensation, pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998, at the rate of 2.1% per annum from 25 February 2022 to 8 July 2022. 3. That the applicant is to pay the first respondent’s costs as agreed or assessed. 4. That the costs of the first respondent and the applicant are to be increased by 20%, due to the complexity of the matter, and in accordance with Workers Compensation Regulation 2016, Schedule 6, Table 4, Item 5.

STATEMENT OF REASONS

BACKGROUND

The worker, BDA (BDA), died on 2 January 2021, in the course of her employment with the applicant, while attempting to save the life of a young woman who was caught in a whirlpool.
On 25 January 2021, the applicant’s workers compensation insurer, EML, wrote to the first respondent, BAV (BAV). It advised that he could be eligible for “further” payments. A decision had not yet been made, and liability was undetermined.
BAV was provided with information on how to make a claim and was advised that EML would be requesting the worker’s death certificate, coroner’s records, a possible expert report, and legal advice.
By letter dated 15 February 2021, the first respondent’s solicitors made on his behalf a claim pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act) for death benefits; and pursuant to s 26 of the Act, for funeral expenses.
The first respondent’s solicitors advised that there were no other persons who may have been dependent on BDA at the date of her death. She was survived by her mother, BCG, the third respondent; her father, the second respondent; her sister, BBL, the fourth respondent; and her brother, BCH, the fifth respondent. I will refer to the various members of the BEA family by their given names, to avoid confusion, while meaning no disrespect.
EML acknowledged receipt of the claim on 15 February 2021.
By letter dated 26 April 2021, the solicitors for the first respondent requested that EML advise whether it had made a decision in relation to liability.
By email dated 27 April 2021, EML advised the solicitors for the first respondent that liability had been accepted, and it would be referring the matter to the Personal Injury Commission (the Commission) to determine apportionment of the death benefit.
By letter dated 30 April 2021, the applicant’s solicitors requested further information in relation to the worker’s dependants.
By letter dated 30 April 2021, the solicitors for the first respondent advised the applicant’s solicitors that they were instructed that there were no persons other than BAV who were dependent on the worker at the time of her death.
By letter dated 2 June 2021, the first respondent’s solicitors provided some particulars of the claim to the applicant’s solicitors. They advised that they were obtaining a statement from
BAV. The worker’s estate was the subject of proceedings in the Equity Division of the Supreme Court of New South Wales.
By letter dated 3 June 2021, the applicant’s solicitors requested of Teece Hodgson & Ward, solicitors for BBJ, BCG and BBL, particulars of potential dependants.
By letter dated 5 July 2021, the first respondent’s solicitors served his statement on the solicitors for the applicant.
On 24 September 2021, the first respondent’s solicitors emailed to the solicitors for the applicant proposed consent orders, providing for the lump sum to be paid to BAV, and for payment of his costs.
By letter dated 12 October 2021, the first respondent’s solicitors served on the applicant’s solicitors a further copy of his statement. They enclosed copies of a Deed of Settlement and Supreme Court Orders of 27 September 2021. They also advised that they had requested statutory declarations from the worker’s family members.
On 12 October 2021, the applicant’s solicitors sent an email to the first respondent’s solicitors, requesting evidence of dependency and the agreement reached in the Supreme Court.
By letter dated 15 November 2021, the first respondent’s solicitors served on the applicant’s solicitors statutory declarations of BBJ, BCG and BBL.
Teece Hodgson & Ward wrote to the first respondent’s solicitors on 23 February 2022. They referred to “numerous correspondence requesting the completed Worker’s Compensation Tribunal form from BCH”.
Teece Hodgson & Ward advised that they had made requests for the document but did not have it in their possession. They confirmed that they did not act for BCH and were unable to compel him to provide it. They provided a mobile phone number and email address for BCH, so that contact could be made directly with him.
The solicitors for the first respondent provided a copy of the correspondence from Teece Hodgson & Ward to the applicant’s solicitors by letter dated 25 February 2022. They asked for confirmation that proceedings were being commenced in the Commission. They advised that the first respondent would seek an order for payment of interest on the lump sum, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
By letter dated 25 March 2022, the first respondent’s solicitors requested a response to their letter dated 25 February 2022. They advised that both letters would be tendered in support of the application for interest.
The applicant filed an Application in Respect of Death of Worker (the Application) on
28 March 2022.
The first respondent filed his Reply on 6 April 2022.
BCH filed a Reply on 14 April 2022. He did not at that stage have legal representation.
BCH’s solicitors filed a second Reply on 11 May 2022.
The second, third and fourth respondents have taken no active part in the proceedings and make no claim to have been dependent on the worker.

ISSUES FOR DETERMINATION

The following issues remain in dispute:
(a)    whether there were any persons dependent on the worker at the date of her death;
(b)    if so, apportionment of the death benefit;
(c)    the amount of interest to be paid on the death benefit, given the applicant’s concession that interest is payable, and
(d)    whether the first respondent is entitled to an increase in his costs, due to the complexity of the matter.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for preliminary conference before me on 27 April 2022. Mr Siva appeared for the applicant; Mr Edwards appeared for the first respondent; and BCH appeared, self-represented. M-r Leonard of EML also attended.
The Reply filed by BCH sought a declaration that the first respondent was not dependent on the worker at the time of her death; and that BCH was so dependent. It sought that the funeral expenses be reimbursed to “whomever paid” the expenses. It sought that the lump sum death benefit be paid to BCH, and in turn donated wholly, less any tax implications and legal expenses, to NSW Police Legacy. Interest was claimed on the lump sum.
The Reply attached no evidence in support of BCH’s claim to have been dependent on the worker. He requested one to two weeks to file such evidence. He was encouraged to obtain legal advice.
The Application was amended by consent to plead that the lump sum compensation payable is $834,200.
Directions were made for the provision of further evidence, and for service of the directions on the second, third and fourth respondents care of Teece Hodgson & Ward.
BCH’s second Reply sought that the death benefit be paid to the fifth defendant [sic].
The matter was listed for conciliation/arbitration hearing on 24 June 2022. Mr Siva appeared for the applicant; Mr Latham of counsel, instructed by Mr Edwards, appeared for the first respondent; and Mr Halligan of counsel, instructed by Mr Walkom, appeared for the fifth respondent. The first and fifth respondents attended, as did Mr Leonard. There was no appearance for the second, third and fourth respondents.
The Application was amended to delete reference to the claim for payment of funeral expenses.
The fifth respondent objected to the admission of the annexure marked “A” to the first respondent’s Application to Admit Late Documents dated 27 May 2022. The document was admitted, for reasons provided at the hearing, which were recorded. The fifth respondent did not seek an adjournment in order to respond to the evidence.
Due to the time taken in conciliation of the dispute and determination of the admission of evidence, it was not possible to conclude the matter on 24 June 2022. Directions were therefore made for further written submissions to be provided. The parties were advised that, at the end of the time allowed for submissions, the matter would be determined “on the papers”. They were granted liberty to request a further telephone conference.
The parties have now provided written submissions.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application and attachments;
(b)    Reply by first respondent and attachments;
(c)    Replies by fifth respondent and attached documents;
(d)    Application to Admit Late Documents dated 27 May 2022 and attachments, filed by the first respondent, and
(e)    Application to Admit Late Documents dated 23 June 2022 and attachments, filed by the first respondent.

FINDINGS AND REASONS

Evidence

Evidence of the first respondent, BAV

BAV ’s first statement is dated 4 June 2021.
BAV is in full time employment as a machinery technical support officer. He is often required to travel interstate and is generally working away a few nights a week.
BAV met the worker on or about 8 April 2018 and commenced a relationship with her at or about that time. As far as he was aware, she did not have any children or dependents at the time.
When the relationship commenced, BAV was renting a room in Penrith and saving for a deposit on a house. The worker lived at Katoomba and worked at Parramatta. He spent as much time as he could with her, each often spending a few nights with the other.
They spent most weekends together until the worker changed to general duties in May 2020. Before that, she worked Monday, Tuesday, Thursday and Friday. He always tried to be home from work trips on Friday afternoon, so that they could spend weekends together.
When the worker changed to general duties, she started working weekends. They spent considerable time discussing whether she would move to general duties, as they had always spent weekends together.
On or about 13 May 2018, he and the worker travelled to Megalong Valley, and he met her parents, sister, and brother-in-law.
On or about 23 December 2018, they travelled to the worker’s parents’ home to drop her cat with them while they travelled to Nathalia, Victoria, to spend Christmas with his family. On the way back, they decided to go mountain bike riding in Jindabyne.
Whilst on this trip and in Jindabyne they started talking about moving in together. They stayed with the worker’s parents as a couple on or about 30 December 2018.
In or about January 2019, they moved in together at the worker’s residence in Katoomba. He had completely moved in by March 2019.
After this, they discussed purchasing a BBMvan so they could travel together. He used the money he had been saving for a house deposit to purchase the BBMvan on or about
21 January 2019.
After he moved in with the worker, they agreed he would pay $150 per week as contribution to household expenses. The worker would pay the mortgage. The utilities, grocery expenses, and other bills would be shared equally.
They did not share bank accounts and never worried about money. They often enjoyed long brunches and weekend takeaways, which he paid for most of the time. He also paid for diesel, camping fees and other fees while they were on holidays.
The worker was very organised and was responsible for all the finances. She paid all the rates, strata fees and bills. If she wanted him to pay something, she would give him the figure to contribute, and he transferred it to her so she could pay.
The worker usually cooked and would often spend her days off cooking, making extra meals to eat later. The freezer was always full of such meals. He would usually help by preparing accompaniments to the meals.
As the worker did most of the meal planning and cooking, she did most of the grocery shopping. He picked up any additional items she asked him to get. They shared the clean up after meals, and both packed and unpacked the dishwasher and washed up.
The worker often washed and sorted his clothes, especially when he was working away from home. He did not do her washing or any of the general washing. The worker did this and never asked him to assist.
The worker was very houseproud. They often spent a few hours on Saturday morning cleaning, so they could spend the rest of the weekend doing things together. He often did a quick vacuum or clean-up, which the worker would re-do, as she would be upset if things were not done her way. The worker did all the spring cleaning, and he estimates she did about 60% of the week to week cleaning.
He attended to home maintenance, changed all the upstairs downlights to LED and spent numerous hours working in the common area doing activities such as servicing the roller door and changing basement lights. He had responsibility for taking out the rubbish and the bins.
The worker loved plants, and they spent a lot of time getting pots, planting, and arranging the plants. He moved the pots where she wanted them. She watered the indoor plants and he the outside plants. He swept the courtyard when he was home.
Before they went away with the BBMvan, the worker would get a lot of the gear ready, wash the linens and shop for food. He would pack the BBMvan and perform any required maintenance.
The worker was responsible for all the maintenance and care of Dusty, the cat.
When the worker was working night shifts, he would try to get out of the house while she was sleeping. She would often say words to the effect of “You do not have to do that, it is your house too”.
They lived a very normal life as a couple. They posted lots of photos of their adventures on social media. The statement attached copies of photos of them doing various activities together.
He and the worker socialised with colleagues, friends, and family as a couple. She accompanied him to his work Christmas parties and he attended hers. He attended her cousin’s wedding with her, and they attended family functions together.
He provided love, emotional support and affection to the worker, especially when she had stressful periods as part of her work.
The worker was easily stressed regarding her health, as she was a breast cancer survivor. The smallest upset stomach would often upset her, and she would freak out and worry that her cancer may be back. They talked about this often, and he would reassure her.
The worker was often under stress at work. Recently, she would call him in the morning on her way home from night shift and he talked to her for the entire drive. This let her unwind and kept her awake. They would chat in general, whatever she needed to get off her chest.
Before the worker purchased a new car in mid-2020, he often worked on her old Commodore ute.
After the worker transferred to Lithgow, her roster was not regular, but they tried to work their schedules so they could do things together and go away when they could. They tried to time their days off and holidays to spend as much time as they could together.
The worker was very stressed about Covid-19, and they did not really go anywhere for months. They used this time to plan walks and other things they wanted to do together.
They regularly discussed their plans for the future, and the possibility of eventually moving to Tasmania. They made no immediate plans and discussed purchasing a house in the mountains when they had paid off some of their debts.
They were both happy living in the worker’s townhouse, but they desired more space and storage, and she wanted a garden. They had discussed possibly starting to look at purchasing a house in the Katoomba area in 2022.
They each had an endless list of things they wanted to do and discussed hikes they wanted to do in the future. They discussed travelling around Australia, using the BBMvan as a base. The worker had walked the overland track and wanted to do it with him. They had also discussed more trips to Tasmania.
They spoke about getting married. They had discussed that it was a possibility and might be fun to do in the future but made no set plans. He had finally found someone to love, stay with and live with. He was devastated by the loss of the worker.
Since the worker’s death, he has suffered from insomnia, anxiety and stress.
The first respondent has made a second statement, in response to BCH’s evidence. It is appropriate that I discuss that evidence after that of BCH.

Evidence of the fourth respondent, BBL

BBL made a statutory declaration on 9 November 2021. She confirmed that she had received legal advice.
BBL confirmed that she was not dependent on the worker at the time of her death and did not wish to make a claim on the death benefit.
To the best of her knowledge, the worker had no other dependants or potential dependants than BAV, with whom she was residing at the date of her death.
On 15 September 2021, agreement was reached between herself, her parents and
BAV regarding the worker’s estate. It was agreed that the death benefit was to be paid to BAV.
BBL made a second statutory declaration, dated 26 May 2022.
She stated that, to the best of her knowledge, BCH was not financially or in any other way dependent on the worker at the time of her death.

Evidence of the second respondent, BBJ

BBJ made a statutory declaration on 10 November 2021. He confirmed that he had received legal advice.
He confirmed that he was not dependent on the worker at the time of her death and did not wish to make a claim on the death benefit.
The statutory declaration is otherwise in substantially similar terms to that of BBL.
BBJ made a second statutory declaration, dated 23 June 2022.
He stated that, to the best of his knowledge, BCH was not financially dependent on the worker at the time of her death.

Evidence of the third respondent, BCG

BCG made a statutory declaration on 10 November 2021. She confirmed that she had received legal advice.
BCG confirmed that she was not dependent on the worker at the time of her death and did not wish to make a claim on the death benefit.
The statutory declaration is otherwise in substantially similar terms to those of BBL and BBJ.
BCG made a second statutory declaration on 23 June 2022.
She stated that, to the best of her knowledge, BCH was not financially dependent on the worker at the time of her death.

Evidence of the fifth respondent, BCH

The Reply filed by the fifth respondent attached only documents relating to the settlement in the Supreme Court, to which I will refer below, and an ABC news article about the worker’s funeral.
The article quoted the second respondent. It noted that the worker’s family remembered her as a loyal, protective and caring sister. The then New South Wales Police Commissioner Mick Fuller described her “above all”, as a “kind and loving daughter, sister and partner”.
BCH’s statement is dated 11 May 2022. It attaches a number of documents, to which I will refer below.
BCH is 38 years old. He has described growing up with the worker, who was the oldest, and BBL, on the edge of the Royal National Park. They did many activities together.
Since 2012, he has owned and operated his own small construction company.
In their adult years, he and the worker had an interdependent relationship, confiding in each other about various issues, including relationships, finances and health.
The worker was previously a primary school teacher and often talked to him about the pressures of working in rough neighbourhoods.
They spoke at length about the worker joining the police force and her concerns of not earning any money while training. He offered her financial assistance, but in the end, she was given a scholarship.
The worker provided him with emotional support during the breakdown of his previous relationship. She also attended Family Court with him. His daughter, BBM, and the worker had a special bond and she looked after BBM during school holidays, allowing him and his current partner to continue working, which was helpful financial assistance. The worker took BBM on a tour of the police station, and various other places. The statement attached some photos of the worker and BBM.
He always offered the worker money while she was caring for BBM, but she always said, “forget about it” or “don’t worry about it”. She looked after BBM at her own home or their parents’ home. BBM looked at her as a mother figure.
He provided the worker with emotional and physical support, as he lived with her “during her battle with breast cancer”. He, his partner and his parents took turns caring for her. He offered her financial assistance, but she accepted it from their parents.
The worker’s treatment had left her very self-conscious of her body. She told him she was worried “no one would want her”. He reassured her.
He had asked the worker if she had a will a short time after her diagnosis. She said she did not. The topic came up the following Christmas. She said she had a will, which she later moved to a fireproof safe. The safe was removed by BAV after her passing and when he vacated her house the safe was returned empty.
He and his partner took the worker to his barber to shave her head when she started to lose her hair. The statement attached a photo of this. He, his partner and parents took time off work and took turns driving BDA to her treatments.
They lived together at their parents’ house until 2017, when the worker purchased at Katoomba. He had earlier moved out for about six years, while living with a previous partner. She asked him for advice before the purchase. He was initially one of the only people to support the move.
The worker and BAV met on Tinder in or about April 2018. BCH did not have input into her comings and goings, but they still confided in each other.
BAV was not dependent on the worker and did not meet de facto status. He at one stage had a close relationship with her, but it had ended prior to her passing. They did not have joint bank accounts, loans, finance, credit or any forms of joint finance or income. They had a rental arrangement for him to live at her townhouse. The worker purchased it approximately a year before meeting BAV.
The worker confided in him that BAV earned a lot more than her. Her 2019 and most recent tax return did not list any spouse or de facto.
BAV worked away frequently for long periods, where he “is unquestionably solely dependent on himself”. He purchased a BBMvan solely in his name, using some savings and finance in his name. The worker purchased a new car, solely in her name, and paid for with her own cash, in 2020.
His company had submitted tenders to gain work in Blue Mountains City Council. The worker had offered to provide him with free accommodation, which he would have accepted had they been successful.
The first time he recalls the worker telling him of her relationship with BAV starting to “fracture” was in November 2019. She said she was “starting to see a side of him that she didn’t like”, and he was becoming “nasty and aggressive”. He advised her to see if she could work things out but don’t let things out of control.
Subsequent conversations with the worker left him not much hope of the relationship surviving much longer. This came to a head at the BEA family Christmas in 2020, held on 19 December 2020.
This was the last time he saw his sister alive. She was irate and in a very bad mood. He had not seen her like that for years. She would act like this when she was at her mind’s end and totally fed up with something. The rest of the family commented on her mood. He knew something was wrong.
BAV indicated that he had to repair and repaint the walls. BCH asked why, as they were in very good condition. He very sheepishly said he had damaged them.
He asked the worker what was going on. She said BAV had “crossed lines”, she had asked him to “get out”, and they were “over”. She didn’t want to go with him to visit his family, but didn’t really have a choice. She said she didn’t want to be around him.
BAV had no interest in helping plan BDA’s funeral, offered no suggestions, had no input, and offered no financial support to the family. He did “manage to find the time to obtain legal representation” before the funeral.
After BDA’s death, BAV “made his intentions clear” by using her mobile phone to search for her superannuation fund and trying to log into her bank accounts five days after, without consulting her family.
BAV left the wake almost immediately, to go and drink with his friends. A Facebook post showing him “enjoying a beer with his friends” was later removed.
The worker had offered to become a celebrant to marry him and his partner. He was very excited by this, but Covid-19 halted all wedding plans. They are both saddened that it is no longer an option.
The townhouse where the worker lived had significant water issues. She had asked if he would be interested in tendering for the repairs and offered him accommodation if he undertook them.
Losing BDA has left an immeasurable hole in his life and the family dynamic is not the same without her. He doesn’t have her to bounce ideas off, ask for advice or complain about his parents. His daughter has lost her aunty, who she viewed as a mother figure.
In response to BAV ’s statement, BCH said he did not move into the worker’s townhouse until 6 April 2019, not January 2019.
BBMvanning was BAV ’s interest, not BDA’s. It was a sole decision to purchase it. As he had to use finance to purchase the $25,000 BBMvan, the “house deposit” he saved would have been too small to consider purchasing in the foreseeable future. He referred to a Facebook post saying it was BAV ’s BBMvan.
He again referred to the rental arrangement and the worker’s bank records. She paid all outgoings and BAV transferred funds each quarter for his portion of the utilities.
The worker would only eat fresh and organic food. BAV is well known for not eating healthy and did not eat the same food. She did not cook for him on even a semi-regular basis. They each cooked their own meals. As BAV worked the majority of the time away, and BDA worked shift work, the times they were in the same house for dinner would be rare.
The worker and BAV each did his or her own washing. She often said she was highly opposed to him using her washing machine to wash his work clothes, as they stunk and were filthy.
The worker told him she did most of the cleaning and BAV would just leave mess everywhere. This was a constant source of arguments.
BAV did not change the basement lights. BBJ gave the worker new tubes, which remain in the back of her car. BBJ did all the maintenance and repairs, as he is a builder. The only repair BAV made was to the walls he smashed in one of his moments of rage.
It was well known that BDA loved her plants. It was also well known that BAV had no interest at all in plants and would not help her water and look after them. She asked him to help her plant them, and he went bike riding instead.
The worker told him she didn’t want to invite BAV to her Christmas party in Lithgow in 2020. She also told a colleague, “Mick”, this. Mick told him this after her passing. BAV was not named on the invitation to their cousin’s wedding. She was not aware he and the worker were seeing each other.
BAV did not work on BDA’s car. BBJ did most of the work on it, and what he could not do was done by a local mechanic.
The worker had never mentioned to friends or family that she was thinking of moving to Tasmania. She was also not thinking of purchasing real estate personally or with BAV. She had asked if he wanted to hike the overland track with her, and he declined. She had confided that she felt the relationship was starting to fail at that point, as she felt she was missing out on things she wanted to do. She hiked the track herself.
The worker had asked BAV to get out of her house and told him it was over. Marriage was the furthest thing from her mind.
BAV claims to be suffering from insomnia, anxiety and stress due to the worker’s passing. Considering the manner of her death, he finds it odd that BAV would, a few months after her death, go white water rafting.

Attachments to statement

Annexure A contains a post (possibly on Facebook) on 6 April 2019, from the worker “Helping Gav Farewell Glenmore Park”.
Annexure B is a Facebook post from the worker, dated 16 February 2019, referring to “Gav’s BBMvan, he bought it!”. She went to say they hadn’t taken it on a trip yet. That was the day “we took it home to clean it and get it all set up”. She was on call that week, so they couldn’t go away that weekend either. They would head out next weekend “for the maiden voyage!!”. There is an email to BAV advising that his loan had been approved.
Annexure C is an extract from the worker’s bank account, showing “rent” paid by BAV on what appears to be 3 December 2020, and a rent payment on 27 March 2019. There are text messages on 25 March 2019, in which BAV referred to sorting bill paying, and setting it up for every Wednesday. They agreed on $150 for rent, and the worker asked if it was too much, as he was also paying half the bills? He responded that he had “no idea lover”.
Annexure D is a copy of an exchange of text messages between the worker and BAV on 15 December 2019. There had clearly been some disagreement. The worker was “sad that you can’t even talk to me”. BAV responded that he had learnt to give her some time. “I know it shits you, but it’s always best to [sic] you calm down”.
The worker “wasn’t all worked up to start with!!”. BAV was “the one who cracked it when I didn’t agree with you about the stupid fucking vacuum”. BAV had not cracked it over that, but “when you say [sic] on couch with head in hands hating on me”.
BDA responded that she was “tired and fucking starving. I was waiting for my turn in the kitchen not hating you”.
Annexure E is a copy of an exchange of text messages on 6 July 2020. BAV forgot to charge the work phone, so no one was able to get hold of him. He was just starting on “like three loads of washing etc”.
There is also a copy of an exchange of text messages on 23 September 2020. BAV asked if the worker was out for a stroll. She responded that she was doing a few things first. She was waiting to hang out the washing she needed for work before she went. BAV answered, “Enjoy your walk lover xoxoxox”.
Annexure F is a copy of an exchange of text messages on 22 April 2019. The worker asked if she would just clean up BAV ’s giant mess in the kitchen? He responded that she was being really unfair to him at the moment. He was “getting really upset that you’re having a go at me”. The worker answered, “I’m being unfair?!!”.
Annexure G is a copy of a message saying that “You will be paying for the damage you caused to my house when you smashed it up then never want to hear from you again”. “That’s absolutely fucking rubbish”. “You smashed up my house”.
Annexure H is a copy of a text message from the worker on 29 August 2020, saying “By the way. I’m a little annoyed you said no to the planting and had the energy to go riding”.
Annexure I is a copy of a wedding invitation to “BDA & Guest”.
Annexure J is a copy of an exchange of messages which is undated (or at least the date is illegible). I will not repeat it verbatim. The worker said she wanted BAV to fix the shoe rack. She had spent all this time cleaning up plastic.
BAV said he could fix the rack and replace the shoe boxes. He could not change the worker’s mindset on [or?] how he felt overnight. The worker responded that the conversation was far too serious to have over messenger. It was insulting and offensive that he was trying to do that.
The worker messaged “FUCK YOU!!!”. She said BAV had no right to tell her how she felt. Absolutely nothing had changed, and he had made no effort whatsoever to be any more physical with her. She said “How dare you speak to me like that. You will be fixing that shelf”.
BAV responded that he would yell if he wanted to yell, to which the worker said it was rude and disrespectful. He said she dealt with things by being a “snappy bitch. I deal by yelling. Get over it”.
The worker messaged “We are done”. BAV asked if she wanted that “over message” and putting her current anger aside, “That’s what you want????”. The worker answered that he was to fix the shoe rack, buy her new storage boxes “then fuck off”.
BAV asked if the worker truly meant that. She answered that she would not spend the rest of her life with someone who thought it was OK to smash things and yell at her, and he could have been charged for what he did. He answered, “then charge me”.
The worker said it was “one hundred percent reportable domestic violence” and she would not live with someone who thought it was OK. BAV responded that it wasn’t OK. The worker had “no idea who you are right now but you are not the person I love”.
BAV agreed with this comment. He said they were both “angry and fucking pissed. And it’s [sic] fucking kills me”. The worker sent an emoji (it is difficult to see whether it is smiling or frowning, but appears to be smiling) and said she was not angry, but upset and trying to tell him how she felt. There is a link to an advertisement for a steam mop, the significance of which is unclear.
There is a series of messages dated 25 December.
The worker asked where BAV was. He replied that he needed to be by himself. He knew she would be angry with him. She answered that he was with his “fucking family”. He responded, “that’s absolutely fucking rubbish”.
The worker said he did not love her at all, and “This is absolutely heartbreaking. I’m done”. He had made her “eat cat shit. You smashed up my house. Now you leave me in a BBMvan on Xmas day when you are with your family”.
BAV responded that the worker wanted him gone anyway. She “couldn’t make it any more obvious if you tried”. She answered she “[did] now”. This was the worst Christmas of her life. It was the worst week of BAV ’s life. He was “so tired of trying to make you happy”. He did not even want to live right now.
BDA again asked BAV where he was, “you selfish prick”. She said “we are so done… I’m over being treated like a fuckwit. I’m over being disrespected. You are not the person I thought you were”.
BAV was sorry it had “come to this”. He truly loved the worker more than anything. He was sorry and did not know what to do. The worker responded that he would be paying for the damage to her house when he smashed it up and then she never wanted to hear from him again. “You made me eat cat litter”. He had left her sitting in a BBMvan after yelling at her because she suggested they go inside with his family and watch the kids open presents.
BDA described BAV as selfish, angry, disrespectful and nasty. He said he “can’t fix this. You don’t love me. I hate life. I’m going. I’m sorry”. BDA didn’t care how he felt right now.
Annexure K is a photo of Rotorua Rafting. It appears that BAV is in the photograph.
Annexure L appears to be a photo of the BEA children go-karting.
Annexure M is a photo of the worker with BBM.
Annexure N is a photo of the worker having her head shaved.
Annexure O is a blank page. According to the statement, it is the worker’s 2019 tax return.
Annexure P appears to be the search history for superannuation referred to in the statement
Annexure Q is a photograph of a Facebook post “Celebrating a life today”. It says, “Ben Kavanagh is with BAV and Andrew Smith at Mountain Culture Beer Co”. Three smiling men are pictured.

Response of first respondent, to statement of fifth respondent, BCH

BAV made a further statement dated 27 May 2022. He confirmed the contents of his first statement. This statement attaches a number of documents, to which I will refer below.
He is aware of only two occasions since the commencement of his relationship with the worker when BBM came to visit.
The worker never mentioned she had a will. He was not aware of it being placed in the fireproof safe and has never seen a will.
They had reached an agreement where he would contribute to household expenses. They never came to a rental arrangement.
He believes he was listed as the worker’s partner in the personal contact details contained in her employment records with the applicant. He understands she nominated him as her partner. He attached a letter from the applicant dated 4 January 2021, which confirmed he was paid her accrued entitlements as her “partner”. This was the document to which the fifth respondent took objection.

The worker referred to him as her partner in an email she sent when booking the bushwalking trip for 2 January 2021. He attached copies of emails between her and the organiser.
He would sometimes work away. He and the worker would message and call multiple times and keep in constant contact.
He at times helped the worker’s father with work around the townhouse.
He denies ever smashing the walls or being required to repair them. On or about
12 December 2020, he slammed some of the worker’s plastic shoe boxes down when they were arguing, and they shattered.
BCH had annexed only selective messages with respect to the argument on
12 December 2020, and he has attached copies of all the messages.
He and the worker reconciled after the argument on or about 12 December 2020, “like we always had”. At no time did she indicate she was unhappy or did not want to go to Victoria for Christmas with his family.
They had an argument at Christmas 2020 but sorted it out. She understood Christmas was hard for him and he was feeling anxious and stressed and struggling to cope. After the messages that appear in annexure J to BCH’s statement, the worker picked him up. They had a long conversation where they worked things out. She was very understanding and tried to support his feelings.
He denies inflicting abuse or hatred on the worker or disrespecting her. He has attached copies of messages showing they were in a loving relationship.
He denies having no interest in planning BDA’s funeral. He was grieving and in shock. While he was at funeral home with her family, they were very forceful in what they wanted and he felt he was not in a position to argue, or that any suggestion he made would be welcome. He felt outnumbered and excluded, as they did not recognise him as part of their family.
He understands NSW Police Legacy paid for the funeral. At no time did the worker’s family request that he pay any expenses. Had a request been made, he would have happily contributed. He was at the wake for about two hours and found it emotionally difficult. The worker’s family made him feel not welcome, so his friends took him for a beer so they could remember her together.
They had their ups and downs in the relationship. However, they loved each other and would figure everything out. When they fought, they both said things they regretted, but always made their peace and moved on. He has attached copies of messages they sent when they fought and got over it. They often had verbal arguments or arguments over messenger. He was never violent towards the worker.
He and the worker attended BBL and her partner’s place on New Year’s Eve 2020 as a couple. He has attached a photo and pizza order.
He and BDA were still in a relationship at the time of her death. They did not have any plans to break up. They attended the canyoning activity on 2 January 2021, when she lost her life, as a couple.
He does not believe BCH was dependent on the worker at the time of her death. To the best of his knowledge, there were no persons dependent other than himself.

Attachments to statement

Annexure A is a copy of a letter from the applicant to BAV, dated 4 January 2021. It expressed its condolences on the death of his “partner” and enclosed a cheque made out to him for BDA’s leave entitlements.
Annexure B is a copy of a series of emails regarding the worker’s and BAV ’s attendance at the event where she was killed. She advised that “my partner and I” were interested in participating. “We” had been doing mostly off-track walking lately. The email advising that they were looking forward to it is signed “BDA and BAV ”.
Annexure C is headed “Upper Blue Mountains Bushwalking Club Member Emergency Contact & Medical Information”. BDA provided the details of BAV, followed by her sister and mother.
Annexure D is a copy of further messages sent on 12 December 2020. I will not reproduce them verbatim.
On 12 December 2020 there was a discussion about fixing the shelves.
The worker said she had the right to tell BAV how she felt. This was “an extremely serious problem” that had been going on for at least two of the three years they had been together. If he came back, they had “some serious things to sort out”.
BAV said he couldn’t fix “it today”, but it was a problem he wanted to fix. He would “be loyal to you until the day I die. I will not cheat on you. Ever”. He needed her to trust him.
This argument appears to have arisen about a disagreement about BAV ’s and the worker’s sex life.
There are then a series of messages and photographs marked Annexures E to F. Messages were sent on 16 April 2018 and 14 May 2018. It appears that the worker’s wallet had fallen out of her bag [assumed to be at BAV ’s home]. She would collect it at a convenient time. On 14 May 2018, she thanked him for coming to meet her family. She “had a great time with you there”.
There is a photo of the worker and BAV against a backdrop of mountains on
20 May 2018.
During August and September 2018, BAV and the worker discussed whether he should go to Victoria for Christmas. The worker said the plan “Kinda depends on your plans to go to Vic I guess”.
There is a further photo of the couple on 22 September 2018. BAV said he was on his way, to which the worker responded “Thank you. I love you”.
There is a long series of emails in September 2018, in which the worker and BAV express their love for each other. The worker referred to him making “such an effort with my family”. There is a photo of them in bed on 24 October 2018.
The worker told BAV on 5 November 2018 that she had “RSVP’d” that he would come to her cousin’s wedding with her. He said “of course” he would come. They were photographed at the wedding on 9 March 2019.
In December 2018, there was a discussion about Christmas gifts and a card.
On 20 December 2018, BAV told the worker “I love you to death”. 2019 was a new year and they would get her “little house back to scratch”. She knew she was “stressing over things that aren’t a big deal”. Little things had piled up and seemed like huge problems. She didn’t want [their involvement] to stop “not even for a minute”.
On 22 January 2019, there was a series of messages about the worker meeting some people (apparently BAV ’s friends) about whom she was nervous. She was “trying to work out what the fuck I did that was so terrible”. BAV said she had taken it to heart “because I rarely snap”. She responded it was because she only cared that these people mattered to him.
There is another photo of the worker and BAV on 26 January 2019. He “love[d] her to death” and did not want anything to change.
On 31 January 2019, the worker advised that Telstra was adding BAV to the account but could only put him as “limited authority”.
On 27 February 2019, there was an exchange of messages. There had been an argument. The worker said BAV had told her she couldn’t be loved and was “a cunt”. She could work on certain things but not totally change who she was. She was independent and had to deal with “a fair bit of shit” on her own. She still loved him.
BAV said he loved her. He later sent a message that he was glad they were OK. She advised that his pillow from here was in the van “lover”.
By March 2019, the worker and BAV were exchanging loving messages and he was calling her “lover”.
There is a photo of BAV and Dusty, sent to the worker at her request, on 1 April 2019.
There is an exchange of texts on 22 April 2019, in which BAV accused the worker of being unfair to him. This was in response to her text about “your giant mess in the kitchen”. The issue appeared to be resolved by 23 April 2019. By 30 April 2019, they were again exchanging loving messages. There are photos of them at Mudgee and Hill End.
In May 2019, there were some texts with links to Amart Furniture. BAV referred to the worker as “lover”.
On 3 May 2019, the worker expressed disappointment that BAV did not pick her up so they could go home together. She was not “mad” at him. He offered to come back, but she refused. He said he had turned around and she responded, “GO HOME”. She was now “getting shitty”. The exchange continued with BAV sending her his location. He was sad she was being “so mean”. She was “so extremely fucking pissed that you won’t listen”. They argued about who was more tired.
The worker and BAV were back on good terms by 12 May 2019. They discussed replacing furniture on 13 May 2019. On 14 May 2019, she was “genuinely grateful for everything you do around the house”.
There are photos of BAV and the worker hiking in July 2019.
There are messages between the worker and BAV in August and September 2019 that it is unnecessary to reproduce.
In October 2019, there was an argument about buying groceries. The worker sent BAV a message on 17 October 2019 that he was not to send her one single message about what to get, as she was too busy to answer questions about groceries, or was he just planning on getting stuff for himself? He suggested they have the conversation later, as “you’re obviously in a shit mood now”. They had spoken about how all he did recently was argue with her ideas.
On 4 November 2019, the worker and BAV posted photos of a two week BBMvan trip.
On 6 November 2019, there was a long exchange of texts where each accused the other of being “nasty”. The worker was “tired of walking on eggshells”.
The worker advised that BAV needed to have a serous think about whether he wanted to still be in the relationship. The way he treated her and things he said in Beechworth were “incredibly nasty and hurtful”.
The worker felt like he hadn’t been happy for some time, regardless of being in the boot [for a broken ankle]. She was trying to encourage him to be his normal positive self and snap him out of being depressed. She wasn’t saying anything out of nastiness.
The worker advised that BAV needed to have a serious think about whether he wanted to still be in the relationship. She never said she didn’t want to be with him. It felt like he didn’t want to be with her but did not want to tell her that. He said he would tell her.
BAV said they were allowed to have disagreements and arguments. That did not mean he did not love BDA or want to be with her. The argument appeared to be resolved.
There is a photo of the worker and BAV at a concert in Lithgow on 16 November 2019.
There was a further argument on 31 December 2019, when the worker accused BAV of calling her dumb. He said “I said dumb questions. And you said fuck off. Which is too much”. He was annoyed that all she did when he got home was lecture him about the garage. It was New Year’s Eve, and they were meant to be having fun. He apologised for being harsh, and she answered that he either come upstairs and talk to her or she would talk to him tomorrow.
There was an affectionate exchange of texts on 7 January 2020.
On 19 January 2020, BAV apologised to the worker for getting upset. He would continue working to “get my shit together”. He wanted nothing more than her in his life. He expressed his love for her.
In response, the worker expressed her love for BAV, but said there was something they really needed to fix. She “really didn’t want to talk about it over messenger”.
The worker and BAV were researching jackets and exchanging affectionate messages on 26 January 2020.
On 12 March 2020, the worker advised that she “got the job lover!!”. BAV was “very excited” for her and had told her to be more confident in herself. She apologised on
16 March 2020 for having been “such a stressed out mess”. He “wouldn’t change [her]”. She said they were “a great team xoxo”.
The worker was “a bit upset” on 15 April 2020 because her riding glasses were probably still in the top of BAV ’s backpack. She asked how she could possibly go riding “when the house is the way it is”. She was “beyond pissed” because he didn’t “give a flying fuck”.
BAV had paid a “fortune” for the worker’s bike and the upkeep. She said to sell it. “We are not working”.
On 21 April 2020, BAV sent the worker a message that said he knew she had given up on him. She had even told him. He “just can’t handle it”. He would always love her and was sorry she now felt this way. He never wanted this. He ended “Love you Kel. I’m sorry”.
The worker responded by asking if she was to take from the message that they were over? BAV answered that he did not want to lose her. He could see in her eyes how “broke” she was with him. He had never seen her so over him. He could not fix this tonight or fix the last six months. He could not change the fact that she thought he did not want to have sex with her. “You’ve got that so wrong”, but there was nothing he could say.
BAV was outside in the car, and the worker asked him to come into the house. She was not angry but upset.
On 26 April 2020, the worker expressed her love for BAV and apologised for being “a cranky bitch lately”. She was going to work on that because she did not want to lose him.
There were further affectionate text messages in June 2020.
On 28 July 2020, BDA sent BAV a message saying that he had told her last week that he understood why her ex cheated. It appears from the context that there may have been an argument over a condom wrapper, which BDA thought meant BAV had been unfaithful. He denied this and said he would “never ever cheat on you. I fucking love you Kel”.
They seemed to be back on good terms on 29 July 2020, when BAV helped the worker to reset her phone.
On 2 August 2020, the worker accused BAV of showing no interest in sex with her but having “some hidden thing going on with some slut” he had not mentioned, who looked exactly like his ex, put naked photos of herself on the internet and “lives here”. He told her to stop. She said to “Go be with her. I’m fucking over it”. By that evening, she sent a message that she loved him too, “it will just take me time to get over what was said”. She believed they could sort it and move forward.
The worker and BAV exchanged affectionate messages on 5 August 2020. He offered to “sort dinner” on 7 August 2020.
There were text messages in September 2020 and November 2020 which it is unnecessary to reproduce.
Annexure G is a photo taken on New Year’s Eve 2020, and confirmation of a pizza order by BAV .
Annexure H is an exchange of texts on 28 December 2020 about grocery items; and on
29 December 2020 and 30 December 2020 links to a storage unit and pool accessories.
There is a link to organic produce and a printer on 1 January 2021.

Proceedings in the Supreme Court of New South Wales

The worker’s estate was the subject of proceedings between the first, second, third and fourth respondents. BBJ and BCG disputed that BAV was the worker’s de facto partner. A will had not been found, and she died intestate.
By Deed of Settlement (the Deed), the parties agreed on a resolution of the dispute.
It is unnecessary to refer to every term of the settlement.
BAV agreed to vacate the worker’s property by 17 November 2021, and on doing so, the worker’s entitlements referred to in annexure A to his second statement would be released to him. He was to maintain the property and pay rent of $150 per week.
BBJ and BCG were to be granted access to the worker’s property and take any personal property. BAV was also to make Dusty and his personal items available for collection and to care for him until the date of the inspection. BBJ and BCG undertook that he would be well cared for.
The parties agreed that BAV was solely entitled to the whole of BDA’s workers compensation. They would take all necessary steps to cooperate in this, and, to the extent that BCH’s cooperation was required, procure it. If they or BCH received any payment of BDA’s workers compensation, they would within seven days transfer the amount to
BAV. He would indemnify BBJ and BCG in respect of any tax that became payable.
BAV disclaimed all entitlements to the worker’s superannuation.
On 21 September 2021, the Supreme Court made orders (the Orders) giving effect to the Deed and, subject to compliance with the Probate rules of the Court, granting Letters of Administration to BBJ and BCG. The matter was to be referred to the Senior Deputy Registrar in Probate to complete the grant.

Legislation

Section 25 of the 1987 Act provides:
“Death of worker leaving dependants
(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 (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, and
(b) in addition, an amount of $66.60 per week in respect of--
(i) each dependent child of the worker under the age of 16 years, and
(ii) each dependent child of the worker being a student over the age of 16 years but under the age of 21 years.
(2)     Payments in respect of a dependent child under subsection (1) (b) shall continue-
(a) except as provided by paragraph (b) - until the child dies or reaches the age of 16 years, whichever first occurs, or
(b) in the case of a dependent child who is a student at the time of the worker's death or after reaching the age of 16 years-until the child dies, reaches the age of 21 years or ceases to be a student, whichever first occurs.
(3)     The amount of any weekly payments, or other compensation payable under this Act, shall not be deducted from the amounts referred to in subsection (1) (a) or (b).
(4)     If an amount mentioned in subsection (1) (a) at any time after the commencement of this Act-
(a) is adjusted by the operation of Division 6, or
(b) is adjusted by an amendment of this section, the compensation payable under subsection (1) (a) is to be calculated by reference to the amount in force at the date of death.
(4A) If the death of a worker results both from an injury received before the adjustment of an amount mentioned in subsection (1) (a) and an injury received after that adjustment, the worker shall, for the purposes of subsection (1) (a), be treated as having died as a result of the injury received after that adjustment.
(5)     In this section--
‘child of the worker’ means a child or stepchild of the worker and includes a person to whom the worker stood in the place of a parent.
‘dependent child of the worker’ means a child of the worker who was wholly or partly dependent for support on the worker.
‘student’ means a person receiving full-time education at a school, college or university.”
Section 4 of the 1998 Act defines “dependants” as follows:
“‘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”
Section 21C of the Interpretation Act 1987 provides:
“(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 29 of the 1987 Act provides:
“Apportionment of payments between dependants
(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).
(3)     The NSW Trustee may decline to deal with an application for apportionment and advise the parties to apply to the Commission.
(4)     The NSW Trustee is not to deal with an application for apportionment of compensation if an application for apportionment of the same compensation is before the Commission.
(5)     A decision by the NSW Trustee to apportion compensation under this Division is subject to any decision made by the Commission with respect to the matter.
(6)     If there are both total and partial dependants of a deceased worker, the compensation may be apportioned partly to the total and partly to the partial dependants.
(7)     If a dependant dies-
(a) before a claim under this Division is made, or
(b) if a claim has been made, before an agreement or award has been arrived at or made, the legal personal representative of the dependant has no right to payment of compensation, and the amount of compensation shall be calculated and apportioned as if that dependant had died before the worker.
(8)     The regulations may make provision for or with respect to the publication of applications for apportionment and any other matter connected with apportionment.”
Section 85A of the 1987 Act provides:

“85A Payment of benefits to beneficiaries

(1) Despite section 85, the Commission may authorise the payment of compensation referred to in section 85 (1)--
(a) to the person who is entitled to the compensation, or
(b) to such other person, for the benefit of the person entitled to the compensation, as the Commission thinks fit.

(2) Any such payment is to be made in the manner authorised by the Commission.”

Section 109 of the 1998 Act provides:
“(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.”

SUBMISSIONS

The oral submissions have been recorded, and written submissions have also been provided. I will therefore refer to the submissions only briefly.

First respondent

264.The first respondent orally submitted that the evidence clearly shows that he was wholly or partly dependent on the worker, and the fifth respondent was not.
265.The first respondent referred to his first statement, submitting that he was both financially and emotionally dependent on the worker. By contrast, the fifth respondent’s evidence is irrelevant to the issues. There is no evidence of dependency, apart from the usual sibling interdependence. He lived a considerable distance from the worker, and her family unambiguously denied any dependence on her.
266.The first respondent submitted that the fifth respondent had provided selective evidence about the Christmas argument. The evidence showed the usual “ups and downs”. The vast number of text messages showed the usual mix of love, contentment and complaint that describes most partnerships. The worker herself referred to the first respondent as her partner.
267.The first respondent submitted that the fifth respondent had made a spiteful attempt to prevent him getting the compensation, contrary to what his sister, father and mother had decided. If his evidence was probative, which it was submitted it is not, it should be rejected.
268.The first respondent referred to the evidence of BBJ, BCG, and BBL that they did not want to claim. He submitted there were no other persons dependent. The fifth respondent was not dependent at the date of the worker’s death, and I should reject his evidence regarding the end of the relationship, reject entirely his claim and the claim for apportionment.
269.The first respondent claimed interest on the lump sum from 5 July 2021.
270.In reply to the fifth respondent, the first respondent submitted that the test of “de facto” submitted by him is not the test under the Act. The suggestion that he and the worker were girlfriend and boyfriend is offensive. It is a question of fact, and the first respondent was dependent.
271.The first respondent provided written submissions dated 8 July 2022.
272.The first respondent submitted that his statement was provided to the applicant’s solicitors on 5 July 2021, confirming his relationship and dependency on the worker. The insurer would have had sufficient details to determine the matter or alternatively refer it to the Commission for determination of apportionment.
273.The first respondent submitted the Deed and Orders were provided to the applicant’s solicitors on 12 October 2021. They confirmed that the second, third and fourth respondents would not be making a claim on the death benefit. Their positions were confirmed in the statutory declarations provided on 15 November 2021.
274.The first respondent submitted there was undue delay in the claim being referred to the Commission and the dependents have been without the benefit of the lump sum. The applicant has unduly delayed determination of the claim and the dependents should be entitled to interest in accordance with s 109 of the 1998 Act.
275.The first respondent gave notice of his intention to claim interest in the Reply filed on or about 7 April 2022. He submitted it was an appropriate case for interest to be ordered.
276.The first respondent submitted that interest should be payable from the date he put the applicant on notice of the claim, that being 25 February 2022. He seeks interest at the rate of 2.1% per annum from 25 February 2022 to 8 July 2022, an amount of $6,431.34. The figure of 2.1% is in accordance with the decision in McGrath v P.M. Electric Pty Ltd & Ors [2022] NSWPIC 263 (McGrath).
277.The first respondent also sought an order for costs, as agreed or assessed. He sought an uplift of 30%, in accordance with Table 4, Item 6, Schedule 6 of Workers Compensation Regulation 2010 [sic] due to the complexity of the matter and the number of respondents.

Fifth respondent

The fifth respondent submitted that he does not accept any dependency by the first respondent. He referred to the definition of “de facto partner” in section 21C of the Interpretation Act 1987, which sets out a number of matters.
The fifth respondent submitted that a lot of this is missing. There is no evidence the worker and the first respondent shared a bank account, were paying each other’s bills or sharing household duties. The circumstances might be referable to a boyfriend living part time with his girlfriend. There can be confusion between a series of sleepovers and being de facto.
The fifth respondent submitted there is no real evidence of commitment to a shared life or acquisition of property.
The fifth respondent referred to his evidence that the relationship was stormy, to say the least. There was very volatile language, with the worker demanding more than once that the first respondent leave. He submitted there was not evidence of a normal, healthy relationship, with ups and downs.
The fifth respondent submitted the “union” was about three years old. It was a boyfriend/girlfriend relationship that never found its way to anything else.
The fifth respondent submitted that there does not have to be evidence of a financial exchange between him and the worker and conceded there was no real evidence of this. He referred to the decision of Senior Member Capel, as he then was, in Youseph v Homebush Unit Trust t/as Primo Smallgoods [2021] NSWPIC 299 at [135] (Youseph) and the cases referred to in that matter, including TNT Group 4 Pty Limited v Halioris (1987) 3 NSWCCR 10; 8 NSWLR 486 (Halioris); and Richardson v Turfco Australia Pty Ltd [2016] NSWWCCPD 43 (Richardson).
The fifth respondent submitted that it was clear his relationship with the worker was strong.
It was a relationship like those referred to in Youseph and the Presidential decisions. He submitted the evidence of the other family members is irrelevant. They did not go on to say there was any financial commitment between the first respondent and the worker. He asked, “how would they know?”. All they can say is that they don’t know of any financial dependency, but that is not the test.
As regards the claim for interest, the fifth respondent could not point to anything other than to say it should be paid. His submission as to when it should commence was consistent with that of the first respondent.
The fifth respondent provided written submissions dated 30 June 2022. He repeated his oral submissions regarding financial dependency and reliance on the decisions in Youseph, Halioris and Richardson. He referred to his evidence regarding instances of dependency.
As regards the first respondent’s dependency, the fifth respondent again referred to s 21C of the Interpretation Act 1987. He submitted that the first respondent’s evidence is that the relationship commenced on 8 April 2018. He took up accommodation with the worker in January 2019. The relationship therefore lasted 142 weeks.
The fifth respondent submitted that the first respondent’s residence with the worker showed nothing more than the commitment of a house guest or tenant. There was no contribution to the mortgage, which was serviced by the worker alone.
The fifth respondent submitted that, apart from some miscellaneous cleaning, the first respondent did not participate in washing clothes. There was much disagreement between him and the deceased about household cleaning.
The fifth respondent referred to the worker’s tax return not having shown the first respondent as a spouse or de facto but showing her as a single person.
The fifth respondent referred to his evidence that the worker asked the first respondent to leave in 2020. He submitted there was no more than a boyfriend/girlfriend relationship. The offer by EML of condolences within two weeks of the worker’s death is of no weight because there is no evidence of the basis on which it assumed any relationship. The first respondent may have asserted his position without corroboration.
As regards the award of interest, the fifth respondent submitted it is discretionary. In Youseph, Senior Member Capel said the rate should be 2.5% per annum. With an increase of the [cash] rate by the Reserve Bank this year, it should be lifted to 3%.

Applicant

The applicant made no submissions on apportionment.
The applicant conceded that interest is payable. It submitted it should date from the last receipt of evidence, that is the statutory declarations of the worker’s parents on
15 November 2021.
The applicant submitted that the fifth respondent did not make any application for compensation until the Application was filed. This is an impediment to payment of interest, or in any event payment before 28 March 2022.
The applicant provided written submissions dated 19 July 2022.
The applicant conceded that interest on the sum of $834,200 is payable. It submitted the rate should be 2.1% per annum, in accordance with McGrath. It submitted interest should be payable from 25 February 2022 until 24 June 2022, when the arbitration took place.
The applicant submitted there is no basis to suggest interest is payable at 3%, due to the Reserve Bank’s recent decisions, considering interest payable in this matter is not in respect of the future, but the past.
Should the Commission determine that any part of the death benefit is payable to the fifth respondent, the applicant submitted any interest payable should be at the rate of 2.1% per annum from 11 May 2022, the date on which he filed the Reply, to 24 June 2022.

SUMMARY

Dependency

The applicant has made no submissions on the issue of dependency.
The first respondent maintains that he was dependent on the worker, and there were no other persons dependent on her at the date of her death.
The fifth respondent maintains that he was dependent on the worker, and there were no other persons dependent on her at the date of her death.
It is in my view undeniable that the first respondent’s relationship with BDA was somewhat turbulent. It may be an understatement to say it had its “ups and downs”. There is a suggestion of domestic violence, which the first respondent denies.
However, what I am required to determine is whether BAV was either partly or wholly dependent on BDA at the date of her death. I am not required to make subjective judgments about a relationship regarding which my knowledge is limited to the evidence before me, and which may at times have fallen short of ideal. It perhaps had that in common with most human relationships.
The evidence is that BAV and BDA established a relationship in April 2018. BCH agrees that they met at about that time.
BAV ’s evidence is that he moved into BDA’s house in or about January 2019 and had completely moved in by March 2019. That is not appreciably different from BCH’s evidence that it was in April 2019.
BDA added BAV to her Telstra account in January 2019, the discussion about his contribution took place in March 2019, and he made a payment to her of $150 on
27 March 2019. In any event, it is of limited relevance when the move took place. It is possible to establish dependency even if the parties were living separately.
Section 21C(3) of the Interpretation Act 1987 refers to matters “that are relevant in a particular case”, but also provides that no particular finding in relation to any of those matters is necessary in determining whether two persons have a relationship as a couple.
The evidence establishes that BAV and the worker agreed he would pay $150 for “rent” and he would also pay half the household bills. She was responsible for the mortgage. To that extent, he was partly dependent on her.
The fact that BAV and the worker kept separate bank accounts does not, in my view, mean there was no financial dependence or interdependence between them. Many couples may choose, for various reasons, not to hold joint bank accounts.
I do not regard it as significant that the worker, apparently, although her 2019 tax return is not legible in the documents before me, did not refer in it to a spouse or de facto. The evidence is that she and the first respondent began to live together in early 2019. I do not know when the tax return was completed, and in any event, it would be just one piece of evidence to consider.
The evidence establishes to my satisfaction that the first respondent and the worker shared household expenses. BAV ’s evidence is that they did not worry about money, and he usually paid for such expenses as meals other than those made at home, and expenses associated with their travel.
I do not believe it is relevant to the issue of dependency that the BBMvan was bought in
BAV ’s name, with his savings and a loan, or that the worker referred to it as “Gav’s BBMvan”. They clearly intended to use it for trips together, and they did so. Nor is it relevant in my view that the worker bought and paid for her own new car.
One of the matters referred to in s 21C(3) of the Interpretation Act 1987 is whether the two people in a relationship had a sexual relationship. There clearly was a sexual relationship between the worker and BAV . It was a source of some of the conflict between them.
The fifth respondent submitted that the relationship between the first respondent and the worker was like that of boyfriend/girlfriend, a series of sleepovers, or that his residence with her showed noting more than the commitment of a houseguest or tenant. I do not accept any of those characterisations of the relationship.
Once he moved in with the worker, the first respondent had no other home, unless one counts the BBMvan. His residence there did not involve a series of sleepovers. It was his home. He was not a house guest but was in a sexual relationship with the worker. His contribution of $150 per week, although he described it on his bank transfer as “rent”, did not convert his relationship with her to that of a tenant.
The Interpretation Act 1987 refers to the “ownership, use and acquisition of property”. The first respondent had the use of the property where he resided with the worker. They discussed, albeit by text, the purchase of furniture for the house, and a printer.
The first respondent has given evidence about the division of household duties. That appears to have been a source of some tension, which is not an unusual occurrence. The worker had at different times referred both to the “giant mess” he made and expressed her gratitude for everything he did around the house.
I do not believe it is relevant that the first respondent, according to the fifth respondent, had no interest in plants. BAV ’s evidence is that the worker loved plants and he helped her with them. The fact that he may not have shared her love for plants and did not help her on one occasion when she asked him, is in my view not relevant to the issues.
As for the degree of commitment to a shared life, there were many occasions when the relationship was said to be “over” or “done” or “not working”. Despite this, there is no evidence in the numerous text messages between BAV and BDA that they ever actually ended the relationship. Many of the messages that suggested they were going to break up were followed by affirmations of love, and the intention to maintain the relationship. BAV supported and encouraged the worker when she applied for a new position.
Another matter referred to in the Interpretation Act 1987 is the reputation and public aspects of the relationship.
BAV and BDA met each other’s families and friends. In November 2018, he agreed to attend her cousin’s wedding with her, and he did so in March 2019.
I do not place any weight on the fact that the wedding invitation is addressed to “BDA & Guest”, or that BDA’s cousin was not aware she was seeing BAV. BDA was able to invite a guest to the wedding, which was an event that extended family would be expected to attend. She chose to invite BAV. He would obviously be introduced to members of her family at that event.
In December 2018, the worker and BAV discussed the purchase of Christmas gifts and cards for family members. They approached this activity together.

While the fifth respondent had stated the worker did not want to invite BAV to her work Christmas party, she obviously did invite him, and he attended. She attended his Christmas party.
All the above matters were public aspects of the relationship between the worker and
BAV.
The fifth respondent’s evidence is that the relationship between the worker and the first respondent ended before her death. I do not accept that is the case. BDA may have told him it was her intention to end it, but the evidence does not establish that she did so.
There was obviously a serious falling out between the worker and BAV at Christmas 2020. His evidence is that they sorted it out. The worker understood that Christmas was hard for him. She picked him up and they had a long conversation. She was very understanding.
On 28 and 29 December 2020, BDA made arrangements for her and BAV to attend the walk on which she lost her life. She referred to him as her partner and asked about availability for two people. She mentioned walks they had done together, signing her email “BDA and BAV”.
BDA would hardly have arranged to participate in an activity with BAV if the relationship had ended. She also nominated him as her first emergency contact, before her sister and her mother. This is further evidence that the relationship was continuing.
BAV and BDA were clearly together at the home of her family members on New Year’s Eve 2020. The relationship had not ended at that stage.
Finally, the worker and BAV attended the walk together on 2 January 2021.
I place no weight on the fifth respondent’s evidence about the existence of a will. The worker may have told him she had a will, but none was found, and probate of the estate was granted on the basis of intestacy. The fifth respondent appears to be suggesting, albeit obliquely, that BAV disposed of the will. There is no evidence that one ever existed.
I also place no weight on the fifth respondent’s evidence that BAV offered no suggestions regarding BDA’s funeral, but “manage[d] to find the time to obtain legal representation”, that he searched for her superannuation fund, that he left the wake almost immediately, or that he went white water rafting some months after BDA’s death.
The first respondent was not required to meet some standard of behaviour that met with the fifth respondent’s approval after the worker’s death. The evidence is irrelevant to the issue of dependency.
I am satisfied on the evidence, to which I have referred above, that the first respondent was partly dependent on the worker at the date of her death. He was in a relationship with her at that time.
Much of the fifth respondent’s evidence is directed at attempting to establish that the first respondent was not dependent on the worker at the date of her death. It is irrelevant to the issue of his own claimed dependency.
The fifth respondent’s evidence establishes no more than, as the first respondent submitted, the usual sibling interdependence. He and the worker may have had a close relationship as children, which is hardly unusual.
The fifth respondent maintains that he and BDA confided in each other about various issues. Once again, that is an indicator of no more than a common aspect of a relationship between siblings. He states that he offered the worker financial assistance, but the fact is that this never occurred. Had it done so, it would, if anything, have tended to suggest that she was to some degree dependent on him.
The fifth respondent stated that the worker had offered him accommodation had his company obtained work in the Blue Mountains. That did not occur, and in my view, had it done so, would have been no more than a common occurrence in a family relationship.
The worker’s support of the fifth respondent during the breakdown of his relationship does not, in my view, establish that he was dependent on her. It is, again, a not uncommon occurrence in a sibling or other family relationship.
While the fifth respondent maintains that BBM looked on the worker as a mother figure, there is no evidence from BBM. It appears from the photograph attached to his statement that she is an adult, who would be capable of providing a statement. BAV ’s evidence is that he is aware of only two visits by BBM during his relationship with the worker.
I do not regard it as evidence of dependency that the worker cared for BBM during school holidays, or that she refused to accept money from BCH. Once again, it is a normal part of a family relationship that siblings may at times assist with childcare or pay for outings with children without expecting payment or reimbursement from their parents.
The fifth respondent referred to having lived with the worker during her “battle with breast cancer”. It appears from his evidence that they were both living with their parents. That arrangement ended in 2017, when the worker bought her own home. The fact that he and their parents supported her emotionally and by driving her to treatments does not establish dependency on his part, any more than it does on the part of her parents or his partner, who also apparently drove her to treatments.
The fifth respondent relies on the decision of Senior Member Capel in Youseph, and the decisions discussed in that matter.
Senior Member Capel said in Youseph that the term “support” is not limited to financial support, but encompasses other multifactorial aspects, including assistance with day-to-day activities and emotional support. He referred to the decisions in Warilla Timber and Hardware Pty Ltd v Newton (1995) 11 NSWCCR 546 (Newton); Albury Real Estate Pty Ltd v Rouse and anor [2006] NSWWCCPD 139 (Rouse); and Richardson.
Acting Deputy President Roche, as he then was, said in Rouse:
“Assessment of dependency is a question of fact for the Arbitrator (Affies v Kearney [1976] HCA 5; (1976) 180 CLR 199…In making that assessment the Arbitrator took into account the guidance provided by the Court of Appeal in [Newton] and also correctly took into account “past happenings and future probabilities” (Jeffrey v Commissioner for GovernmentTransport [1957] SR (NSW) 634…”
It is significant that, in Halioris, McHugh JA stated:
“Dependency is a question of fact…It is concerned with actual and not theoretical support. A person claiming dependency need not be in actual receipt of support at the date of death. It is enough that, as at that date, he or she had a reasonable expectation of support in the future. Dependency may exist at the date of death although actual support cannot or is unlikely to occur until a future time.”
In Youseph, Senior Member Capel found that the weight of the evidence showed that the claimants, three of whom were the worker’s adult children, and one of whom was his brother, were partly dependent on the worker for “emotional and fatherly support”. That was a decision made on the basis of the factual situation and the evidence before him.
The claimants’ evidence in Youseph was that they had kept in contact with the worker, in the case of his youngest son, that contact being somewhat curtailed because he became mentally unwell. Senior Member Capel referred in his decision to texts and emails between the worker and his family.
Despite the numerous text messages placed in evidence in this matter, there is none between the worker and BCH, or the worker and BBM; and no messages on Facebook or other social media.
I accept that the term “support” encompasses, for example, assistance with day-to-day activities and emotional support. However, I do not accept that the evidence adduced by the fifth respondent establishes that he relied on the worker for either day-to-day assistance or emotional support. As I have noted, the “support” provided by the worker was no more than would usually be expected in a healthy and supportive sibling relationship.
I therefore determine that there was no person other than the first respondent who was dependent on the worker.

Interest

The applicant concedes that interest is payable on the lump sum. It is accordingly unnecessary that I exercise my discretion to determine whether interest should be awarded. It is only necessary that I determine the rate of interest and the period during which it should be paid.
In the matter of Kaur v Thales Underwater Systems Pty Ltd [2011] NSWWCCPD 6, his Honour President Keating said 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.”
The phrase “duly made” has been held to mean “fully particularised”. It was applied in Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited [2020] NSWWCC in which Arbitrator Isaksen, as he then was, referred to the decision of Arbitrator Wynyard, as he then was, in Shanika Cooper v G & W Mudgee Concreting Pty Ltd & Ors (WCC6411/18) and his own decision in Lavelle v BCH Paul Browne & Ors (WCC533/19), in which he agreed with Arbitrator Wynyard’s approach. Arbitrator Wynyard took a similar approach in the recent decision of Mudgee Explorer Tours Pty Ltd v Clarke [2021] NSWPIC 41.
The first respondent submitted that the applicant had sufficient evidence to confirm his dependency when his statement was provided on 5 July 2021. However, he submitted that interest should be payable from the date that he put the applicant on notice of the claim for interest, that is, from 25 February 2022 to 8 July 2022 (the date of his written submissions).
The first respondent submitted that the rate of interest should be 2.1% per annum, relying on my decision in McGrath. It should be noted that the applicant in McGrath has filed an appeal.
The applicant firstly submitted that the claim for interest should date from the last receipt of evidence, that is, the statutory declarations of BBJ and BCG, on 15 November 2021. I assume from what the applicant has submitted in respect of the fifth respondent’s claim that this submission is directed to the first respondent’s claim for interest.
The applicant then submitted that interest should be payable from 25 February 2022 (in which it agrees with the first respondent) to 24 June 2022, when the arbitration took place, at 2.1% per annum.
The parties are therefore in agreement that interest on the lump sum should be payable from 25 February 2022 at the rate of 2.1%. They disagree on the date to which it should be paid, but the difference is a matter of two weeks.
In the exercise of my discretion, I determine that the appropriate date to which interest should be paid is 8 July 2022, when the first respondent provided his written submissions, given that the matter was not concluded on 24 June 2022.
The applicant is therefore to pay interest on the lump sum at the rate of 2.1% per annum from 25 February 2022 to 8 July 2022.

Costs

As BDA was a police officer, and therefore an exempt worker, the first respondent having succeeded in his claim, is entitled to his costs of the proceedings. He has submitted that his costs should be increased by 30%, due to complexity and the number of respondents.
The applicable regulation is now Workers Compensation Regulation 2016. The appropriate item for an increase in costs due to complexity is Schedule 6, Table 4, Item 5. The upper limit for an increase in costs is 45%.
There is also provision in Schedule 6, Table 4, Item 6 for an increase in costs associated with multiple respondents. The upper limit is 30%. It does not apply if costs are increased for complexity.
This is a matter in which liability was accepted by the applicant. It was therefore necessary only that the first respondent establish his dependency and the amount of compensation to which he may be entitled. It was made more complex by the fifth respondent’s claim, and the evidence he adduced attempting to establish that the first respondent was not dependent on the worker. The first respondent filed further evidence in response to this evidence.
The applicant was required to review the additional evidence to ascertain whether it was necessary to respond. It was also necessary for all parties to provide written submissions, due to the time taken in conciliation and at the arbitration hearing.
In the exercise of my discretion, I believe it is appropriate to increase the costs of the first respondent and the applicant by 20%.
The findings and orders are set out in the Certificate of Determination.

[2022] NSWPIC 499

16 August 2022