The Estate of the Late Marc Sibille v Inn Hospitality Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	The Estate of the Late Marc Sibille v Inn Hospitality Pty Limited & Ors [2023] NSWPIC 91
APPLICANT:	The Estate of the Late Marc Sibille
FIRST RESPONDENT:	Inn Hospitality Pty Limited
second respondent	Magali Sibille
Member:	Rachel Homan
DATE OF DECISION:	7 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act1987; application for lump sum death benefit; identification of dependants; emotional dependence; application for discretionary interest; when claim duly made; appropriate rate of interest; funeral expenses; Held – liability to pay compensation conceded; the deceased worker died leaving no dependants; orders for payment of the lump sum pursuant to section 25(1)(a) to legal personal representative; award for discretionary interest from date full particulars of dependants provided at 2% above Reserve Bank of Australia cash rate.
determinations made:	The Commission determines: 1. The deceased worker, Marc Georges Jean Ghislain Sibille, died on 23 June 2019 as a result of an injury arising out of his employment with the respondent. 2. There were no dependants of the deceased worker who were wholly or partly dependent for support upon the deceased worker at the date of death. 3. The lump sum death benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 is $810,050. The Commission orders: 1. The first respondent to pay $810,050 to the applicant pursuant to ss 25(1)(a), 32 and 85A(1)(a) of the Workers Compensation Act 1987. 2. Pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, the respondent to pay the applicant interest on the lump sum death benefit as follows: (a) from 30 November 2022 to 6 December 2022 at the rate of 4.85% per annum; (b) from 7 December 2022 to 7 February 2023 at the rate of 5.10% per annum, and (c) from 8 February 2023 to the date of this Certificate of Determination at the rate of 5.35% per annum. 3. Pursuant to s 26 of the Workers Compensation Act 1987, the first respondent to pay compensation equal to reasonable funeral expenses not exceeding $15,000, upon production of accounts and/or receipts.

STATEMENT OF REASONS

BACKGROUND

Mr Marc Georges Jean Ghislain Sibille (the deceased worker) died as a result of an injury arising out of his employment with Inn Hospitality Pty Limited (the respondent) on
23 June 2019. The deceased worker was 57 years old at the time of his death.
A Fatality Notification Form was completed on 4 December 2020 and a claim for death benefits forwarded on behalf of the deceased worker’s daughter, Ms Magali Sibille on
8 December 2020.
On 16 March 2022, liability to pay compensation in respect of the death was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The deceased worker’s estate (the applicant) lodged an Application in Respect of Death of Worker (the Application) in the Personal Injury Commission (the Commission) on
4 October 2022.
The Application seeks orders for payment of the lump sum death benefit pursuant to s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act), funeral expenses under
s 26 of the 1987 Act and transportation expenses pursuant to s 28 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

At a preliminary conference on 10 November 2022, Ms Sibille (the second respondent) was joined to the proceedings as second respondent. Directions were also made for the service and lodgement of an amended Reply by the second respondent and evidence of attempts to contact any other member of the deceased worker’s family who may have been dependent on him for support.
An application was made for discretionary interest on the lump sum pursuant to s 109 of the 1998 Act.
The parties appeared for further conference on 14 December 2022. On that occasion, the first respondent informed me that liability to pay compensation in respect of the deceased worker’s death had been accepted.
The parties agreed on a timetable for written submissions with respect to the outstanding issues and were informed of the Commission’s intention to determine the matter at the conclusion of that timetable.

ISSUES FOR DETERMINATION

The parties agree that the following matters require determination:

(a) the identification of any dependants who were wholly or partly dependent for support on the worker at the time of his death;
(b) orders for payment of the lump sum death benefit pursuant to s 25(1)(a) of the 1987 Act;
(c) orders for the payment of funeral expenses pursuant to s 26 of the 1987 Act;
(d) the entitlement to transportation expenses pursuant to s 28 of the 1987 Act, and
(e) whether orders should be made for the payment of discretionary interest pursuant to s 109 of the 1998 Act, including the rate and period(s) for which discretionary interest ought to be paid.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application in Respect of Death of Worker and attached documents;
(b)    Reply lodged on behalf of the first respondent and attached documents;
(c)    Amended Reply lodged on behalf of the second respondent and attached documents;
(d)    documents attached to an Application to Admit Late Documents lodged by the applicant on 30 November 2022;
(e)    documents attached to an Application to Admit Late Documents lodged by the applicant on 15 December 2022;
(f)    documents attached to an Application to Admit Late Documents lodged by the first respondent on 22 December 2022;
(g)    written submissions lodged by the applicant on 20 January 2023;
(h)    written submissions lodged by the second respondent on 27 January 2023;
(i)    written submissions lodged by the first respondent on 13 February 2023;
(j)    written submissions in reply lodged by the applicant on 17 February 2023; and
(k)    written submissions in reply lodged by the second respondent on
17 February 2023.

FINDINGS AND REASONS

Dependants

The term, ‘dependants’ is defined in s 4 of the 1998 Act as:
“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.”
The evidence before the Commission includes a New South Wales Death Certificate for the deceased worker. According to the certificate, the deceased worker was married to Muriel Francois and had one child, the second respondent. The deceased worker’s parents, Emma Louise Ghislaine Mottiaux and Jean Louis Ghislain Sibille, were also identified in the certificate.
A note left by the deceased worker prior to his death identified and provided contact details for a brother, Pol Sibille.
In a statutory declaration attached to the Application, dated 28 July 2021, the second respondent gave evidence that the deceased worker was not married at the time of his death and was not in a de facto relationship at the time of his death. The second respondent was the deceased worker’s only child. The deceased worker’s mother was still alive. The second respondent said she was unaware of any dependants.
An affidavit prepared by Brian Hillman, the second respondent’s attorney, in connection with an application for letters of administration, dated 22 January 2020, indicates that the deceased was divorced from Muriel Francois on 11 August 2006.
An affidavit prepared by a close friend of the deceased worker, Rosano Tobias Martinez, on 24 June 2020, confirmed that the deceased worker was single and living on his own at the time of his death.
Attached to the Application to Admit Late Documents lodged by the applicant on
30 November 2022 were translated statements from the deceased worker’s mother and three siblings, Pol, Andre and Anne Sibille.
Each of these relatives confirmed their relationship to the deceased worker and indicated that they had been advised of the claim for compensation in respect of the death, the availability of free, independent legal assistance and the entitlement of those members of the deceased worker’s family as were wholly or in part dependent for support upon him at the time of his death to claim a portion of the lump sum death benefit.
Each of these relatives indicated that they were not dependent upon the deceased worker and did not wish to make a claim for the death benefit.
Each of the relatives indicated that the second respondent was the only family member who had any real contact with the deceased worker following his move to Australia. Each of the family members indicated that they were not aware of the existence of any members of the deceased worker’s family who were wholly or in part dependent for support upon the deceased worker apart from the connection between the second respondent and the deceased worker.
On the basis of this evidence, I am satisfied that the only member of the deceased worker’s family who may have been wholly or in part dependent for support upon the deceased worker is the second respondent.
It is necessary to consider the nature of the second respondent’s dependence upon the deceased worker.
In TNT Group 4 Pty Limited v Halioris (1987) 3 NSWCCR 10; 8 NSWLR 486, McHugh JA stated (at [489]):
“Dependency is a question of fact: Potts v Niddre & Benhar Coal Co Ltd [1913] AC 531 at 539, 542; Aafjes v Kearney (1976) 50 ALJR 454 at 456, 457 and 459. 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 Richardson v Turfco Australia Pty Ltd [2016] NSWWCCPD 43 (Richardson), Keating J summarised a number of general statements of principle for determining dependency which had been relied on by the appellant in those proceedings [65]:
“(a)    dependency is not limited to the class of persons actually in receipt of financial assistance (Sadiq);
(b)     dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased (Amaca Pty Ltd v Novek [2009] NSWCA 50);
(c)     although dependency is not limited to financial dependency, it does involve one person being beholden to another for some material or physical help or succour, emotional dependency is not enough (Skinner);
(d)     ‘dependent’ in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed (Petrohilos);
(e)     a mother’s services to a young child may satisfy the test of dependency. To suggest that, in a money sense they are valueless, is simply wrong (Petrohilos);
(f)      while one of the commonest forms of dependence might be financial dependence, the word used in the statute (which I infer is the Conveyancing Act 1919) is not limited to financial dependence (Williams), and
(g)     the word ‘partly’ in the phrase ‘partly dependent’, whilst a word of ‘some elasticity’, does not mean ‘substantially’, but means ‘more than minimally’, or perhaps, ‘significantly’ (Bremner v Graham [2016] NSWSC 633 at [34] citing Priestley JA at [4] (with whom Hope AJA agreed) in McKenzie v Baddeley [1991] NSWCA 197) (McKenzie)). Meagher JA, in McKenzie at [6], commented that ‘[c]ommon sense requires that certain trivial activities should be disregarded’.”
In her statutory declaration dated 28 July 2021, the second respondent gave evidence that she was not supported by her father financially in any way at the time of his death.
The second respondent prepared a further statement on 10 June 2022 in which she stated that she grew up with her father and mother in Belgium. In 2004, the deceased worker travelled to Australia for work. Although it had been intended that the second respondent and her mother would join him, that plan did not eventuate. The second respondent’s parents divorced in 2006. The second respondent visited the deceased worker in Australia on two occasions for four weeks, in July 2005 and July 2008.
Despite the geographic distance between them, the second respondent remained very close to the deceased worker. They maintained regular contact via Skype or Messenger. The second respondent described her father as an important emotional support figure and confided in him regarding her private life, work and plans for the future. The deceased worker supported the applicant in her projects and always had the right words to support her through difficult periods.
The second respondent said that the deceased worker sent her money for occasions such as birthdays as well as postcards. The year before his death, the deceased worker sent her a smartwatch and a ring. The deceased worker had previously sent a child support pension to the second respondent’s mother.
In July 2018, the second respondent suggested to the deceased worker that he come and settle with her Belgium. The second respondent was building a house with a granny flat in which the deceased worker could reside. The second respondent had also intended to travel to Australia to see the deceased worker before his death.

Submissions

In its written submissions, lodged on 20 January 2023, the applicant made no submission relative to issue of dependency other than to observe that dependency need extend no further than an expectation of support.
In her written submissions, lodged on 27 January 2023, the second respondent noted that her written statements had been prepared with the assistance of an interpreter. The second respondent referred to the relevant authorities and submitted that dependency might exist even if the person claiming dependency is not in receipt of regular financial support at the date of the worker's death. Future likely events ought to be considered. The second respondent submitted:
“It appears that the second respondent and the deceased had only each other as family. There was a special bond heavily dependent on moral and emotional support with the exchange of gifts and money where it was possible. As parent and child, there was a mutual obligation between the two and the second respondent had an expectation of support from her father.
On this basis, it is submitted that the second respondent says she was partly dependent for support on the deceased.”
In its written submissions lodged on 13 February 2023, the first respondent submitted that the second respondent had failed to establish that she was partly or wholly dependent on the deceased worker. It was submitted that the lump sum death benefit was payable to the estate.
The first respondent noted that the second respondent had conceded that she was not financially dependent upon the deceased worker. Although the second respondent had given evidence that she and the deceased worker were in regular contact, there was scant evidence to bear out that claim. The statements from the other relatives gave no evidence about the nature of the relationship between the second respondent on the deceased worker other than to indicate that they remained in contact and had a “connection”. The first respondent submitted,
“…the most reasonable view of the evidence is that while the Second Respondent undoubtedly had a relationship with her late father, the evidence available to the Commission falls short of establishing that the Second Respondent relied upon the deceased for emotional support and dependence to a degree that would enliven the provisions relevant to this claim.”
In submissions in reply, the second respondent said there was no need for corroborative evidence from the deceased worker’s other relatives in circumstances where they were not or could not be privy to the level of engagement between the second respondent and the deceased.
The applicant adopted the second respondent’s submissions in its submissions in reply.

Consideration

The evidence before me indicates that although the second respondent and the deceased worker did not live in the same country after 2004 and had not seen each other in person since 2008, they did maintain a father daughter relationship.
Evidence has been provided of electronic communications between the second respondent and her father, although it is not possible to determine from the material provided the extent or frequency of such contact. I also accept the second respondent’s evidence that she and her father exchanged gifts of money and other presents on special occasions such as birthdays.
The applicant has indicated that child support was paid by the deceased worker to the second respondent’s mother. The second respondent was, however, 25 years old at the time of the deceased worker’s death and there is no indication of the extent or duration of any child support payments. The second respondent has specifically disavowed any financial dependence upon the deceased worker at the time of his death.
The second respondent submits that she relied upon the deceased worker for emotional and moral support. The second respondent also submits that there was a mutual obligation between parent and child and the second respondent had an expectation of future support from her father.
I accept the parties’ submissions that it is not necessary that the second respondent establish that she was financially dependent upon the deceased worker at the time of his death.
In Richardson, Keating J referred to a number of authorities in which it was found that general maintenance work and sundry services performed by a deceased worker were relevant in determining whether a family member was dependent for support. Judge Keating’s comments indicated that the provision of practical physical support may be sufficient to establish dependency, whether or not other persons were capable of providing such assistance and irrespective of whether that assistance obviated the need to expend money on the provision of those services. In one of the cases to which Keating J referred, Abraham Seda Ghati v Sayan & Ors,[1] O’Grady DP commented:
“The entitlement of dependants in New South Wales to compensation benefits in the case of death of a worker has, since amendments in 1964 to the then relevant statute, the Workers Compensation Act 1926 (‘the 1926 Act’), been founded upon proof of dependency for support. Prior to that amendment, the former Act required proof of dependency upon earnings. The consequences of that amendment were considered by Ferrari J in Cooper v Commissioner for Railways [1972] WCR 47 (‘Cooper’) where it was stated (at 48 and 49):
‘It appears to me that the effect of the substitution of dependency for support in place of dependent upon earnings is to extend the right to compensation so as to encompass dependants of the deceased who drew their support from him but out of sources other than his earnings’.
Having regard to what was said in Cooper I am of the view that it is appropriate in this matter, when considering the existence or otherwise of dependency and whether such is total (whole) or partial, that account should be taken of that evidence concerning the performance by the deceased of sundry services about the home as well as that evidence which suggests that some support was afforded by the pooling of the deceased’s pension income with that of Ms Sayan.”
[1] [2010] NSWWCCPD 74.
In Skinner v Frappell[2], Basten JA considered the meaning of the term “dependent” in the context of the Family Provision Act 1982:
“Although dependency is not limited to financial dependency, it does involve one person being beholden to another person for some material or physical help or succour, emotional dependency is not enough. I have already set out the evidence as to how the appellant merely spent a week of his Christmas holidays for about four years and exchanged intermittent birthday and Christmas cards. That was not enough to show dependency as the trial judge well held.”
[2] [2008] NSWCA 296.

Applying the authorities above, I find that while it is not necessary for the second respondent to establish financial dependence upon the deceased worker, the mere existence of a relationship between the second respondent and the deceased worker and the fact that the second respondent derived emotional and moral support from that relationship is not sufficient to establish that the second respondent was “dependent for support” upon the deceased worker.
Contrary to the second respondent’s submissions, I do not accept that the deceased worker was her only family member. The evidence establishes that the second respondent maintained a relationship with her mother. Her statement evidence also referred to building a home with her “partner”. Further details of the second respondent’s domestic situation have not been provided.
I note the evidence of the deceased worker’s siblings was that they were aware that the second respondent had “contact” with the deceased worker. While not determinative of the claim, this witness evidence is not corroborative of a relationship of dependence between the second respondent and deceased worker. I am not satisfied that the second respondent was “heavily dependent on moral and emotional support” from the deceased worker as indicated by the second respondent’s submissions.
There is no evidence of any practical or material service or assistance having been rendered to the second respondent by the deceased worker for a substantial period of time prior to his death. The second respondent and the deceased worker had lived in different countries for a period of some 15 years prior to his death and had not seen each other in person for more than 10 years.
I have also considered the submission that there was an expectation of future support having regard to the parent-child relationship.
I accept that the second respondent may have raised the possibility of the deceased worker moving back to Belgium to live with her or the second respondent coming to visit the deceased worker in Australia. I am not satisfied on the evidence, however, that these were anything other than transient ideas or that any actual planning for such possibilities had taken place.
Having regard to the nature of the second respondent’s relationship with the deceased worker in the period of 15 years prior to his death, her age, circumstances and all the evidence before me, I am not satisfied that there was an actual expectation of future dependence for support.
I am not satisfied that the second respondent was wholly or in part dependent upon the deceased worker for support.
I find that the deceased worker died leaving no dependants. Compensation payable in respect of the deceased worker’s death is to be paid to the deceased worker’s legal personal representative.

Lump sum death benefit

The respondent is liable to pay a lump sum death benefit in accordance with s 25(1)(a) of the 1987 Act. The amount payable as the date of the deceased worker’s death was $810,050.
There will be an order for the respondent to pay the lump sum death benefit of $810,050 to the applicant. The parties will have liberty to apply should there be any dispute with regard to the identity of the legal personal representative for the purposes of payment.

Funeral and transportation expenses

Section 26 of the 1987 Act provides;
“If compensation is payable under this Division for a death resulting from an injury, the employer must pay additional compensation equal to reasonable funeral expenses not exceeding $15,000 or such other amount as may be prescribed by the regulations.”
Section 28 of the 1987 Act provides:
“If compensation is payable under this Division and the usual place of residence of the worker was, at the time of the worker’s death, in Australia, the employer shall pay additional compensation equal to the reasonable cost of transporting the body of the worker to—
(a) what would, in the circumstances, be an appropriate place for its preparation for burial or cremation, or
(b) that usual place of residence,
whichever is the lesser cost.”
The evidence in this case indicates that the deceased worker’s usual place of residence was in Australia. Although invoices establish that his body was transported to Belgium for burial or cremation, the costs associated with that would clearly exceed the cost of transportation of the body to his usual place of residence. I am not persuaded there should be any order pursuant to s 28 of the 1987 Act.
The applicant has in written submissions noted that the costs of repatriation of the deceased worker’s body and his funeral were borne by his brother, Andre Sibille. The applicant submits that in order for the funeral to be conducted it was necessary for the body be returned to Belgium such that the overall amount of $15,000 allowed under s 26 would reasonably include the costs of the funeral/internment/cremation as well as the repatriation cost.
This submission was not addressed by the first respondent or the second respondent. Nor is there evidence before me as to a notified dispute with regard to this expense.
In the circumstances, I find the appropriate course is to make a general order pursuant to
s 26 of the 1987 Act for the reimbursement of reasonable funeral expenses not exceeding $15,000 upon production of appropriate accounts or receipts.
Should any dispute arise as to what constitutes “reasonable funeral expenses”, the parties would be at liberty to commence further proceedings in the Commission for resolution of that dispute.

Interest

The remaining issue in contention is whether orders should be made in the Commission’s discretion for payment of interest on the lump sum death benefit and, if so, over what period and at what rate.
Section 109 of the 1998 Act provides:
“109   Interest before order for payment (cf former s 113)
(1)    In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.
(2)    Interest cannot be ordered under this section:
(a)on any compensation payable under Division 4 of Part 3 of the 1987 Act, or
(b)   on any compensation payable under this Act for any period before a claim for the compensation was duly made, or
(c)on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102.
(3)    This section does not:
(a)authorise the giving of interest upon interest, or
(b)apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.”
In Kaur v Thales Underwater Systems Pty Ltd[3] (Kaur), President Keating J stated at [139]:
“Section 109(2)(b) of the 1998 Act prohibits interest on any award of compensation payable under the Act for any period before a claim for the compensation was duly made. I accept the submission that the claim for compensation on behalf of the appellants was not duly made until the day of the arbitration. I therefore accept Thales’s submission that, as at the arbitration, the appellants could not be entitled to interest pursuant to s 109 of the 1998 Act.”
[3] [2011] NSWWCCPD 6 at [139].
In Brambles Australia Ltd t/as Gardner Perrott Industrial Services v Hamilton & Monier Ltd[4] Harrington ADP at [43] stated that an exercise of the discretion to order interest would depend on the evidence before the Commission, and relevant evidence may include reasons for a delay in the determination of the claim.
[4] [2006] NSWWCCPD 169.
In Pheeney v Doolan (No. 2)[5] the Court of Appeal said of the interest provision:
“It provides an ancillary power akin to an order for costs, and its purpose is to aid the court to do more complete justice between the parties that is otherwise possible … It is not designed to compensate a plaintiff for loss arising out of the cause of action, but to provide compensation where it is otherwise appropriate to do so for the circumstance that a sum of money has been outstanding to him for a period of time.”
[5] [1977] 1 NSWLR 601.

Applicant’s submissions

The applicant submitted that there had been a dispute from the date of the worker’s passing as to the employer’s obligation to pay out the death benefit to either an identified dependant or the deceased’s estate. In circumstances where the employer had retained monies to which it was not entitled, the benefit of retention of those monies (i.e. interest earned) should flow to the dependants or the estate.
The applicant submitted that the legislation no longer required a level of dependency to be established in order for the death benefit to be paid. To suggest that the provisions of full particulars of the extent of dependency was a necessary precondition of entitlement to interest was misconceived. The legislation spoke of ‘a’ claim being duly made.
The applicant submitted that an award of interest award should run from the date of the second respondent’s claim for the death benefit being 8 December 2020 or at the latest the date of the s 78 notice being 16 March 2022.
The applicant submitted that the appropriate rate to be applied should reflect the Supreme Court rates and recent economic circumstances. It was submitted that the Commission should not develop its own approach on matters such as the award of interest, which are not unique to its jurisdiction. A rate in the order of 6% ought to be applied.

First respondent’s submissions

The first respondent submitted that, assuming that the second respondent was not partly or wholly dependent on the deceased, the Commission should elect not to award interest to the applicant. The deceased worker’s estate was the aggregate of his assets but not a person who had been disadvantaged as a result of the delay in payment of the lump sum.
Insofar as an order might be made for payment of the lump sum to the second respondent, interest could only be ordered after a claim was duly made. The first respondent submitted that “duly made” means more than “made”, and that the authorities are consistent with that requirement. Generally, the full particularisation of the claim is regarded as occurring when any relevant dependant has given sufficient evidence of their dependence. In this case, the evidence of the second respondent’s dependence was filed in the proceedings on
15 December 2022.
As for the rate of interest, the first respondent submitted that the practice has developed in the Commission to award interest, where applicable, at a rate which is 2% per annum above the Reserve Bank of Australia cash rate.

Second respondent’s submissions

The second respondent concurred with the applicant’s submissions with regard to interest, noting that the first respondent should have been enlivened as to the fact that this was a compensable injury causing death at an earlier point in time.

Consideration

The discretion to award interest is subject to the limitations set out in ss 109(2) and (3). Relevantly, subsection (2)(b) provides that interest cannot be ordered on any compensation payable for any period before a claim for the compensation was “duly made”.
The approach advocated by the applicant and second respondent is not consistent with that taken in a substantial number of decisions at the arbitral level.[6] I am not persuaded by their submissions to depart from that approach.
[6] See, for example, Cooper v G & W Mudge Concreting Pty Ltd & Ors (6411/18); Lavelle v Browne & Ors (533/19); Alexander v J B Cullinan and N N Cullinan & Ors (4832/20); Lindsay v City Clean Payroll Pty Ltd (6364/20); A1 Arbor Tree Service Pty Ltd v Matai & Ors (2123/20); Mudgee Explorer Tours Pty Ltd v Clarke [2021] NSWPIC 41 (Clarke); and Youseph v Homebush Unit Trust t/as Primo Smallgoods [2021] NSWPIC 299.
Section 260 of the 1998 Act provides that a claim for compensation must be made in accordance with the Workers Compensation Guidelines (the Guidelines). In respect of claims for payments in the event of death, the Guidelines note, amongst other things, that in order to pay compensation an insurer must determine whether there are any dependants who are eligible for the lump sum death benefit and how the benefit should be apportioned. Anyone who believes they are dependent must supply enough information for the insurer to determine if they meet the legal definition of a dependant.
In this case, it was not until lodgement of the Application to Admit Late Documents by the applicant on 30 November 2022, attaching statements from the deceased worker’s mother and three siblings, that the applicant’s claim to the death benefit was fully particularised. Until that date, not all potential dependants had been identified. While further evidence in support the second respondent’s claim was provided at a later date, a statutory declaration made by her had in fact been attached to the Application.
In these circumstances, I am not satisfied that a claim was fully particularised and thereby “duly made” until 30 November 2022.
I have considered the first respondent’s submission that the Commission should not exercise its discretion to award interest should it be determined that the lump sum death benefit is payable to the applicant. I accept, however, the applicant’s submission in response that the first respondent’s submission ignores the fact that the beneficiaries of the estate have been deprived of the benefit of the lump sum.
I am satisfied that it is appropriate in this case to exercise my discretion to award interest. The award for interest will date from 30 November 2022.
Section 109(1) provides that the Commission may order interest at such a rate as it thinks fit. Although I have taken into account the applicant’s submissions as to the appropriate rate, the approach of the Commission has been to award interest at a rate consistent with recent rates of interest. I accept the first respondent’s submission that an appropriate rate of interest is 2% above the Reserve Bank of Australia cash rate for the relevant period.[7]
[7] This is consistent with the approach taken in several recent matters, including Zona Coatings; Cassegrain Tea Tree Oil Pty Ltd v BBS & Ors [2022] NSWPIC 590; and BFG v Polyfoam (Sydney) Pty Ltd & Ors [2022] NSWPIC 724.
I determine that interest is to be paid on the lump sum death benefit payable to the applicant from 30 November 2022 to the date of this Certificate of Determination at the following rates:
(a)    from 30 November 2022 to 6 December 2022 at the rate of 4.85% per annum;
(b)    from 7 December 2022 to 7 February 2023 at the rate of 5.10% per annum, and
(c)    from 8 February 2023 to the date of this Certificate of Determination at the rate of 5.35% per annum.

[2023] NSWPIC 91

7 March 2023