Z Services Australia Pty Ltd v Gouveia
[2023] NSWPIC 304
•28 June 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Z Services Australia Pty Ltd v Gouveia & Ors [2023] NSWPIC 304 |
| APPLICANT: | Z Services Australia Pty Ltd |
| FIRST RESPONDENT: | Alisha Gouveia |
| SECOND RESPONDENT: | BFW |
| THIRD RESPONDENT: | BGT |
| senior Member: | Kerry Haddock |
| DATE OF DECISION: | 28 June 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim for interest on lump sum death benefit pursuant to section 109; parties agreed on date claims were “duly made” and rate of interest; Held – applicant to pay interest on the lump sum death benefit as agreed, to be paid pro-rata; interest payable to second and third respondents to be paid to NSW Trustee and Guardian; applicant to pay fees for investing or managing sums paid to NSW Trustee and Guardian on behalf of second and third respondents, pursuant to section 25(1A) of the Workers Compensation Act 1987. |
| determinations made: | 1. The applicant is to pay interest on the lump sum death benefit, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, in the amount of $6,516.06, apportioned pro rata between the respondents. 2. The interest apportioned to the second respondent is to be paid to the NSW Trustee and Guardian, to be held on trust for her until she attains the age of 18 years. 3. The applicant is to pay, pursuant to s 25(1A) of the Workers Compensation Act 1987, the fees concerning investing or otherwise managing the sum paid to the NSW Trustee and Guardian on behalf of the second respondent. 4. The interest apportioned to the third respondent is to be paid to the NSW Trustee and Guardian, to be held on trust for her until she attains the age of 18 years. 5. The applicant is to pay, pursuant to s 25(1A) of the Workers Compensation Act 1987, the fees concerning investing or otherwise managing the sum paid to the NSW Trustee and Guardian on behalf of the third respondent. |
STATEMENT OF REASONS
BACKGROUND
The worker, Nelson Miguel Gouveia, died on 5 May 2022, as a result of injury on
9 November 2015, arising out of or in the course of employment with the applicant, Z Services Australia Pty Ltd.The first respondent, Alisha Gouveia, is the worker’s widow. The second and third respondents, to whom I will refer by their given names, while meaning no disrespect, BFW and BGT, are the children of the marriage.
The respondents have made a claim pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act) for the lump sum death benefit of $862,350. A claim was also made for weekly benefits in respect of the children, and for funeral expenses, pursuant to s 26 of the Act.
The applicant has accepted liability for the claim.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) whether the respondents are entitled to payment of interest on the lump sum; and if so, the period during which, and the rate at which, interest is payable.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)
The matter was listed for preliminary conference before me on 1 June 2023. Mr Studdert appeared for the applicant, instructed by Ms Morgan of GIO and Ms Dean of iCare; Mr Horan of counsel appeared for the first respondent, instructed by Ms Walsh; Mr Stanton of counsel appeared for the second respondent, instructed by Ms Lanyon; and Mr Gaitanis of counsel appeared for the third respondent, instructed by Ms Davis. Mr Simes and Mr Gouveia, who are the uncles of the second and third respondents, also attended.
The parties were able to agree on a proposed apportionment of the lump sum. I was satisfied that the proposal was appropriate, noting that all three respondents were represented by experienced counsel, and Mr Simes and Mr Gouveia were present on behalf of BFW and BGT.
Consent findings and orders were accordingly made on 1 June 2023.
A claim for interest on the lump sum was sought to be made at the preliminary conference, and the respondents were granted leave to make that claim.
It was agreed that the parties would provide written submissions on the issue of interest, and Mr Horan would make the submissions on behalf of all three respondents. Mr Horan advised that he would not need to make submissions in reply to the applicant.
A timetable was set for the provision of written submissions, which have now been received. The parties were advised that, at the conclusion of the time allowed for submissions, the claim for interest would be determined “on the papers”.
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) Application in Respect of Death of Worker and attached documents;
(b) Reply by first respondent and attached documents;
(c) Reply by second respondent and attached documents;
(d) Reply by third respondent and attached documents, and
(e) Application to Admit Late Documents dated 31 May 2023, filed by the third respondent, and attached documents.
Oral evidence
There was no application to call oral evidence or cross-examine any witness.
FINDINGS AND REASONS
Evidence
In view of the previous consent orders and the narrow focus of the remaining issue, it is unnecessary that I discuss the evidence.
SUBMISSIONS
As written submissions have been provided, I will summarise them only briefly.
Respondents
The respondents submitted that interest is governed by s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The Commission’s jurisdiction to award interest is discretionary. It is not a penalty. Apportionment was in issue and the employer “presumably” deposited the lump sum in an interest-bearing account. It therefore had the benefit of the funds.
The respondents referred to my decision in AFF Properties Pty Ltd v Robovich & Ors.[1]
[1] [2023] NSWPIC 41.
The respondents submitted that interest should be awarded, at the rate of 2% above the Reserve Bank of Australia (RBA) cash rate, from the date their Replies were served, as the date the claim was “duly made”. The Replies were served on 12 April 2023, 13 April 2023, and 14 April 2023.
The respondents therefore submitted that the total amount of interest is $6,516.05, to be apportioned pro rata between them.
Applicant
The applicant agreed with the respondents’ submissions, and that the amount payable, adopting this approach, is $6,516.05.
SUMMARY
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.”
As the parties are in agreement, and as I accept the correctness of their submissions, it is unnecessary that I discuss the case law regarding an award of interest.
I agree with the respondents’ submission that it is appropriate that the award of interest be apportioned pro rata to the award of the lump sum. It will be necessary for the payments to the second and third respondents be made to the NSW Trustee and Guardian, and they will be entitled to the costs of funds management.
The orders are set out in the Certificate of Determination.
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