Zona Coatings Pty Ltd v Zrinski

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Zona Coatings Pty Ltd v Zrinski & Ors [2022] NSWPIC 547
APPLICANT:	Zona Coatings Pty Limited
FIRST RESPONDENT:	Ani Zrinski
SECOND RESPONDENT:	Daniel Zrinski
THIRD RESPONDENT:	Brandon Zrinski
FOURTH RESPONDENT:	Mila Christi Marie Zrinski
FIFTH RESPONDENT:	Milka Zrinski
Member:	John Isaksen
DATE OF DECISION:	5 October 2022
CATCHWORDS:	WORKERS COMPENSATION - Apportionment of a lump sum death benefit; liability admitted; claim for interest; Held – orders made for apportionment; order for the payment of interest at 2% above RBA rate once claim fully particularised.
determinations made:	1. The worker, Mario Zrinski (the deceased worker) died on 25 February 2021 as a result of an injury whilst in the course of his employment with the applicant employer, Zona Coatings Pty Limited. 2. The following persons were dependent for support upon the deceased worker at the time of his death: (a) Ani Zrinski, the wife of the deceased worker; (b) Daniel Zrinski, a son of the deceased worker; and (c) Mila Christi Zrinski, a granddaughter of the deceased worker. 3. No other persons were dependent for support, or have claimed to be dependent for support, upon the deceased worker. 4. The lump sum benefit payable in accordance with s 25 of the Workers Compensation Act1987 (the 1987 Act) at the date of death of the deceased worker is $834,200.
ORDERS MADE:	1. Pursuant to s 29 (1B) of the 1987 Act, the lump sum benefit is apportioned as follows: (a) the applicant is to pay Ani Zrinski, the sum of $ 717,412 pursuant to s 85A of the 1987 Act; (b) the applicant is to pay Daniel Zrinski the sum of $83,420 pursuant to s 85A of the 1987 Act, and (c) the applicant is to pay Mila Christi Marie Zrinski the sum of $33,368, such sum to be paid to the NSW Trustee in trust for the benefit of Mila Christi Marie Zrinski pursuant to s 85 of the 1987 Act. 2. Pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, the applicant is to pay interest on the lump sum benefit as follows: (a) 3.85% per annum from 4 August 2022 to 6 September 2022, and (b) 4.35% per annum from 7 September 2022 until date of payment of the lump sum death benefit.

STATEMENT OF REASONS

BACKGROUND

The applicant, Zona Coatings Pty Limited, has filed an Application with the Personal Injury Commission (the Commission) seeking the apportionment of a lump sum death benefit of $834,200 that is payable following the death of its employee, the late Mario Zrinski (the deceased worker).
The deceased worker died on 25 February 2021 as a result of an injury whilst in the course of his employment with Zona Coatings Pty Limited.
Zona Coatings Pty Limited (the applicant employer) admits liability for the death of the deceased worker.
The following persons claim to have been dependent for support upon the deceased worker:
(a)    Ani Zrinski, the wife of the deceased worker, being the first respondent in these proceedings;
(b)    Daniel Zrinski, a son of the deceased worker, being the second respondent in these proceedings;
(c)    Brandon Zrinski, a son of the deceased worker, being the third respondent in these proceedings;
(d)    Mila Christi Marie Zrinski, a granddaughter of the deceased worker, being the fourth respondent in these proceedings, and
(e)    Milka Zrinski, the mother the deceased worker, being the fifth respondent in these proceedings.
There were no other persons dependent, or claiming to be dependent, upon the deceased worker.
A timetable was set for all parties to provide written submissions on the issues of apportionment and interest, and any submissions in reply.
The Commission was informed in written submissions filed by the third respondent, Brandon Zrinski, that he was withdrawing his claim for part of the lump sum death benefit.
The following documents were taken into account in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    written submissions filed by the applicant on 26 September 2022;
(c)    Reply filed by the first respondent and attached documents;
(d)    a further statement, list of phone records, and written submissions filed by the first respondent on 8 September 2022;
(e)    written submissions in reply filed by the first respondent on 21 September 2022;
(f)    Reply filed by the second respondent and attached documents;
(g)    a supplementary statement filed by the second respondent on
2 September 2022;
(h)    written submissions filed by the second respondent on 15 September 2022;
(i)    Reply filed by the third respondent and attached documents;
(j)    written submissions filed by the third respondent on 13 September 2022;
(k)    Reply filed by the fourth respondent and attached documents;
(l)    written submissions filed by the fourth respondent on 13 September 2022;
(m)     Reply filed by the fifth respondent and attached documents, and
(n)    written submissions filed by the fifth respondent on 12 September 2022.

FINDINGS AND REASONS

Apportionment

Ani Zrinski

Ani Zrinski has provided statements dated 13 October 2021, 7 June 2022 and
8 September 2022.
Mrs Zrinski has recently turned 59 years of age. Mrs Zrinski and the deceased worker were married on 25 May 1985, and they remained married until the death of the deceased worker. Mrs Zrinski and the deceased worker had two sons:
(a) Daniel Zrinski, currently aged 33 years, and
(b) Brandon Zrinski, currently aged 28 years.
Mrs Zrinski states that her late husband was employed full time with the applicant employer, which was a painting business owned by their son Brandon Zrinski. She states that her husband did most of the quotes and tax invoices for the applicant employer, and also acted as a mentor for the business.
Mrs Zrinski states that she did some limited work for the applicant employer by cleaning up painting jobs and doing deliveries for the business, but she considers she was entirely dependent upon the earnings of her late husband prior to his death.

Mrs Zrinski states that she and her late husband were residing in rented premises at Kellyville at the time of the death of her husband, and they were paying $2,700 per month in rent. She states that her late husband’s earnings were used to meet the rent, groceries, utility bills and a credit card debt of between $10,000 and $15,000. She states that she performed all the cooking and cleaning, but that her late husband did the lawn mowing and most of the gardening. Mrs Zrinski states:
“I agree that there was typically not a lot left in our account from his pay but we never wanted for anything as a family and I had no financial concerns as his wife.”
Mrs Zrinski states that their son, Daniel, and his fiancée were also living at the Kellyville premises but were not contributing to the rent because Daniel was starting his own painting business, although he would sometimes contribute $100 per week in board. She states that the intention would have been for Daniel to pay board once his own business became more established.
Mrs Zrinski states that she and her late husband provided care for their granddaughter, Mila, being a child of Brandon, for three days per week, usually from 6.00am to 5.30pm.
Mrs Zrinski states that her late husband had two brothers, and that the mother of her late husband, Milka Zrinski, resides at Bossley Park. She states that neither of her late husband’s brothers nor his mother were dependent upon the deceased worker at the time of his death. She states that her late husband did not provide any financial assistance or any other services to his mother.
Mrs Zrinski states that she never had much of a relationship with her mother-in-law. She states that her late husband had a superficial relationship with his mother. She states that Milka Zrinski did not attend family gatherings or celebrations throughout their married life.
Mrs Zrinski has provided copies of two title searches which record that Milka Zrinski owns two unencumbered properties – at Bossley Park and at Sanctuary Point.
Mrs Zrinski states that her late husband never kept anything from her and considers it impossible that her late husband was seeing his mother on a regular basis as claimed by Milka Zrinski because she would have been informed of this. She states that her late husband would never have made trips once per month to see his mother at her houses at Bossley Park or Sanctuary Point as has been claimed by Milka Zrinski “because we had a completely honest and open relationship and he would have discussed this with me”.
Mrs Zrinski states that her late husband did have brief phone conversations with his mother, but they were less than happy conversations. Mrs Zrinski has provided copies of her Vodafone accounts for 12 months prior to her husband’s death and those documents record only nine telephone calls to Milka Zrinski during that period, with the conversations lasting 36 minutes in total. She states that although the accounts are addressed to her, the phone was used exclusively by her late husband prior to his death.
Mrs Zrinski doubts the claim made by Milka Zrinski that her late husband would give cash to his mother to help with expenses. She states that she never saw this happen and that it is exceedingly unlikely given the poor relationship between mother and son, and also that she and her late husband’s finances were tight.
Mrs Zrinski states that photographs of her late husband and Milka Zrinski being together date back to between 2010 and 2012.
Mrs Zrinski states that she is now living with her son Brandon and his partner, Hayleigh, at Riverstone. She states that she has a small amount of savings of about $17,000 and is receiving Centrelink payments.
Mrs Zrinski states that it was her late husband’s intention to work for a couple more years and then they would retire and live in Spain, and they would have to rely upon government payments.

Daniel Zrinski

Daniel Zrinski provided a statement to NSW Police dated 26 February 2021 and two statements for these proceedings dated 30 June 2021 and 2 September 2022.
Daniel Zrinski states that he was very close to his late father, and it was his father who helped him establish his own painting business.
Daniel Zrinski states that he had been living with his parents in their rented premises for about four years. He states that he did not pay any board. He states that his parents “were helping me get set up”.
Daniel Zrinski states that he earns about $70,000 clear from his painting business, and his fiancée, Daniella, works in health finance.
Daniel Zrinski states that Milka Zrinski never attended any family gatherings and that he has seen her only twice in the last five years, being at a funeral in 2017 and at his father’s funeral.

Mila Christi Marie Zrinski

A statement has been provided by Hayleigh Elizabeth Boyd, the mother of Mila Christi Marie Zrinski, dated 5 July 2022. Ms Boyd is the partner of Brandon Zrinski.
Ms Boyd states that her daughter, Mila Christie Marie Zrinski, was born in 2019. She states that the deceased worker was extremely excited with the birth of his first grandchild. She states when Mila was born, the deceased worker converted his office at his home into a nursery for Mila. The deceased worker then moved the nursery into the premises that
Ms Boyd and Brandon Zrinski were to live in at Richmond some three months later.
Ms Boyd states that the deceased worker would often bring toys for Mila or turn up with lunch or groceries. The deceased worker and Ani Zrinski insisted on feeding Mila when they cared for her for three days of each week when Ms Boyd worked. She states that the deceased worker purchased a baby seat for his car for Mila to use, and the deceased worker would lend his car to Ms Boyd on many occasions.
Ms Boyd states that Brandon, Mila and herself moved into a new rental property at Riverstone on or about 12 February 2021 and that the deceased worker helped to “baby proof” that house just as Mila was starting to walk.
Ms Boyd states:
“Mario was keen to have a close relationship with Mila, his first grandchild. I have no doubt that he would have continued to assist Brandon and I, and Mila, if his unfortunate accident had not happened in February 2021.”

Milka Zrinski

Milka Zrinski has provided a statement dated 22 August 2022.
Milka Zrinski states that she currently resides at Sanctuary Point, and that she is 79 years of age.
Milka Zrinski states that she had a close and healthy relationship with her late son. She states that she saw her late son at least once a month and she spoke to him regularly. She states that her late son would usually visit her alone and they would have dinner together, either by her late son bringing take away food or by her cooking a meal.
Milka Zrinski states that her husband died five years ago and since then her late son helped her immensely, both emotionally and financially. She states that when he visited he would usually give her cash to help with her expenses. She states that she does not have internet banking, so that cash was convenient for her.
Milka Zrinski states that her expenses exceed her income. She has provided a list of expenses which total $625 per week, but she states that she currently receives $987.60 per fortnight in Centrelink payments. Milka Zrinski states that her late son would pay various bills either in full or at 50%, and that he would give her around $100 to $200 to help with daily expenses.
Milka Zrinski states that her late son would have continued to assist her in the foreseeable future if this unfortunate accident had not occurred.
Milka Zrinski has provided several photographs of herself and her late son together. She states that she is not close with Ani Zrinski, so that it does not surprise her that Ani is not aware of the financial assistance provided by her late son.

Submissions on apportionment by the parties

The legal representatives for Ani Zrinski submit that the orthodox practice when approaching the apportionment of a lump sum upon the death of a worker is that the widow (or widower) receive the largest share of the lump sum because the lump sum reflects the capital loss of the breadwinner to the family. It is submitted that this principle should apply in this dispute and Ani Zrinski receive 80% of the lump sum.
It is submitted that the balance of the lump sum be shared equally between the two sons of the deceased worker, but there be no payment of any part of the lump sum to Mila Zrinski or Milka Zrinski. This submission was made prior to Brandon Zrinski informing the Commission that he had withdrawn his claim.
It is submitted that although the deceased worker converted his home office into a nursery, this was a purely historical matter and that there would be no reasonable expectation by Mila of dependency in futuro.
It is submitted that it “beggars belief” that cash payments were made by the deceased worker to his mother when the finances of the deceased worker and Ani Zrinski were tight, and they had their own obligations to pay bills, and that any excess funds would be used to assist their sons.
It is also submitted that because it was the intention of Ani Zrinski and her late husband to live in Spain following his retirement, then the alleged assistance that Milka Zrinski claims she was receiving from her son would have come to an end.
The legal representatives for Daniel Zrinski submit that if the suggested apportionments by those members of the family of the deceased worker who are eligible for part of the lump sum death benefit are relatively consistent with what the Commission considers appropriate, then such a suggested apportionment should be adopted by the Commission. It is hoped that any apportionment will not create disharmony in the family where harmony can otherwise be found.
It is submitted that Ani Zrinski should receive 90% of the amount payable and 10% should be paid to Daniel Zrinski.
Daniel Zrinski joins his mother in submitting that Milka Zrinski is not a dependent of the deceased worker. It is pointed out that there is a significant financial imbalance between the deceased worker and his wife, who did not own any real estate, when compared to Milka Zrinski, who has the ownership of two unencumbered properties.

The legal representatives for Mila Zrinski submit that although she is an infant, she was partially dependent on the deceased worker prior to his death, and that she had a reasonable expectation of receiving ongoing assistance and support from the deceased worker. It is submitted that appropriate apportionment for Mila would be between 5% and 10% of the lump sum death benefit.
The legal representatives for Milka Zrinski submit that financial assistance to an elderly parent is a common occurrence in family structures and the evidence from Milka Zrinski should be accepted by the Commission.
It is submitted that the dependency of Milka Zrinski would have increased as she grew older and needed more assistance.
It is submitted that 10% of the lump sum is an appropriate allowance for Milka Zrinski.

Determination on apportionment

The evidence discloses that Ani Zrinski was totally dependent upon her late husband for support as at the date of her husband’s death. Although Ani Zrinski states that she did some limited work for the applicant employer by cleaning up painting jobs and doing deliveries for the business, neither she nor Brandon Zrinski (the principal of the business) state that she was paid for that occasional work.
It would appear then that Ani Zrinski was totally dependent upon the earnings of her late husband to meet the rent on the premises that she and her late husband were occupying and to meet their usual living expenses. Ani Zrinski and her late husband had little in savings at the time of his death, and were not fortunate enough to own a property to live in. Ani Zrinski acknowledges that she and her late husband would have had to rely upon government payments once her husband made the decision to retire.
Ani Zrinski is currently 59 years of age, so that based upon the Life Expectancy tables, she might reasonably expect to live another 25 to 30 years without the support of her husband.
It follows from this evidence that the vast majority of the lump sum death benefit should be paid to Ani Zrinski. None of the other respondents have made an argument against this, and those who still claim a portion of the lump sum death benefit seek modest payments from the full amount.
It is a question as to whether any of the other respondents who still make a claim were dependent upon the deceased worker as at the date of his death.
In TNT Group 4 Pty Ltd v Haloris (1987) 8 NSWLR 486, McHugh JA said at [490]:
“…a person is dependent on a deceased worker if at the time of death, he or she fell within one of the specified relationships and had a reasonable expectation that the deceased would provide support for him or her either at that time or in the future.”
I accept that Daniel Zrinski was dependent upon his father at the time his father’s death. Although Daniel states that he was earning about $70,000 clear from his own painting business, and his fiancée was also in paid employment, he states that he had been living with his parents for about four years without paying rent or board while he was establishing his business.
Ani Zrinski and Daniel Zrinski are ad idem in nominating a 10% share to Daniel, which amounts to $83,420. I agree with the submission made by Daniel Zrinski that if what is suggested by way of apportionment is relatively consistent with what the Commission considers appropriate, then such a suggested apportionment should be adopted by the Commission.
The amount of $83,420 can also be justified by way of an allowance of about $20,000 each year to cover rent and expenses for another four years. That would appear to be a reasonable period of time for Daniel to further establish his business and prepare for life ahead with his fiancée.

I agree with a submission made on behalf of Ani Zrinski that the care of Mila which was provided by Ani Zrinski and the deceased worker for three days per week to allow Brandon Zrinski and his partner to work does not amount to dependency by Mila upon the deceased worker, but rather is assistance or support provided to Brandon Zrinski and his partner.
Nonetheless, the evidence provided by Ms Boyd does support a finding that Mila had some dependency upon the deceased worker by his provision of food and groceries for the benefit of Mila. There was also the assistance provided by the deceased worker in helping to “baby proof” the house at Riverstone, which Brandon’s family had moved into on or about
12 February 2021. Significantly, that was only some two weeks before the death of the deceased worker. Those actions by the deceased worker indicate that he was providing more support to Mila other than the conversion of his office into a nursery in mid-2019, which those representing Ani Zrinski contend was a purely historical event.
The evidence therefore points towards the deceased worker providing support for Mila as at the date of his death, and that there would be a reasonable expectation that this support would have continued.
I therefore consider that Mila should receive a small portion of the total lump sum benefit which acknowledges the past acts and future probability of the deceased worker providing support to his granddaughter. That should be 4% of the lump sum death benefit, which amounts to $33,368. That amount can also be justified by being an allowance of about $2,000 per annum until Mila reaches adulthood.
The claim made by Milka Zrinski is opposed by Ani Zrinski and Daniel Zrinski.
Ani Zrinski and the deceased worker were married for 35 years. The evidence suggests that it was a relationship built on mutual truth and respect. Ani Zrinski states, for instance, that she was aware that the deceased worker did some gambling, but it was not a problem for them. She states: “What was mine was his and vice versa”.
The evidence from Ani Zrinski strongly supports her contention that it was impossible that her late husband was seeing his mother on a regular basis because her late husband would have informed her of this. Furthermore, the alleged trips and visiting time, even if only from Kellyville to Bossley Park and return, would have taken up some considerable time, which Ani Zrinski states she would have been aware of if those visits had actually occurred. A trip to Sanctuary Point and return would take up the best part of a day.
I also accept that the state of the finances of Ani Zrinski and late husband means that it is highly unlikely that the deceased worker was providing cash to his mother on a regular basis. While it appears that Ani Zrinski and her late husband maintained a reasonable standard of living, they did not have much left over each week given the small amount of savings which they had, and Ani Zrinski’s acknowledgement that she and her late husband would have to rely upon government payments upon his retirement.
Other evidence which supports a finding that Milka Zrinski was not dependent for support upon her late son are the phone records which reveal little contact being made between the two of them, and which is despite Milka Zrinski stating that she spoke to her late son regularly.
I also agree with a submission made by Ani Zrinski that even if there were occasions when the deceased worker visited his mother, and he either brought take away food or Milka Zrinski did the cooking, that should be regarded as socialising rather than there being any dependency derived from such actions.
There is a lack of specific details provided by Milka Zrinski of the regular trips she claims that her late son made to visit her. Although she is aware of the challenge made by her daughter-in-law in regard to these alleged visits, Milka Zrinski does not provide any specific dates as to when her late son visited her and provided her with cash to help with her bills.
It would have been a relatively straightforward task for Milka Zrinski to look back over the six months before her son’s death and nominate the dates when her late son came to visit. There would have been at least five or six occasions when the deceased worker would have visited his mother over that period of time based upon her evidence.
Ani Zrinski and her sons could then undertake their own checking of dates to determine whether the deceased worker was away from the home and not otherwise at work. That lack of specific information from Milka Zrinski adds to my sense of persuasion from the evidence that the deceased worker was not providing support to his mother.
Milka Zrinski also does not state that she owns two properties as claimed by Ani Zrinski, and which is supported by the two property searches annexed to the statement of Ani Zrinski dated 8 September 2022. Milka Zrinski states that: “My house is paid off”, and she only includes rates notices which to apply to a property at Bossley Park. The title search of the property at Sanctuary Point records that there has been no change in title since May 2012.
The statement from Ani Zrinski which annexes the two property searches was filed and served after Milka Zrinski provided her statement dated 22 August 2022. However, Milka Zrinski has not availed herself of the Direction made at the preliminary conference on
8 August 2022 to provide any written submissions in reply by 26 September 2022, which would provide her with an opportunity to refute the evidence provided by Ani Zrinski.
There is a weakness and lack of credibility in the evidence from Milka Zrinski. That contrasts with the evidence which I have accepted from Ani Zrinski, and which leads me to conclude that Milka Zrinski was not dependent for support upon the deceased worker.
The apportionment of the lump sum death benefit will therefore be as follows:
Ani Zrinski:   86%, amounting to $717,412;
Daniel Zrinski:   10%, amounting to $83,420;
Mila Christi Marie Zrinski:            4%, amounting to $33,368.

The claim for interest on the lump sum death benefit

Ani Zrinski and Daniel Zrinski seek payment of interest on the lump sum death benefit.
The power to award interest is provided in s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), which relevantly 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) …
(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)     …”
The decision as to when interest should be payable on the lump sum death benefit, and at what rate, has been the subject of many determinations by the Commission in recent years, and has been well summarised in written submissions filed on behalf of the applicant employer.
The primary submission made by the applicant employer is that no interest should be awarded because the claimants have not been financially disadvantaged by any delay in the payment of the lump sum death benefit (with reference being made to what was said by Reynolds JA (with Moffitt P and Mahoney JA agreeing) in Pheeney v Doolan [1977] 1 NSWLR 601).
The applicant employer also refers to s 109 (2)(c) of the 1998 Act which provides that interest is not payable during a period in which proceedings before the Commission are adjourned on the application of the claimant, and submits that there was an adjournment between the telephone conference on 8 August 2022 and the final filing of submissions by a claimant (being the second respondent) on 21 September 2022.
In Kaur v Thales Underwater Systems Pty Ltd [2011] NSWWCCPD 6 (Kaur), Keating P 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.”
In an arbitral decision of Shanika Cooper v G & W Mudge Concreting Pty Ltd & others (WCC6411/18) Arbitrator Wynyard referred to the decision in Kaur to form the view that the phrase “duly made” refers to a date when an applicant’s claim is fully particularised. I agreed with that approach in a subsequent unpublished decision of Lavelle v David Paul Browne & others (WCC533/19) and a decision of Kathryn Ann Kratz as executrix for the estate of the late Owen Beddall v Qantas Airways Limited [2020] NSWWCC 36. Similar approaches have been taken by other Members and are set out in the applicant employer’s written submissions.
A claim for the lump sum death benefit was made by Ani Zrinski on 16 April 2021, and she named her two sons as also being dependent upon the deceased worker. It was another 12 months before the applicant employer accepted liability for the claim. On the same day that liability was accepted (being 12 April 2022), the solicitors for the applicant employer sought particulars of dependency from those solicitors who separately represented Ani Zrinski and her two sons.
Ani Zrinski and her two sons had all provided statements during the course of 2021. It is not clear from the material provided to the Commission as to when those statements were made available to the applicant employer, although the statement from Ani Zrinski dated
13 October 2021 was provided to an investigator retained on behalf of the applicant employer.
However, no proceedings seeking orders for apportionment of the lump sum death benefit were filed by Ani Zrinski or her two sons following the acceptance of liability by the applicant employer. A period of almost three months went by from the time of acceptance of liability before the applicant employer filed an application in the Commission.
From my review of the material, the claims made by the dependents of the deceased worker, other than the claim made by Milka Zrinski, had not been fully particularised until all of their respective Replies had been filed and served. That date was 4 August 2022.
Exercising the discretion provided by s 109 of the 1998 Act, interest on the lump sum death benefit should be allowed from 4 August 2022 to the date of payment to those respondents who have been found to be dependent upon the deceased worker for support.
The apportionment of the lump sum death benefit could have been undertaken at or soon after the preliminary conference conducted on 8 August 2022 but for the claim made by Milka Zrinski. Those respondents who have been found to be dependent upon the deceased worker have suffered a financial disadvantage due to a delay in making the orders for apportionment, when they had otherwise fully particularised their respective claims, and they should get the benefit of award for interest.
I do not consider that s 109 (2)(c) of the 1998 Act applies to prevent an order for interest being made because the adjournment of the proceedings at the preliminary conference on
8 August 2022 was not sought by any other of the respondents who have received the benefit of the lump sum death benefit, but instead was primarily allowed so that Milka Zrinski could provide particulars of her claim.
Ani Zrinski submits that the rate of interest to be applied should be the same as that applied by the Local, District and Supreme Courts, being 6% above the RBA cash rate, so that the Commission should return to comity with those jurisdictions on this issue.
The applicant employer has listed over a dozen decisions of Arbitrators and Members which have set interest at or around 2% above the RBA cash rate. Those decisions have emphasised a practical approach to the awarding of interest having regard to a period of some years now where interest rates have been very low. I agree with that approach. I also agree with the submission made by the applicant employer that this approach accords with the exercise of discretion allowed for in s 109 of the 1998.
An award of interest on the lump sum death benefit, which will be 2% above the RBA cash rate, will be as follows:
(a) 3.85% per annum from 4 August 2022 to 6 September 2022, and
(b) 4.35% per annum from 7 September 2022 until date of payment of the lump sum death benefit.

[2022] NSWPIC 547

5 October 2022