18 September 2024. 6. The Application named NSWPF as the first respondent; Max as the second respondent; Oscar as the third respondent; and Daniqua Lindsay-Gai Scali as the fourth respondent.

Ms Scali is the daughter of the applicant and the stepdaughter of the worker. 7. The second respondent lodged his Reply on 9 October 2024. 8. The fourth respondent lodged her Reply on 9 October 2024. 9. The third respondent lodged his Reply on 10 October 2024. 10. The first respondent lodged its Reply on 6 November 2024.

(a) whether the second respondent and the third respondent are entitled to an increase in their costs, on the basis that the matter is complex.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

1. The matter was listed for preliminary conference on 9 December 2024.
2. Ms Tuco appeared for the applicant; Mr Kim appeared for the first respondent; Ms Nemme appeared for the second respondent; Ms Nair appeared for the third respondent; and

Mr Clarke appeared for the fourth respondent. Mr Robinson, the grandfather of Max, Oscar and Ms Scali, attended. Mr Aaron R-B from EML NSW Ltd and Ms Stebbings from NSWPF also attended. 3. The first respondent confirmed that it had paid the worker's funeral expenses, and weekly benefits were being paid for Max and Oscar. 4. I was advised that the applicant and second, third, and fourth respondents had agreed on a proposed apportionment of the lump sum death benefit. The proposed apportionment included payment of $100,000 each to the second, third and fourth respondents. 5. I was concerned that the evidence of Mr Robinson, which I discuss below, was that Max and Oscar were undergoing counselling and tutoring, but there was no evidence from the providers of these services as to their frequency, likely duration, costs, and whether the needs of Max and Oscar were materially different. 6. It also seemed to me that, although the applicant may understandably wish to see all her children treated equally, it was likely that Max and Oscar had greater dependency on the worker than Ms Scali, due to their ages and possible special needs. 7. I required further evidence to allow me to determine the appropriate apportionment of the lump sum death benefit. I accordingly adjourned the matter for further preliminary conference on 3 February 2025. The parties were given liberty to request an earlier preliminary conference should the evidence become available before 3 February 2025. 8. On 3 February 2025, the appearances were as before. Mr Robinson, Mr R-B and

Ms Stebbings again attended. 9. Further evidence had been lodged by the second and third respondents, and I was advised that the proposed apportionment of the lump sum death benefit was now as follows:

(a) applicant: $561,200;

(b) second respondent: $110,000;

(c) third respondent: $120,000, and

(d) fourth respondent: $80,000.

1. The further evidence, comprising Application to Lodge Additional Documents dated

29 January 2025 and attached documents, lodged by the second respondent, and Applications to Lodge Additional Documents dated 29 January 2025 and 31 January 2025 and attached documents, lodged by the third respondent, were admitted by consent. 2. I was satisfied that the proposed apportionment was appropriate and made findings and orders accordingly. 3. The parties had agreed on an award of interest, in respect of which an order was made; and an order was made for the payment of an additional compensation fee, pursuant to s 25(1A) of the 1987 Act, for the management and investment of the lump sum death benefit paid to the second respondent. 4. As Mr Stone was an exempt worker, orders were made that the first respondent pay the costs of the applicant, the second respondent, the third respondent, and the fourth respondent, as agreed or assessed. 5. The matter having been finalised, the Commission's file was then closed. 6. By letter to the Commission dated 4 February 2025, the solicitors for the third respondent requested an "uplift" of his costs. I discuss the contents of the letter below. 7. Unfortunately, this letter was overlooked by the Commission staff member to whom it was referred, and it was brought to my attention on 4 March 2025. 8. As there was no evidence that the solicitors for the third respondent had sent a copy of their letter to any other party, I caused an email to be sent to the other parties, requesting that they make any submissions they wished to make, which could be brief and by email, by 5.00pm on 12 March 2025. 9. I refer to the submissions below. 10. 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 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.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) Application 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;

(e) Reply by fourth respondent and attached documents;

(f) Application to Lodge Additional Documents dated 29 January 2025 and attached documents, lodged by the second respondent;

(g) Application to Lodge Additional Documents dated 29 January 2025 and attached documents, lodged by the third respondent, and

(h) Application to Lodge Additional Documents dated 31 January 2025 and attached documents, lodged by the third respondent.

1. It is not necessary to refer to the evidence in detail in these reasons, which are restricted to the application by the second and third respondents for an increase in their costs.

1. The applicant's statement is dated 18 August 2024.
2. On 1 January 2023, the family went swimming at Bagola Beach.
3. At roughly 1.00pm, they noticed Max was in distress, having been caught in a rip.
4. The worker was able to push Max out of the rip. Although the worker was brought out of the water by the Surf Living Saving Association rescue vessel, he was not able to be resuscitated.
5. In 2021, the applicant was medically discharged from the police force due to PTSD (post-traumatic stress disorder).
6. The worker brought in the bulk of the household income. She, Max, and Oscar were solely reliant on him once she was discharged.
7. She paid for Max and Oscar's soccer and tutoring. In the months following the worker's death, she covered the costs of their therapy and antidepressants.
8. There was an amount outstanding on the mortgage. There had been an amount outstanding on a joint credit card, and on a personal loan from the worker's parents, both of which she had paid off.
9. After the worker's death, Max had become extremely angry, reserved, and reactive. He had been struggling in school. He had become extremely sensitive to peoples' actions.
10. Oscar had become very quiet and reserved. He was on antidepressants and showed no interest in science like he once did.
11. Both boys had been receiving psychological intervention. They had become extremely paranoid, always wondering where she was and when she would be home.
12. Ms Scali saw the worker as a father. When he died, she became reliant on alcohol. She was "completely broken".
13. She was of the view that, regardless of the differing ages of the dependants, they should receive equal compensation.

1. Mr Robinson has given evidence in support of both Max and Oscar.
2. Mr Robinson has made two statutory declarations in respect of Oscar's dependency.
3. On 1 May 2024, Mr Robinson declared that the worker and Oscar shared many interests. The worker helped Oscar with his schoolwork and was very supportive of Oscar's interest in going to university.
4. On 8 October 2024, Mr Robinson declared that the worker had been the sole income earner. Oscar continued to be fully dependent on the applicant.
5. Since the worker's death, Oscar had struggled mentally. The trauma of witnessing his father's death had left a profound emotional scar. Two months ago, Oscar had been prescribed antidepressants. This, in combination with psychological consultations, seemed to be improving his mood.
6. As Oscar's school results had declined, the applicant had paid for tutoring, to ensure he could achieve his goal of becoming a doctor. Oscar planned to go to Western Sydney University to study for a four year Bachelor of Medical Science degree, after which he aimed to complete a five year course as a Doctor of Medicine.
7. As regards Max's dependency, Mr Robinson made a statement dated 8 October 2024.
8. The trauma of witnessing the worker's death while being saved from a rip had left a profound emotional scar on Max.
9. Max experienced recurring nightmares, flashbacks, and overwhelming guilt. This guilt had led to significant emotional instability.
10. Max's school performance had been significantly impacted. He was struggling to concentrate and engage with his studies. His teachers had noticed a drop in his performance.
11. Max had been receiving psychological counselling. His mental health had been a significant concern for both his family and the professionals working with him.
12. It was uncertain whether Max would be able to continue his schooling without interruption. His family had had to dip into savings and superannuation to cover basic expenses.
13. Mr Robinson made a further statement dated 29 January 2025.
14. Max struggled significantly at school after the worker's death. This influenced his decision to leave school in 2024 after completing year 10.
15. Max had started work as an apprentice fitter and was on probation with his employer.
16. Max had been seeing a psychologist, Mr Nik Szafraniec, monthly, but ceased treatment in late 2023, as the sessions were not yielding any progress. Max's emotional state remained fragile.
17. Max had been diagnosed in 2024 with ADHD (attention deficit hyperactivity disorder). He was taking Ritalin, and the diagnosis and medication had resulted in improvements in his attitude. However, the loss of his father had compounded his emotional struggles, and the absence of his father's encouragement and financial provision for his medical needs had placed an added burden on the family.

1. Ms Scali's statement is dated 8 October 2024.
2. She was born in 1999 and was then 24 years old.
3. She was employed as a full time bar manager.
4. She had known the worker all her life, as he married her mother in 2004. The worker had always treated her as his daughter and had always stood as her father.
5. Since she moved out of home in August 2022, the worker was a big help. He would help out with tasks around the apartment.
6. Other than a group session with the police chaplain, she had not sought medical treatment in relation to the worker's death. She had managed to cope so far.
7. She was moving soon. The worker would have helped her move. If she had needed financial help in the future, he would have helped her work through the situation, whether that be acting as guarantor on a property or providing financial help.
8. The worker would talk about wanting to help pay for the wedding she hoped to have one day. He had helped her financially and paid for her to attend family holidays, which she could not otherwise afford.

1. Mr Szafraniec's clinical records are in evidence. I do not propose to refer to the records, but I have read and had regard to them.
2. On 19 June 2024, Mr Szafraniec reported to Dr Gavin Vajda.
3. Mr Szafraniec had treated Max from 2022 and into 2023.
4. Max had presented initially with both his parents, who had concerns relating to difficulties with emotional regulation.
5. There was further reported concern for Max with regard to low self-esteem and body image difficulties.
6. Mr Szafraniec's initial concerns included the possibility that Max was suffering the secondary impact of a possible diagnosis of ADHD.
7. Max had responded well to treatment, which was planned to continue in 2023.
8. At the start of 2023, Max's father died. Mr Szafraniec's intervention was interrupted and was focussed on supporting Max in his ongoing grief and with support at school.
9. The applicant had recently contacted Mr Szafraniec with concerns for Max's inattentiveness and difficulty concentrating at school.
10. Mr Szafraniec recommended that Max may be suitable for pharmacological intervention for ADHD and consider re-engaging in treatment with Mr Szafraniec or a similar clinician.

1. The parties have made written submissions, to which I will refer briefly.

1. The third respondent submitted the "additional work" required as a result of my considering it necessary for the second and third respondents to obtain additional evidence warranted an uplift with respect to his costs.
2. The third respondent requested that an order be made with respect to his costs, without specifying the percentage increase in costs that he sought.

1. The second respondent "agreed" to the proposed uplift of the third respondent's costs and sought a commensurate uplift.
2. The second respondent submitted that "material of [the nature referred to by the first respondent] is not generally a prescriptive requirement in death benefit claims, particularly in matters where the apportionment...was resolved by way of agreement."
3. The second respondent submitted it was not until the parties had the benefit of the preliminary conference and "were able to discern" my views to consider whether and what additional material was needed "to assist in forming a dispositive determination" [sic].
4. Given the extent of the additional work, the second respondent was "amenable" to an uplift of the third respondent's costs and sought an analogous uplift of his costs.

1. The fourth respondent did not seek to make submissions, nor did she seek an increase in her costs.

1. The applicant did not respond to the Commission's request for submissions.

1. The first respondent opposed the applications by the second and third respondents for an increase in their costs.
2. The first respondent submitted the information I requested ought reasonably have been anticipated as being required to establish the appropriateness of the apportionment. That holds even if an apportionment was proposed by consent.
3. The first respondent submitted it was reasonable to expect that evidence be included with the Replies prior to the initial preliminary conference. Had that been done, a further preliminary conference would not have been required, nor would there have been a need to lodge additional documents.

1. Item 4 of Table 4 of Pt 2 of Schedule 6 of Workers Compensation Regulation 2016 (the Regulation) permits an increase in the rate provided for in Table 1 in matters that involve some complexity. The maximum increase is 30%.
2. Clause 11 of Pt 1 of Schedule 6 of the Regulation provides:

"If Table 3 or 4 or Part 3 sets an upper limit for the maximum payable by way of any costs, the maximum payable is to be an amount determined, within the range from and including nil to and including the upper limit, by reference to--

(a) any applicable procedural direction of the President or the Commission rules, and

(b) subject to paragraph (a), the nature and extent of the service performed."

1. In Lake v Hunter Institute of Technology - NSW TAFE,[1] Registrar Parsons, as he then was, said:

"'Complexity' is not defined in the workers compensation legislation, but in the

context of proceedings in the Commission, the term indicates an intricacy of fact, law and legislation that is higher than that usually encountered in other proceedings for workers compensation disputes. Factors to be considered include preparation, skill, care, time, novelty and difficulty of a case in terms of legal, medical, factual, procedural, evidentiary and multiplicity of issues."

1. This was a matter in which liability was accepted. The only issues that required determination were the apportionment of the lump sum death benefit and the claim for interest.
2. I accept the first respondent's submissions. This is not a case where additional work was required. Rather, it is a case where the evidence I requested at the first preliminary conference could, and should, have been obtained before the Replies were lodged on behalf of the second and third respondents, or at the latest, before the conference took place.
3. The third respondent's submissions are accordingly rejected.
4. The second respondent's submissions are also rejected.
5. In order to determine an appropriate apportionment of the lump sum death benefit where there is more than one potential dependant, the Commission requires evidence as to each person's dependency.
6. It is often the case that the dependants agree on a proposed apportionment of the lump sum death benefit. However, the Commission's determination is not merely a rubber stamp that is required before the dependants' proposal takes effect.
7. In cases where the dependants' legal representatives have obtained and lodged supporting evidence, the Commission may be satisfied at the preliminary conference that the apportionment proposed by the dependants is appropriate and make the requisite findings and orders.
8. This is not such a case. Max and Oscar were aged 16 and 17, respectively, at the date of the first preliminary conference. The applicant and their grandfather had given evidence about the difficulties they faced, but that was, with respect, lay evidence. It was proposed that Ms Scali, who was by that time aged 25, living independently, and in full-time employment, receive the same amount as Max and Oscar, which did not appear to me to be appropriate.
9. The evidence was unsatisfactory, and I was not able to determine whether the proposed apportionment was appropriate. My request for appropriate evidence did not make the matter complex, or entail "additional" work.
10. In the circumstances, and in the exercise of my discretion, the application by the second and third respondents for an increase in their costs for complexity is declined.