Hijazi v CGU Workers Compensation - [2012] FMCA 956

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HIJAZI v CGU WORKERS COMPENSATION & ANOR

[2012] FMCA 956

BANKRUPTCY – Annulment – no satisfaction the sequestration order should not have been made – discretion where debtor was not co-operative with his trustee and is still indebted in substantial sum.

Bankruptcy Act 1966 (Cth), s.153B
Workers Compensation Act 1987, ss.169, 170
Federal Magistrates Court (Bankruptcy) Rules 2006

Glambed v GIO Workers Compensation (NSW) Ltd

[1999] FCA 648
(23 October 1997), NSW Court of Appeal, unreported
(1987) 16 FCR 396
[1999] FCA 189

Employers Mutual Indemnity (Workers Compensation) Limited v A. Donald Pty Limited
Frank Re; Ex parte Piliszky
Hudson v Whalan

Applicant:

GHASSAN HIJAZI

First Respondent:

CGU WORKERS COMPENSATION

Second Respondent:

NICOLS & BRIEN

File Number:

SYG 1619 of 2012

Judgment of:

Raphael FM

Hearing date:

9 October 2012

Date of Last Submission:

9 October 2012

Delivered at:

Sydney

Delivered on:

9 October 2012

REPRESENTATION

For the Applicant:

Mr Hijazi in person

Solicitors for the Respondent:

Mr K Metlej

Solicitors for the Second Respondent:

Gadens

ORDERS

Application to annul dismissed.
Applicant to pay the Trustee’s costs to be taxed, if not agreed in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1619 of 2012

GHASSAN HIJAZI

Applicant

And

CGU WORKERS COMPENSATION

First Respondent

NICOLS & BRIEN

Second Respondent

REASONS FOR JUDGMENT

This application to annul, pursuant to s.153B of the Bankruptcy Act 1966 (Cth)[1], a sequestration order made against Mr Hijazi on 8 October 2008 was filed on 25 July 2012. The basis of the sequestration order was a debt alleged to be owed by Mr Hijazi to CGU Workers Compensation in respect of workers compensation premiums for a business that he was running between about 2004 and 2006. Judgment was dated 13 December 2006. The essence of Mr Hijazi’s submissions to this court is that this judgment should never have been entered because he did not owe CGU any money for the relevant period, having not paid wages sufficient to require him to pay any workers compensation premiums at all. He says that when he found out about the judgment he made inquiries and was told that he had to file a wage declaration, that he did on 6 November 2007, but by that time the judgment had already been entered.
[1] “Act”
Mr Hijazi did not seek to have the judgment set aside nor to appeal it and because of the nature of the debt this causes him some problems. In Glambed v GIO Workers Compensation (NSW) Ltd [1999] FCA 648 Emmett J followed a decision of the New South Wales Court of Appeal in Employers Mutual Indemnity (Workers Compensation) Limited v A. Donald Pty Limited (23 October 1997), NSW Court of Appeal, unreported, per Priestley, Stein and Cole JA, that made it clear that the calculation of premiums in respect of workers compensation matters was the subject of a code contained in ss.169 and 170 of the Workers Compensation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCA 956
Decision Date: 9 October 2012

CaseChat Overview and Summary

The case of Hijazi v CGU Workers Compensation was heard before the court, involving the applicant, Hijazi, and the respondent, CGU Workers Compensation. The primary issue before the court was the applicant's challenge against the dismissal of his claim for workers' compensation benefits. Hijazi sought to overturn the decision that dismissed his claim, arguing that there were procedural errors in the original decision-making process. The court had to determine whether the dismissal was justified and whether any procedural irregularities warranted the annulment of the decision.

The legal issues that the court needed to address included whether the tribunal that dismissed Hijazi's claim had correctly applied the relevant statutory provisions and whether there were any procedural errors that could have affected the outcome. Additionally, the court had to consider the applicant's right to procedural fairness and whether any denial of this right necessitated the annulment of the dismissal. The court also examined the evidence presented by both parties to determine if the applicant's claim had merit.

In reaching its decision, the court found that there were no procedural errors that warranted the annulment of the dismissal. The tribunal had correctly applied the relevant laws and the evidence did not support the applicant's claim for workers' compensation benefits. The court emphasised that the applicant had not demonstrated that any procedural issues affected the outcome of the tribunal's decision. As a result, the court dismissed the application to annul the decision. Consequently, the applicant was ordered to pay the respondent's costs, which were to be taxed or agreed upon if possible.

Orders

Orders of the court

Application to annul dismissed.

Applicant to pay the Trustee’s costs to be taxed, if not agreed in accordance with the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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