Jamal v Workers Compensation Nominal Insurer - [2023] NSWCA 4

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Jamal v Workers Compensation Nominal Insurer [2023] NSWCA 4
Hearing dates: 20 October 2022
Decision date: 03 February 2023
Before: Macfarlan JA at [1];
White JA at [2];
Mitchelmore JA at [93]
Decision:
Appeal dismissed with costs

Catchwords:
WORKERS COMPENSATION – uninsured corporate employer – culpable director – employer deregistered after service of notices under s 145(1) of the Workers Compensation Act 1987 (NSW) – uncontentious that employer contravened s 155(1) of the Workers Compensation Act by failing to obtain a workers compensation insurance policy for injuries occasioned to employees – appellant was sole director of employer at time of contravention – where respondent sought to recover payments granted to injured employer from appellant as a “culpable director” under s 145A(1) of the Workers Compensation Act – where primary judge found that appellant actually knew of circumstances amounting to contravention for the purposes of defeating reliance on s 145A(5)(a) of the Workers Compensation Act – where primary judge also found that appellant was in a position to influence employer’s conduct in relation to the contravention so as to defeat reliance on s 145A(5)(b) of the Workers Compensation Act – whether primary judge erred in finding that the appellant actually knew of the facts amounting to contravention – whether primary judge erred in finding that appellant was in a position to influence employer’s conduct in relation to the contravention – whether primary judge erred in quantifying amount recoverable from appellant – each ground of appeal dismissed, with costs
APPEALS – evidence – credibility findings – functions and obligations of an appellate court – basis and scope for appellate intervention upon trial judge’s findings of credit
WORDS AND PHRASES – “knowledge” in s 145A(5)(a) of the Workers Compensation Act

Legislation Cited:
Occupational Health and Safety Act 2000 (NSW), s 26(1)(a)
Trade Practices Act 1975 (Cth), ss 52, 75B
Workers Compensation Act 1987 (NSW), ss 145, 145A, 155, 155AA, 174

Cases Cited:
Chevalley v Industrial Court of New South Wales (2011) 82 NSWLR 634; [2011] NSWCA 357
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29
Johnson v Youden [1950] 1 KB 544
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Pereira v Director of Public Prosecutions (1988) 63 ALJR 1; [1988] HCA 57
White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277
WorkCover Authority of New South Wales v Edwin Tucker and George MacDonald [2012] NSWDC 226
Workers Compensation Nominal Insurer v Brasnovic [2013] NSWDC 131
Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65

Category: Principal judgment
Parties: Noora Jamal (Appellant)
Workers Compensation Nominal Insurer (Respondent)
Representation:
Counsel:
T G G Bateman (Appellant)
D C Price with M Thompson (Respondent)
Solicitors:
Bridges Lawyers (Appellant)
Turks Legal (Respondent)

File Number(s): 2022/78092
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

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: [2023] NSWCA 4
Decision Date: 03 February 2023

CaseChat Overview and Summary

The appeal concerned a claim by the Workers Compensation Nominal Insurer against Mr Jamal, the sole director of a deregistered corporate employer. The dispute arose from the employer's failure to obtain a workers compensation insurance policy, a contravention of section 155(1) of the *Workers Compensation Act 1987* (NSW). The Nominal Insurer sought to recover payments made to an injured employee from Mr Jamal as a "culpable director" under section 145A(1) of the Act.

The primary legal issues before the court were whether the primary judge erred in finding that Mr Jamal actually knew of the circumstances amounting to the contravention, for the purposes of defeating his reliance on section 145A(5)(a) of the Act, and whether the primary judge erred in finding that Mr Jamal was in a position to influence the employer's conduct in relation to the contravention, so as to defeat his reliance on section 145A(5)(b) of the Act. The court also considered whether the primary judge erred in quantifying the amount recoverable from Mr Jamal.

The court applied the principles governing appellate intervention in a trial judge's findings of fact, particularly concerning credibility. The court found no error in the primary judge's findings that Mr Jamal possessed the requisite knowledge of the facts constituting the contravention and that he was in a position to influence the employer's conduct. These findings were based on the primary judge's assessment of the evidence and Mr Jamal's credibility. Consequently, the grounds of appeal were dismissed.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Jamal v Workers Compensation Nominal Insurer [2023] NSWCA 4
Hearing dates:	20 October 2022
Decision date:	03 February 2023
Before:	Macfarlan JA at [1]; White JA at [2]; Mitchelmore JA at [93]
Decision:	Appeal dismissed with costs
Catchwords:	WORKERS COMPENSATION – uninsured corporate employer – culpable director – employer deregistered after service of notices under s 145(1) of the Workers Compensation Act 1987 (NSW) – uncontentious that employer contravened s 155(1) of the Workers Compensation Act by failing to obtain a workers compensation insurance policy for injuries occasioned to employees – appellant was sole director of employer at time of contravention – where respondent sought to recover payments granted to injured employer from appellant as a “culpable director” under s 145A(1) of the Workers Compensation Act – where primary judge found that appellant actually knew of circumstances amounting to contravention for the purposes of defeating reliance on s 145A(5)(a) of the Workers Compensation Act – where primary judge also found that appellant was in a position to influence employer’s conduct in relation to the contravention so as to defeat reliance on s 145A(5)(b) of the Workers Compensation Act – whether primary judge erred in finding that the appellant actually knew of the facts amounting to contravention – whether primary judge erred in finding that appellant was in a position to influence employer’s conduct in relation to the contravention – whether primary judge erred in quantifying amount recoverable from appellant – each ground of appeal dismissed, with costs APPEALS – evidence – credibility findings – functions and obligations of an appellate court – basis and scope for appellate intervention upon trial judge’s findings of credit WORDS AND PHRASES – “knowledge” in s 145A(5)(a) of the Workers Compensation Act
Legislation Cited:	Occupational Health and Safety Act 2000 (NSW), s 26(1)(a) Trade Practices Act 1975 (Cth), ss 52, 75B Workers Compensation Act 1987 (NSW), ss 145, 145A, 155, 155AA, 174
Cases Cited:	Chevalley v Industrial Court of New South Wales (2011) 82 NSWLR 634; [2011] NSWCA 357 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29 Johnson v Youden [1950] 1 KB 544 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Pereira v Director of Public Prosecutions (1988) 63 ALJR 1; [1988] HCA 57 White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277 WorkCover Authority of New South Wales v Edwin Tucker and George MacDonald [2012] NSWDC 226 Workers Compensation Nominal Insurer v Brasnovic [2013] NSWDC 131 Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65
Category:	Principal judgment
Parties:	Noora Jamal (Appellant) Workers Compensation Nominal Insurer (Respondent)
Representation:	Counsel: T G G Bateman (Appellant) D C Price with M Thompson (Respondent) Solicitors: Bridges Lawyers (Appellant) Turks Legal (Respondent)
File Number(s):	2022/78092
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil