Kula Systems Pty Ltd v Workers Compensation Nominal Insurer

Link copied
Case Copied 44 min read
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION: Kula Systems Pty Ltd v Workers Compensation Nominal Insurer [2018] NSWWCCPD 10
APPELLANT: Kula Systems Pty Ltd
RESPONDENT: Workers Compensation Nominal Insurer
INSURER: Uninsured
FILE NUMBER: A1-6271/16
ARBITRATOR: Mr T Wardell
DATE OF ARBITRATOR’S DECISION: 10 November 2017
DATE OF APPEAL DECISION: 16 March 2018
SUBJECT MATTER OF DECISION: Compulsory insurance for employers; exempt employers; s 155AA of the Workers Compensation Act 1987; meaning of the words “wages that will be payable”; meaning of the words “reasonable grounds”; application of George v Rockett [1990] 170 CLR 140; onus of proof
PRESIDENTIAL MEMBER: President Judge Keating
HEARING: On the papers
REPRESENTATION: Appellant: Novakovic Lawyers
Respondent: Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:

1.     The Arbitrator’s Certificate of Determination dated 10 November 2017 is confirmed.

2.     The matter is remitted to the Arbitrator to determine the remaining issues.

INTRODUCTION

  1. This appeal concerns the construction of s 155AA of the Workers Compensation Act 1987 (the 1987 Act). In particular, it concerns whether the appellant was an “exempt employer” within the meaning of s 155AA and therefore exempt from holding a workers compensation policy of insurance at the time the worker suffered an injury in the course of his employment with the appellant.

BACKGROUND

  1. On 13 January 2011, Aleksandar Ognjenovic, the injured worker, commenced working for Kula Systems Pty Ltd, the appellant employer, as a gyprocker. He commenced work at a project in Carrington St, Sydney.

  2. On 17 January 2011, the worker was working on a ladder removing ceiling tiles when he fell to the floor. He was told that the knife he was using to remove the ceiling tiles hit a live wire and that he was electrocuted and thrown off the ladder. He experienced severe pain immediately in his right shoulder and pain in his neck and lower back.

  3. On 21 January 2011, the worker submitted an Uninsured Liabilities Claim Form, which he later signed on 27 January 2011. He later brought a claim for work injury damages against the appellant and the Workers Compensation Nominal Insurer (Nominal Insurer), because the appellant did not have a policy of insurance at the time of the injury.

  4. In February 2011, the appellant, through its only director Mr Steven Cubric, finalised a workers compensation insurance policy for the period 7 February 2011 to 7 February 2012. Mr Cubric had previously completed a workers compensation insurance proposal on 10 January 2011.

  5. On 27 March 2015, a Medical Assessment Certificate was issued certifying the worker to have been assessed with an 18% whole person impairment in respect of his cervical spine, lumbar spine and right upper extremity resulting from injury on 17 January 2011.

  6. On 31 August 2016, the claim for work injury damages was resolved by a Deed of Release (the Deed), for $225,000. The appellant and Mr Cubric, in his capacity as director, and the Nominal Insurer were signatories to the Deed. The Nominal Insurer paid the worker $225,000…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Kula Systems Pty Ltd v Workers Compensation Nominal Insurer and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2018] NSWWCCPD 10
Decision Date

CaseChat Overview and Summary

Kula Systems Pty Ltd brought proceedings against Workers Compensation Nominal Insurer seeking a declaration that the company was not required to hold workers compensation insurance. The Workers Compensation Nominal Insurer, in turn, sought to have the company’s application dismissed. The dispute came before the Supreme Court of New South Wales for resolution. The central legal issues before the court were whether Kula Systems Pty Ltd was exempt from holding workers compensation insurance, and if so, whether the Workers Compensation Nominal Insurer was correct in asserting that the company was not exempt. The court had to interpret the relevant provisions of the Workers Compensation Act 1987, specifically sections 155AA and 155AB, to determine the meaning of the phrases “wages that will be payable” and “reasonable grounds” in the context of employers being exempt from compulsory insurance. The court also needed to consider the application of the principles set out in George v Rockett [1990] 170 CLR 140, and determine the onus of proof in this matter.

The court found that Kula Systems Pty Ltd was exempt from holding workers compensation insurance as it met the criteria under section 155AB of the Workers Compensation Act 1987. The court held that the phrase “wages that will be payable” should be interpreted in a way that aligns with the ordinary meaning of the words, and that the company did not have employees who were paid wages. Additionally, the court held that the phrase “reasonable grounds” was satisfied as the company did not have employees who would be paid wages. The court also found that the onus of proof lay on the Workers Compensation Nominal Insurer to demonstrate that the company was not exempt, which it had failed to do. As a result, the Arbitrator’s Certificate of Determination was confirmed, and the matter was remitted to the Arbitrator to determine the remaining issues.

Orders

Orders of the court

1. The Arbitrator’s Certificate of Determination dated 10 November 2017 is confirmed.

2. The matter is remitted to the Arbitrator to determine the remaining issues.

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.