WorkCover Authority of New South Wales (on behalf of the Workers Compensation Nominal Insurer) v Sadler

In the case of the WorkCover Authority of New South Wales, acting on behalf of the Workers Compensation Nominal Insurer, against Sadler, the dispute arose in the New South Wales Civil and Administrative Tribunal. The matter involved an application for review of a decision concerning the insurer's liability for compensation claims, with the core issue being whether the insurer had provided adequate proof of non-insurance to avoid liability.

The primary legal issue before the tribunal was the extent of the burden of proof required by the insurer to demonstrate that a particular individual was not insured under the workers compensation scheme at the relevant time. This involved determining whether the insurer had to provide a "positive" proof of non-insurance or if it was sufficient to show that it had made reasonable efforts to locate evidence of insurance. The tribunal was also tasked with interpreting the role of the Nominal Insurer in the context of the Workers Compensation scheme and how it should function as a model litigant.

The tribunal considered the statutory framework governing workers compensation and the obligations of the Nominal Insurer. It found that the insurer's approach to proving non-insurance was insufficient as it did not adequately demonstrate that it had made reasonable efforts to locate any evidence of insurance. The tribunal emphasised that the insurer, acting as a model litigant, should have a higher standard of diligence and thoroughness in its investigations. Consequently, the tribunal revoked part of the Arbitrator’s earlier determination, asserting that the insurer had not met its burden of proof.

The tribunal made a specific determination that the insurer must provide more robust evidence of its efforts to locate insurance records to avoid liability. This ruling underscores the importance of the insurer's proactive and diligent approach in fulfilling its statutory obligations. The tribunal's decision sets a clear precedent for the standards expected of the Nominal Insurer in future cases involving proof of non-insurance.