Workers Compensation Nominal Insurer v Jamal - [2022] NSWDC 10

District Court

New South Wales

Medium Neutral Citation: Workers Compensation Nominal Insurer v Jamal [2022] NSWDC 10
Hearing dates: 28 – 29 October, 16 November 2021; submissions to 23 December 2021
Date of orders: 22 February 2022
Decision date: 22 February 2022
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Order:
(1) Judgment for the plaintiff for $258,565.75 with liberty to apply in relation to interest and/or costs.
(2) Exhibits retained until further order.

Catchwords:
WORKERS COMPENSATION – company fails to take out workers compensation insurance contrary to s 155(1) of the Workers Compensation Act 1987 – application by the Workers Compensation Nominal Insurer to reimburse the Insurance Fund for payments made to an injured worker – whether the company was an exempt employer – whether the defendant (the sole director of the company) was a culpable director – whether the defendant was not in a position to influence the conduct of the company in relation to the contravention – whether the District Court has jurisdiction to hear and determine these issues - quantum – whether the asserted deficiencies of notices served under the Act limited the defendant’s liability

Legislation Cited:
Evidence Act 1995 (NSW) s136
Factories Act 1833 (UK)
Workers Compensation Act 1987 (NSW) ss 140, 145, 145A, 154D, 155, 155A and 155AA
Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 105

Cases Cited:
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Coombs v Workcover Authority of NSW [2014] NSWSC 1707
ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
George v Rockett [1990] HCA 26; 170 CLR 104
Jones v Dunkel (1959) 101 CLR 298
Kula Systems Pty Ltd v Workers Compensation Nominal Insurer [2018] NSWSCCPD 10
Raniere Nominees Pty Ltd v Daley [2006] 67 NSWLR 417
Sabanyagam v St George Bank Limited [2016] NSWCA 145
SAS Corporation v Miles (2018) 265 CLR 137
Savoy v Insurance and Care NSW [2020] NSWSC 133
Teofilo v State of New South Wales [2007] NSWSC 767
WorkCover Authority of New South Wales v Edwin Tucker and George MacDonald [2012] NSWDC 226
WorkCover Authority of New South Wales v Picton Truck & Trailer Repairs Pty Ltd (De-registered) & Anor [2004] NSWCA 371
WorkCover Authority of New South Wales v Picton Truck & Trailer Repairs Pty Ltd (De-Registered) & Anor (2004) 22 ACLC 1517; 51 ACSR 1517
WorkCover Authority of NSW v Mackley [2006] NSWCA 204
Workers Compensation Nominal Insurer v Brasnovic [2013] NSWDC 131

Texts Cited:
Friedrich Engels, The Condition of the Working Class in England, 1845, at 165
Neil Gunningham, Safeguarding the Worker (Law Book Co, 1984) at 48.
The Age, “The industrial evils of the old world” (The Age, 16 June 1879)

Category: Principal judgment
Parties: Plaintiff:
Workers Compensation Nominal Insurer
Defendant:
Noora Jamal (formerly known…

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: [2022] NSWDC 10
Decision Date: 22 February 2022

CaseChat Overview and Summary

In Workers Compensation Nominal Insurer v Jamal, the Workers Compensation Nominal Insurer sought reimbursement from the defendant for payments made to an injured worker, following the defendant’s company’s failure to obtain workers compensation insurance in breach of s 155(1) of the Workers Compensation Act 1987. The defendant was the sole director of the company that employed the injured worker. The court was required to determine whether the company was an exempt employer, whether the defendant was a culpable director, whether the defendant was in a position to influence the conduct of the company in relation to the contravention, and whether the court had jurisdiction to hear and determine these issues. The court also had to consider the quantum of the reimbursement and whether the asserted deficiencies of the notices served under the Act limited the defendant’s liability.

The court found that the company was not an exempt employer and that the defendant was a culpable director. The defendant was in a position to influence the conduct of the company in relation to the contravention. The court held that it had jurisdiction to hear and determine these issues. The court found that the asserted deficiencies of the notices served under the Act did not limit the defendant’s liability. The court ordered judgment for the plaintiff for $258,565.75 with liberty to apply in relation to interest and/or costs. Exhibits were retained until further order.

Orders

Orders of the court

Order:

(1) Judgment for the plaintiff for $258,565.75 with liberty to apply in relation to interest and/or costs.

(2) Exhibits retained until further order.

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:	Workers Compensation Nominal Insurer v Jamal [2022] NSWDC 10
Hearing dates:	28 – 29 October, 16 November 2021; submissions to 23 December 2021
Date of orders:	22 February 2022
Decision date:	22 February 2022
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Order: (1) Judgment for the plaintiff for $258,565.75 with liberty to apply in relation to interest and/or costs. (2) Exhibits retained until further order.
Catchwords:	WORKERS COMPENSATION – company fails to take out workers compensation insurance contrary to s 155(1) of the Workers Compensation Act 1987 – application by the Workers Compensation Nominal Insurer to reimburse the Insurance Fund for payments made to an injured worker – whether the company was an exempt employer – whether the defendant (the sole director of the company) was a culpable director – whether the defendant was not in a position to influence the conduct of the company in relation to the contravention – whether the District Court has jurisdiction to hear and determine these issues - quantum – whether the asserted deficiencies of notices served under the Act limited the defendant’s liability
Legislation Cited:	Evidence Act 1995 (NSW) s136 Factories Act 1833 (UK) Workers Compensation Act 1987 (NSW) ss 140, 145, 145A, 154D, 155, 155A and 155AA Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 105
Cases Cited:	Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Coombs v Workcover Authority of NSW [2014] NSWSC 1707 ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 George v Rockett [1990] HCA 26; 170 CLR 104 Jones v Dunkel (1959) 101 CLR 298 Kula Systems Pty Ltd v Workers Compensation Nominal Insurer [2018] NSWSCCPD 10 Raniere Nominees Pty Ltd v Daley [2006] 67 NSWLR 417 Sabanyagam v St George Bank Limited [2016] NSWCA 145 SAS Corporation v Miles (2018) 265 CLR 137 Savoy v Insurance and Care NSW [2020] NSWSC 133 Teofilo v State of New South Wales [2007] NSWSC 767 WorkCover Authority of New South Wales v Edwin Tucker and George MacDonald [2012] NSWDC 226 WorkCover Authority of New South Wales v Picton Truck & Trailer Repairs Pty Ltd (De-registered) & Anor [2004] NSWCA 371 WorkCover Authority of New South Wales v Picton Truck & Trailer Repairs Pty Ltd (De-Registered) & Anor (2004) 22 ACLC 1517; 51 ACSR 1517 WorkCover Authority of NSW v Mackley [2006] NSWCA 204 Workers Compensation Nominal Insurer v Brasnovic [2013] NSWDC 131
Texts Cited:	Friedrich Engels, The Condition of the Working Class in England, 1845, at 165 Neil Gunningham, Safeguarding the Worker (Law Book Co, 1984) at 48. The Age, “The industrial evils of the old world” (The Age, 16 June 1879)
Category:	Principal judgment
Parties:	Plaintiff: Workers Compensation Nominal Insurer Defendant: Noora Jamal (formerly known…