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Employer, incorrectly named

Chhong Heng Taing t/as The Arcade Pharmacy v Gauci (No 2) [2011] NSWWCCPD 74. Roche DP.

194. The incorrect identification of the employer was no more than a misdescription or misnomer. The amendment to name Chhong Heng Taing t/as The Arcade Pharmacy did not involve the substitution of a party, but merely the correction of the earlier misnomer.

What was done was consistent with the approach endorsed by the High Court in Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231, see also Bainbridge-Hawker v The Minister of State for Trade and Customs (1958) 99 CLR 521 and Halsbury’s Laws of Australia.

The misdescription of the employer did not invalidate the proceedings.

In any event, as noted above, if the amendment amounted to the substitution of a new party, Pt 18 r 4(4) applies, and all things done in the proceedings before the making of the order have effect in relation to the new party as if that party were the old party.

195. The MAC issued by Dr Harvey-Sutton is conclusively presumed to be correct as to the degree of permanent impairment of the worker as a result of an injury (s 326(1)(a) of the 1998 Act). As all things done in the proceedings before the amendment have effect as if Mr Taing was a party from the start (as he in substance was – through his insurer), there is no ground for requiring a further medical assessment by a different AMS.

196. It is important to note that, where the employer is insured, that insurer conducts the proceedings in the Commission.

It is the insurer that has the statutory obligation to accept or reject a claim.

It is the insurer that has the carriage of the defence of the claim.

If an employer, being a natural person, dies, the proceedings do not lapse: s 162 of the 1987 Act.

The Commission may, on application by a worker, declare that the employer has entered into a contract with an insurer in respect of liability under the Act and any award shall be deemed to be against the employer.

It follows that, while there may be instances where the identity of the employer is relevant, in most cases, including the present case, it will not be of crucial importance.

The insurer in the present matter was always Guild Insurance. It was always aware of the identity of its insured and it never raised any objection when the claim was first made.

Would it have seriously been suggested that the MAC was invalid if a mistake had been made in the worker’s name? Provided the person examined was the correct claimant for compensation, the answer is obvious. It makes no difference that a mistake was made in the employer’s name.

197. Proceedings in the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits: s 354(1) of the 1998 Act, and the Commission is to act according to equity, good conscience and the substantial merits of the case: s 354(3).

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198. The identity of the employer in this matter was never in doubt. The standard practice in the Commission, as it was in the Compensation Court before it, is that, where there is no doubt about the identity of an employer but a misdescription has occurred, an amendment is made by consent at the first opportunity.

As Heydon JA  observed in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346, (2001) 53 NSWLR 116 at [26] –[31] “the conduct of litigation as if it were a card game in which opponents never see some of each other’s cards until the last moment is out of line with modern trends”.

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200. Finally, it is arguable that the incorrect naming of the appellant was an “obvious error” that the Registrar could have corrected under s 325(3) of the 1998 Act. As neither party has addressed on the applicability of this provision, I do not base my decision on it.

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