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From 1987 Act annotations
142B Proceedings before Commission on claim for compensation

applicant must name the employer ... Repudiating fund submission that originating process service on a dissolved uninsured corporate employer was an ancillary necessity for an applicant to proceed against the uninsured fund, Campbell CJ, in Carter v The Khamis Mushayt Armed Forces Hospital [1994] NSWCC 27; 10 NSWCCR 605: “The literal words of the subsection do not require effective, or indeed any, service. In my view once an application for determination has been filed naming the employer (as well as WorkCover) as a respondent the requirements of the subsection have been met”; quoted by Roche AP in Workers Compensation Nominal Insurer v Howard [2011] NSWWCCPD 37 (19 July 2011), the acting President also relying on consonant ratio of Neilson J in Hicks v Shane & Gary Burton Pty Ltd [2002] NSWCC 65, his Honour addressing the section's regulatory pair, forerunner of the 2010 Regulation cl 180: “... clearly envisages a non-existent company being named as a respondent in the proceedings which is what has occurred in the current matter and not requiring service upon a non-existent company, which, of course, would at any rate be an impossibility”, also rejecting fund argument the construction would encroach Federal corporations statute.

Mr Roche: “I do not believe that s 142B is ambiguous or obscure. On its terms, it does not require a deregistered company to be restored to the company registerbefore a worker can claim against the Nominal Insurer. If, however, it is considered that there is an ambiguity, I believe that the 2010 Regulation is part of a legislative scheme. Clause 180(c) was made under the express power in s 142A(2). The clause puts it beyond doubt that, in the circumstances of the present case, that is, where the employer 'named' by the applicant under s 142B is a corporation that has ceased to exist, the section is to be read 'as if it also provided that (in such a case) the application is not, subject to any rules of the court or the Commission, required to serve a copy of the application on that person'. There are no rules of the Commission that limit the terms of cl 180(c). It is nonsense to suggest that the clear intent of the legislation, as confirmed in the regulation, should be ignored. No valid reason has been advanced why that should be so”: Workers Compensation Nominal Insurer v Howard [2011] NSWWCCPD 37 (19 July 2011) at [52].

And further, at [55], the acting President: “The failure to have Diamond Grids restored to the company register creates no prejudice for Workcover or the Nominal Insurer. It is open to Workcover to have Diamond Grids restored to the register: Workcover Authority v Picton Truck & Trailer Repairs PL (dereg'd) [2004] NSWCA 371, which it would have to do if it sought to recover under s 145 the compensation, if any, it is ultimately ordered to pay Mr Howard. However, given the passage of time since Diamond Grids was deregistered, and given that Workcover has no entitlement to recover from the directors of Diamond Grids - because s 145A does not apply where the failure to obtain insurance occurred before 1 January 1996- there is no reason why Workcover would seek to restore Diamond Grids to the register.”

 

145 Employer or insurer to reimburse Insurance Fund

within a period specified in the notice ... The arbitrator quoted Interpretation Act 1987 (NSW) s 36 Reckoning of time, as well as 1987 WCA s 145 Employer or insurer to reimburse fund. Then [23]: “Firstly, I am not persuaded by the Applicant’s submissions that this Notice does not specify a time by which the Applicant must apply, because, in the view of the Applicant, the Notice and covering letter do not refer to section 145(3). I do not accept that the Notice must specifically invoke section 145(3) for it to be effective in specifying a time. It is clear on the face of the Notice that a time is specified. The Notice specifically refers to section 145(1) pursuant to which the Respondent has the power to serve such a notice and to specify a time for payment of amounts paid from the fund. The fact that it does not also refer to section 145(3) when stating that ‘you have 28 days from the date of service to file an application for review’ is, in my view, not determinative of the issue. The Notice makes it clear that the recipient of the notice had 28 days from the date of service to file an application. That is sufficient,” and cited Stuart Haines &c v Workcover[2006] NSW WCC 96, per Mr McManamey, Arb, in matching rationes. Because the statutes did not refer to “clear” or “full” days, Ms Duncombe said [29]: “Without these words of qualification, I have come to the view that the phrase ‘you have 28 days from the date of service’ means that an application should be made on or before the 28th day following the date of service. The date of service should not be counted. This means that the 28th day falls on 2 March 2009”: Inno Architecture &c v Workcover [2009] WCC 327.Also>>

 


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