Jamal v Workers Compensation Nominal Insurer [2023] NSWCA 4

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Jamal v Workers Compensation Nominal Insurer [2023] NSWCA 4 Hearing dates: 20 October 2022 Decision date: 03 February 2023 Before: Macfarlan JA at [1]; White JA at [2]; Mitchelmore JA at [93] Decision: Appeal dismissed with costs Catchwords: WORKERS COMPENSATION – uninsured corporate employer – culpable director – employer deregistered after service of notices under s 145(1) of the Workers Compensation Act 1987 (NSW) – uncontentious that employer contravened s 155(1) of the Workers Compensation Act by failing to obtain a workers compensation insurance policy for injuries occasioned to employees – appellant was sole director of employer at time of contravention – where respondent sought to recover payments granted to injured employer from appellant as a "culpable director" under s 145A(1) of the Workers Compensation Act – where primary judge found that appellant actually knew of circumstances amounting to contravention for the purposes of defeating reliance on s 145A(5)(a) of the Workers Compensation Act – where primary judge also found that appellant was in a position to influence employer's conduct in relation to the contravention so as to defeat reliance on s 145A(5)(b) of the Workers Compensation Act – whether primary judge erred in finding that the appellant actually knew of the facts amounting to contravention – whether primary judge erred in finding that appellant was in a position to influence employer's conduct in relation to the contravention – whether primary judge erred in quantifying amount recoverable from appellant – each ground of appeal dismissed, with costs APPEALS – evidence – credibility findings – functions and obligations of an appellate court – basis and scope for appellate intervention upon trial judge's findings of credit WORDS AND PHRASES – "knowledge" in s 145A(5)(a) of the Workers Compensation Act Legislation Cited: Occupational Health and Safety Act 2000 (NSW), s 26(1)(a) Trade Practices Act 1975 (Cth), ss 52, 75B Workers Compensation Act 1987 (NSW), ss 145, 145A, 155, 155AA, 174 Cases Cited: Chevalley v Industrial Court of New South Wales (2011) 82 NSWLR 634; [2011] NSWCA 357 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29 Johnson v Youden [1950] 1 KB 544 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Pereira v Director of Public Prosecutions (1988) 63 ALJR 1; [1988] HCA 57 White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277 WorkCover Authority of New South Wales v Edwin Tucker and George MacDonald [2012] NSWDC 226 Workers Compensation Nominal Insurer v Brasnovic [2013] NSWDC 131 Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65 Category: Principal judgment Parties: Noora Jamal (Appellant) Workers Compensation Nominal Insurer (Respondent) Representation: Counsel: T G G Bateman (Appellant) D C Price with M Thompson (Respondent)