MANUFACTURERS MUTUAL INSURANCE LTD v NAM MANUFACTURERS MUTUAL INSURANCE LTD v NEW WORLD FABRICATIONS PTY LTD [1988] NSWCA 91

MANUFACTURERS MUTUAL INSURANCE LID v NAM MANUFACTURERS MUTUAL INSURANCE LTD v NEW WORLD FABRICATIONS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MCHUGH and CLARKE JJA 4, 5 May 1988, 12 October 1988 [1988] NSWCA 91

WORKERS COMPENSATION — statutory employer's indemnity insurer consented to award in Compensation Court in ignorance (not induced by fraud) of fact that work related injury occurred before insurer came on the risk — application to Compensation Court to reopen award on ground of fresh evidence dismissed — appeal to Court of Appeal withdrawn and dismissed — appeal to Court of Appeal against primary judge's refusal to declare that insurer not bound to indemnify employer dismissed on ground that such a declaration would be no answer to application by worker to enforce award. CONTEMPT OF COURT — semble, obiter, that termination of payments by insurer in order to secure resolution of an award to which insurer had consented by mistake would not constitute a contempt of court. ORDER Each appeal is dismissed with costs.

Samuels JA On 19 May 1982 a company called New World Fabrications Pty Limited ("New World") was incorporated. However, before incorporation its promoters had carried on its business of steel fabrication, and employed the second respondent, Jun Hee Nam ("the worker'), who on 13 May 1982 sustained a work related injury of which notice was given to those who were then employing him.

It is to be assumed that on 13 May the promoters had no employers' indemnity insurance, because, shortly after noon on 14 May 1982, a telephone request for workers' compensation cover for New World, the first respondent, was made by insurance brokers, Forbes Dodds (Insurance) pty Limited ("the brokers") to Manufacturers' Mutual Insurance Limited ("the appellant"). A cover note was issued, expiring at 4 pm on 14 June 1982, and on 28 June 1982 a proposal was signed by the brokers on behalf of New World and submitted to and accepted by the appellant which on 3 September 1982 issued a statutory employers' indemnity policy in the form prescribed by the Workers' Compensation Act 1926 ("the 1926 Act") to commence on 14 May 1982 and to terminate on | May 1983 subject to renewal. In the proceedings before Campbell J, from whose order dismissing the appellant's summons this appeal comes, fairly detailed material was led in proof of the issue of the policy. His Honour refers to it more fully than I. It is sufficient for me to say that there seems to be no doubt that a policy in the statutory form was issued by the appellant to New World; and the contrary was not asserted.