INSURERS GUARANTEE FUND - NEM GENERAL INSURANCE ASSOCIATION (IN LIQ) v MANUFACTURERS MUTUAL INSURANCE WORKERS COMPENSATION LTD and ORS [1996] NSWCA 264

INSURERS GUARANTEE FUND - NEM GENERAL INSURANCE ASSOCIATION (IN LIQ) v MANUFACTURERS MUTUAL INSURANCE WORKERS COMPENSATION LTD and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and COLE JJA 16 April 1996, 14 August 1996 [1996] NSWCA 264

WORKERS COMPENSATION ACT — contribution between insurers — s22(1A) — The Council of Sutherland Shire vy Baltica General Insurance Company Ltd followed — absence of power to reopen award — court applies current law on rehearing — jurisdiction to make award.

Priestley JA The facts of this case are set out in the reasons of Cole JA which I have had the benefit of reading in draft. Also set out in his reasons are the arguments upon which the appellant found itself obliged to rely in the particular circumstances of this case. The situation was the result of the succession of amendments made to the Workers Compensation Act 1987 to make it clear that the Compensation Court had both appropriate powers to apportion the monetary consequences of liability to workers under the Act between relevant employers, and also appropriate powers of apportionment between insurers of employers. The efforts of the legislature culminated in amendments made by Acts 30 and 89 of 1995.

Appellants in a number of cases sought to say that even these amendments had not resulted in the Compensation Court's having the apportionment power, but submissions to this effect were rejected by this court in Council of Shire v Baltica General Insurance Co Ltd and Ors, (unreported, 28 March 1996), and associated cases.

The consequence of those decisions is that if, on the basis that Burke CCJ had no apportionment power at the time he purported to exercise it, and the attacked orders were set aside, this court in exercising jurisdiction under s75A of the Supreme Court Act 1970 would, for the reasons indicated by Cole JA, arrive at the same conclusion as did Burke CCJ.