SINANIAN v EKS CARPENTRY PTY LTD AND ANOR [1997] NSWCA 288

SINANIAN v EKS CARPENTRY PTY LTD AND ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COMPENSATION COURT

MASON P, BEAZLEY JA and GROVE AJA 11 April 1997, 5 September 1997 [1997] NSWCA 288

Workers Compensation — s277(1) offence — failure to insure — whether precludes recovery — illegality — public policy — proportionality

The appellant was driving a motor vehicle in the course of his work when it was involved an accident, causing catastrophic injuries. His employer, EKS Carpentry Pty Ltd, was uninsured. The appellant was the governing mind of that company.

The issue in the case is whether the appellant's involvement in the failure to insure the company in breach of s277(1) of the Workers Compensation Act 1987 disentitled the appellant from claiming under the Uninsured Liability and Indemnity Scheme. The injury occurred before s277(1) was amended by the insertion of s4A which precludes recovery but only applies to injuries suffered after 1 January 1996.

Held: Appeal allowed

1 There is a need to consider the proportionality between the forfeiture sought and the seriousness of the illegality involved. See Nelson v Nelson (1995) 184 CLR 538.

2 s277 embraces a vice range of relatively passive conduct which suggests that Parliament did not intend breach of s277 to give rise to catastrophic civil consequences.

3 Grove AJA dissenting - s144(3) vests the Compensation Court with discretion to make such orders as it thinks fit. The vesting of such a discretion provides an indication that the scope and purpose of the statute does not bar the appellant's claim absolutely. The failure to exercise the discretion means that the matter should be remitted.

Andrews v Nominal Defendant (No 2) (1965) 66 SR(NSW) 85, distinguished. Quinn v Boomerang Interstate Transport Pty Ltd, Compensation Court, No 1078/95, unreported 28 October 1988, not followed.