EMPLOYER'S MUTUAL INDEMNITY (WORKERS COMPENSATION) LTD v A DONALD PTY LTD [1997] NSWCA 102

EMPLOYER'S MUTUAL INDEMNITY (WORKERS COMPENSATION) LTD v A DONALD PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, COLE and STEIN JJA 15 October 1997, 23 October 1997 [1997] NSWCA 102

WORKERS compensation premium - fixed by insurer having regard to its prior claims assessment — employer dissatisfied with claims assessment — review by WorkCover Authority — jurisdiction of District Court to itself determine reasonableness of claims assessment.

Held No such jurisdiction. Workers Compensation Act 1987, Pt7 considered. Priestley JA I agree with Cole JA.

Cole JA This is an appeal by Employer's Mutual Indemnity (Workers Compensation) Ltd ("EMI"), from a decision of Mahoney DCJ in which his Honour entered a verdict in favour of the appellant in the sum of $13,859.82. The appellant had sued the respondent for a workers' compensation policy premium in respect of the financial year ended 30 June 1991 (the 1991 year) in the sum of $34,459.59. That sum had been calculated having regard to a "cost of claims" experience of $107,005 in respect of the 1991 year. The sum of $107,005 related to workers' compensation claims by two alleged workers of A Donald Pty Ltd ("Donald"), namely Mr Keist which was assessed at $89,505 and Mr Attard assessed at $17,500!. (The judgment refers to the Keist assessment as being $89,975, and I will do likewise). The proceedings to recover that workers' compensation premium were commenced in the District Court on 8 January 1992.

In defending that claim the essential issue raised by Donald, by way of defence, and by way of a cross-claim, was that the premium should not have been calculated having regard to an assessment of the Keist claim in the sum of $89,975. That was said to be so because, as early as October 1990, EMI was aware that there was doubt regarding whether Mr Keist was an employee of Donald and thus fell within the workers' compensation policy, and further whether, in truth, he had injured himself at work. Investigators employed by EMI reported to that company on 9 October 1990: