Reported Decision : (2001) 22 NSWCCR 122 Compensation Court of New South Wales CITATION : Ato v G and D Goorkiz t/as Dolphin Day Care Centre and WorkCover Authority of NSW and Liverpool Insurance Brokers Pty Ltd [2001] NSWCC 148 Janet Ato v George and Diana Goorkiz t/as Dolphine Day Care Centre PARTIES : and WorkCover Authority of New South Wales and Liverpool Insurance Brokers Pty Ltd MATTER NUMBER(S) : 52543 of 1999 JUDGMENT OF: Neilson J at 1 Elements of Workers Compensation :- Insurance CATCHWORDS: Uninsured Liability and Indemnity Scheme Claim against broker WCA s 156A. Interpretation of section. "Representation" "any Insurance". LEGISLATION CITED: CASES CITED: DATES OF HEARING: 9/7/2001, 10/7/2001, 11/7/2001 EX TEMPORE JUDGMENT DATE : 07/11/2001 FOR APPLICANT: Applicant's Counsel was excused. FOR RESPONDENT: LEGAL REPRESENTATIVES: Mr T A Wardell instructed by A O Ellison appeared for the first respondent. Mr J P Deggens instructed by William Clinton appeared for the second respondent. Mr Turnbull instructed by McCabe Terrill appeared for the third party. JUDGMENT: 1. The applicant, Janet Ato, commenced proceedings in this Court by application for determination filed on 4 November 1999. She claimed compensation from Mr George and Mrs Diana Goorkiz, who trade as the Dolphin Day Care Centre at Bonnyrigg. Mrs Ato also claimed compensation from the WorkCover Authority of New South Wales as administrator of the Uninsured Liability and Indemnity Scheme. 2. The matter came on for hearing before me on Monday, when, after some negotiation, the applicant's case settled against the first and second respondents. I have made findings which would enable me to make a commutation order in the worker's favour, but final orders have not been made because my findings on the current application may affect the final form of orders to be made. 3. The current application is the application of Mr and Mrs Goorkiz by way of third party notice against their insurance brokers, Liverpool Insurance Brokers Pty Ltd. Mr and Mrs Goorkiz, "the respondents", claim to be entitled to an order pursuant to s 156A of the Workers Compensation Act 1987 on the ground that Liverpool Insurance Brokers Pty Ltd, the third party, had engaged in conduct that constituted a contravention of s 156A. 4. In early 1998, Mr and Mrs Goorkiz decided to set up a day care centre for minding infant children. A licence to conduct such a business was issued by the Department of Community Services permitting commencement of the business on 15 April 1998. The business in fact commenced, on the sworn evidence of Mr and Mrs Goorkiz, on 16 April 1998. Prior to commencing the business, it is obvious that there would have been a large number of matters to attend to in order to establish the business. One of those matters was the question of insurance. Mr Goorkiz had recommended to him by a workmate, Liverpool Insurance Brokers Pty Ltd, and he made an approach to the brokerage for its assistance in arranging necessary insurances. Mr Wally Turner, now deceased, attended upon the Goorkiz' for the purpose of arranging insurances. 5. The oral evidence of Mrs Goorkiz suggests that the first meeting with Mr Turner was on 27 March 1998, but a date endorsed on a document, Exhibit 3, indicates that the meeting was in fact held on 26 March 1998. According to Mr Goorkiz, he asked Mr Turner to arrange for public liability insurance, workers compensation insurance and any other insurance that was required for the purpose of the proposed business. Mr Goorkiz' evidence made it quite clear that he raised the question of workers compensation insurance. According to Mr Goorkiz and his wife, Mr Turner had a small spiral notepad in which he made notes. Mr Goorkiz said that he told Mr Turner that they needed public liability and workers compensation insurance and then he pulled out his notepad and started to make some notes. 6. Mr Goorkiz also says that he told Mr Turner that he was going to work casually in the business; that Mrs Diana Goorkiz was going to work full-time and he thought that he also said that three other teachers would be working at the day care centre from the opening day. Mr Goorkiz went on to say that he then asked what other insurances were needed and a number of other insurances were discussed by Mr and Mrs Goorkiz and Mr Turner. Mr Goorkiz gave this evidence as to how the meeting of 26 March 1998 concluded: I believe we were insured because I remember two times of asking Wally - he's trying to sell us - he is more interested selling us other insurance than those two other ones and I asked him just before I walked out, before I had to go, I said, `You got the workers comp? ' and he flicked through his little pad backward, forward, backward, forward then he says, `Oh, yes, I've got it here' . 7. Generated at that meeting was at least one document which has found its way into evidence as Exhibit 3. That has been dated at the top on each page, 26 March 1998. The document is entitled "Commercial Insurance Quotation/Placement Form", which indicates the document was made for the purposes of preparing a quotation. Under the heading "Public/Products Liability Details" have been written the matter "38 children 5 teachers 1 director" and then sums indicating $5 million and $10 million. That document refers only to quotations being obtained for public liability cover for the sums of $5 million and $10 million. It appears that the quoted premium for the larger cover was a sum of $1,070. That document comprises two pages. There is a second document which is Exhibit 4 which contains only the second page of the two pages that comprise Exhibit 3. 8. However, it is clear from Exhibit 4 that it refers to insurances other than public liability insurance. For example, there is a quotation for fire insurance in the sum of $80,000 for business interruption for a period of 52 weeks in the sum of $120,000, for all contents burglary cover for $30,000, a cover for money lost in the sum of $6,500, for a policy for glass at replacement value, for machinery breakdown cover in the sum of $15,000 for computer equipment and a further $15,000 for other electronic equipment. 9. The last line of each of Exhibits 3 and 4 has in bold a statement thus: Workers Comp Required - Y/No. Initial: ----------- Cover Issued: Y/N. Underwriter: Date: 10. Neither of those questions or directions, however one describes them, has been filled in. There was a second meeting which appears to have occurred on or about 30 March 1998 in which financial discussions took place, both as to the likely cost of insurances and a method of paying for the insurance by monthly instalments. That required the respondents' taking up finance from a financier who would pay the insurance and the respondents would reimburse the financier by monthly instalments. It appears that documentation to effect that plan was signed at the second meeting, which as I said, appears to have been on or about 30 March 1998. 11. At that meeting, Mr and Mrs Goorkiz said that Mr Turner produced a document showing the various covers that were proposed. It appears that the document was similar to what is now Exhibit T-3, which bears date 29 April 1998. That document bears some relationship, but does not completely accord with the contents of Exhibit 4, the Commercial Quote/Placement slip. The oral evidence of Mr and Mrs Goorkiz was that they discussed the various covers proposed in the document similar to Exhibit T-3 and requested that the document be amended to delete certain forms of cover. 12. On perusing Exhibits T-3 and T-2, I have reached the conclusion that they are identical documents. There was some confusion in the presentation of exhibits and it now is not clear to me whether T-3 which bears date 29 April 1998 was the cover as initially proposed by Mr Turner, or is that presented at the second meeting or whether it was that following upon the agreement reached at the third meeting. In any event, at the third meeting certain parts of a business pack policy or certain covers under that general policy were deleted at the request of Mr and Mrs Goorkiz. There would appear to have been at least a meeting on 20 May 1998 when Mrs Goorkiz executed the application for the business pack policy. It is common ground that at no time after the first meeting, that is, after the meeting of 26 March 1998, was workers compensation insurance discussed. Mr Goorkiz made it quite clear that he felt embarrassed about asking Mr Turner about it because he had raised it twice on the first occasion and he did not think it proper to continue to remind Mr Turner of what he had already said he would do. 13. It is clear, furthermore, from the evidence of Mr and Mr Goorkiz that they did not believe workers compensation insurance to be contained in the business pack policy, the proposal for which was signed by Mrs Goorkiz on 20 May 1998. 14. Mr Turner died some time in early 1999 of a heart attack. Accordingly, the evidence of Mr and Mrs Goorkiz about their dealings with Mr Turner must be approached circumspectly because of the obvious inability of their evidence to be tested against the instructions and evidence of Mr Turner. Having said that, I do accept the thrust of the evidence of Mr and Mrs Goorkiz. I do accept that they requested Mr Turner to organise workers compensation insurance for them. There are a number of things which point in that direction. The applicant, Mrs Janet Ato, is related to Mr Goorkiz. She appears to have developed symptoms in her shoulders whilst carrying out Christmas craft activities with the children at the day care centre immediately prior to Christmas 1998. Mr Goorkiz had noted that Mrs Ato was distressed. He gave this evidence: Question What happened when Mrs Ato started making complaints about her shoulder. Answer Because she is related to me I believe she was embarrassed of making a claim. So I said to Diana, `Contact Liverpool Insurance Brokers, the next day in the morning and ask Wally' - I would have done it but I was too busy with my other job - I said, `Contact them and get a claim form and hand it out to her and if she's really injured and she wants to claim, well, all she has to do, fill it in'. I believe she was embarrassed or something, so I said, `We'll get that out of the way'. 15. It then transpired that Mr Goorkiz found out from his wife that no workers compensation insurance had been arranged. He consulted a solicitor and arranged for workers compensation claim forms against the Uninsured Liability and Indemnity Scheme to be obtained and forwarded to Mrs Ato. If Mr Goorkiz knew that he was uninsured or if he knew that he had failed to make any arrangements to take out workers compensation insurance, one might be cynical enough to believe he would have tried to dissuade his relative, the applicant, from making a claim or at least immediately arrange workers compensation cover and try to have Mrs Ato delay making any complaints or delay seeking medical assistance until after there had been an insurer who had been at risk at least for a couple of weeks before the claim was made. 16. Indeed, Mr and Mrs Goorkiz acted with the utmost probity in "putting themselves in" to the WorkCover Authority as having been uninsured when, through their solicitor, they approached the Authority in order to obtain claim forms for Mrs Ato. This leads me to the conclusion that Mr and Mrs Goorkiz honestly believed that they were insured for their liability under the Workers Compensation Acts. Even if they had thought that they were insured and then discovered that they were not, they could have made attempts to soften the burden on them, again by immediately affecting cover and inducing the applicant to cease complaining until an insurer was at risk. They did not do that at all, but acted in an honourable and straightforward fashion. That further consideration leads me to accept them as being honest and truthful in what they have told me. 17. Evidence given by Mrs Goorkiz as to what happened after her husband told her to ring up the insurance brokers and obtain claim forms also has to me the ring of truth and I believe unlikely to have been fabricated. She gave this evidence: Question You said you rang Mr Turner. Answer Yes. Question What did you say to him. Answer I explained the situation. Question No, what did you say to him. Answer I said, `If we can have the name of our workers compensation insurance ' - and he said he will check it and he will get back to me. He was going to look it up in the file and get back to me. Question Was that the end of that conversation. Answer Yes. Question What was the next thing that happened. Answer About 10 minutes later, he rang up and he said, `Diana, you haven't got any workers compensation' , and I said `How could that be?' . He said, `I don't know what happened. I don't know how it slipped my mind. I don't know what happened" , and he said he's going to come and see me. I ask him in the same thing. I said, `If that's the case, I need the workers compensation right now, this minute' . He said he's going to organise it. HIS HONOUR Question You are speaking very quickly for me to get this down. Answer Sorry. Question He rang 10 minutes later and what did he say when he rang back 10 minutes later. Answer He said, `Diana, you haven't got - you are not insured. You haven't got any workers compensation' . He said, `I don't know how it slipped my mind, what happened, but you are not covered '. MR WARDELL Question I think you then went on to say that you did something about obtaining coverage. Answer Yes. Question Was there any further discussion in that telephone call about Mrs Ato's claim. Answer Yes. I said, `What's going to happen to us now? '. He said, `We'll fix it' . He said something about that the claim might be - the workers company might backdate it too and we might be able to cover. They're going to backdate it and cover it and we just left. That was the end of conversation. Question Did you have some further conversation with him. Answer Yes. He actually came to the centre about half an hour later because he said - `I'm on my way and I'm just going to come and see you' . When he came he was very upset and he kept saying, `I don't know what happened. I don't know how it happened and how I forgot about it' . 18. I accept that Mr Turner did forget to effect workers compensation insurance as requested by Mr and Mrs Goorkiz and which he, by implication, undertook to do. It is clear that at least three policies of insurance were proposed, one was workers compensation insurance, the other was public liability insurance and the other was general insurance for other aspects of the respondents' business. 19. The respondents could not obtain a licence from the Department of Community Services until they had in force a valid public liability policy. That was arranged by Mr Turner antecedent to the operation of the day care centre and indeed, antecedent to the issue of the licence. He arranged for documents relating to the public liability cover to be sent by facsimile transmission directly to the Department of Community Services. 20. Mr Turner clearly indicated to Mrs Goorkiz that he forgot to take out workers compensation insurance. He committed what a theologian would call a sin of omission. Unfortunately in this regard, this Court does not have jurisdiction generally in tort or in contract. The Court's jurisdiction relevant to the current matter is that granted by s 156A. As far as I am aware, the proper interpretation of s 156A is res integra. The section is in the following terms: (1) In this section: Insurance intermediary means a person who is an insurance intermediary within the meaning of the Insurance (Agents & Brokers) Act 1984 of the Commonwealth. Insurer means a person who carries on insurance business as defined in the Insurance Act 1973 of the Commonwealth. (2) An insurer or insurance intermediary must not make a representation with respect to any insurance (whether by means of an advertisement or otherwise) that could reasonably be expected to cause an employer to believe that the insurance is comprehensive for business needs, unless: (a) the insurance includes the insurance required by this Act or the 1988 Act, or (b) the representation includes a clear statement to the effect that the insurance does not include workers compensation insurance and that workers compensation insurance is compulsory for employers. (3) An insurer or insurance intermediary who contravenes this section is guilty of an offence. Maximum Penalty: 200 penalty units. (4) In any action under section 144, 145, 145A or 156 in respect of a failure by an employer to obtain or maintain in force a policy of insurance, the court hearing the action may order that a specified insurer or insurance intermediary be joined as a party in the proceedings if the court thinks that the insurer or insurance intermediary may be culpable in the matter. (5) An insurer or insurance intermediary is culpable in a matter if it appears that the insurer or insurance intermediary has engaged in conduct that constitutes a contravention of this section (whether or not the insurer or insurance intermediary has been prosecuted for or convicted of an offence in respect of the contravention) and that conduct caused or contributed significantly to the failure by the employer to obtain or maintain the insurance concerned. (6) In any proceedings in which an insurer or insurance intermediary is joined as party under this section the court hearing the proceedings may, if satisfied that the insurer or insurance intermediary is culpable in the matter, order that the insurer or insurance intermediary is to be jointly and severally liable with any other party in respect of any amount ordered to be paid by that other party in the proceedings or is to be separately liable, in place of that other party, as the whole or a specified part of any amount that the other party might be ordered to pay in the proceedings. (7) A person is not liable to be convicted of an offence under both this section and the equivalent provision of the 1998 Act in respect of the same act or omission. 21. The current matter constitutes the worker's appeal against the Authority's decision with respect to her claim for workers compensation pursuant to s 144 of the Workers Compensation Act 1987. Therefore, pursuant to s 156(4) this Court has jurisdiction to deal with the current matter. The order joining Liverpool Insurance Brokers Pty Ltd in these proceedings was made by his Honour Judge Burke on 6 February 2001. 22. The first thing to note about s 156A is that it establishes a criminal offence. According to ordinary rules of statutory interpretation, the section must be strictly construed. The relevant matter is the making of a representation as to "any insurance" which might reasonably cause the employer to believe that the insurance was comprehensive. The proviso to that is that the insurance does effect insurance under the Workers Compensation Act 1987 or that it contains a statement that it does not and that the employer must have a workers compensation policy. 23. It is alleged on behalf of Mr and Mrs Goorkiz that there were two representations made in the current matter. The first representation was that Mr Turner would effect workers compensation insurance. The second representation, Mr Wardell argues, is constituted by Mr Turner advising the respondents of the amount of premium payable for the insurance which he had effected. 24. The first question to consider is what does the word "representation" mean. I cannot, for example, use the definition contained in the Evidence Act 1995 because that definition includes the matter "a representation that for any reason is not communicated". It is clear in my view that the representation must be made to somebody for the purposes of s 156A. Halsbury's Laws of England Fourth Edition Volume 31 para 703 commencing at page 443 contains a general statement as to what constitutes a representation. It says this: A representation is a statement made by a representor to a representee and relating by way of affirmation, denial, description or otherwise to a matter of fact. The statement may be oral or in writing or arise by implication from words or conduct. The representor and the representee must be distinct from one another in substance as well as in name; where the persons claiming to have been deceived by a statement in effect are the same as those who are alleged to have made it, there is no representation which the law can recognise. The matter of fact to which the statement relates must be a matter of past or present fact, but there are difficulties in applying this principle to certain classes of statements. Thus if a person makes a statement relating to his own or some other person's intention, or containing a promise or forecast as to the future with possible implications as to the present, or relating to his own or some other person's opinion, belief or other condition of mind, or to a matter of law, or to a document, or containing laudatory generalities or exaggeration, questions may arise whether and in what sense and to what extent a representation is contained in or to be implied from the statement. In the same work, paragraph 705 commencing at page 445 the following is contained: A statement of intention is not a representation as to the matter said to be intended, because that belongs to the future and is not a matter of present or past fact. On the other hand, a statement of intention involves a representation as to the existence of the intention which is itself a present fact. However, the difficulty of proving the non-existence of the intention diminishes the value of such representations. The mere circumstance that the expressed intention is not fulfilled does not establish the non-existence of the intention at the time when it was expressed, although the non-fulfilment of the intention may be some evidence, strong or weak according to the circumstances of the individual case, that the intention never existed at all. Many examples can be given of a person's statement of his own intention being treated as a representation that he has the intention. There are the usual list of authorities to support the propositions contained in that statement of the law. 25. The implication from Mr Turner's statement and conduct is that he would effect workers compensation insurance and was really an indication of his intention. That is not a representation about any insurance, it is merely a statement that he would effect the insurance. 26. The word "representation" is defined in Butterworth's Encyclopaedic Australian Legal Dictionary in the following terms: In contract law, an oral or written statement made by one party relating to a past event or existing fact, but not as to law, which induces a course of action such as entry into a contract. A representation may be inferred from conduct: Simos v The National Bank of Australasia Ltd (1976) 10 ACTR 4. 27. In stating that he would effect workers compensation insurance, Mr Turner was not making a statement relating to a past event or to an existing fact and in particular, not making a statement as to the content of any specific policy of insurance. The reference to Simos's case must be read in the particular circumstances of that case. That case was an attempt by a bank on a common money count to recover moneys which it paid to the plaintiff from a third party. On the evidence Connor J found that it was clear that the third party signed the cheques in question on his own behalf and he negotiated them with intent to defraud the plaintiff. His Honour said at 15.30: I consider that the third party's conduct, which I have already described in dealing with mistake, was something done by the third party which amounted in law to a representation. I think it is plain enough that the representation is made to the bank and that it was false. It is clear that the bank altered its position as a result of such representation, that the representation was fraudulent and that the bank suffered damage thereby. 28. Clearly, in that case, the third party named Guelman was signing cheques which he had no authority to sign, presenting them to the bank, thereby putting himself forward as having authority to do so, cashing them and pocketing the money with the intent of defrauding the plaintiff Simos. It was not a mere statement of intention to do something in the future, but positive acts done in the past in connection with negotiating cheques. 29. The other thing which must be borne in mind in considering what "representation" means in s 56A(2) is the mischief for whose avoidance it was created. 30. The explanatory note to the Bill as introduced into Parliament, the WorkCover Legislation Amendment Bill 1996 (No 2) contains the following statement: Schedule 1.5 - inserts a new provision that deals with conduct by insurers and insurance brokers whereby insurance packages that are marketed as comprehensive for business do not provide workers compensation insurance cover and do not contain a warning about this or that workers compensation insurance is compulsory for employers. The new provision makes such conduct an offence and also provides a mechanism whereby culpable insurers and brokers can be joined as co-defendants and made liable in proceedings for recovery against employers based on a failure to have workers compensation insurance when the conduct of the insurer or broker caused or significantly contributed to the failure to ensure. 31. The second reading of that Bill was made in the Legislative Assembly by the Honourable Mr Yeadon on 20 November 1996. At page 6334 of Hansard he said this: One problem has emerged from a number of cases of non-insurance prosecuted under the Workers Compensation Act. In the cases in question, the uninsured employers have said that they thought all their insurance needs had been met under a so-called comprehensive business insurance package obtained through an insurance broker or from an insurer. The Chief Industrial Magistrate, in recently convicting an uninsured employer, said: `It is not uncommon for insurance brokers to either mislead or not inform employers of their liability to obtain workers compensation insurance under the Workers Compensation Act.' The Bill creates an offence for persons who sell insurance which, while presented as comprehensive for business needs, omits workers compensation insurance and fails to mention that omission or the fact that insurance is compulsory for employers. Additional measures are introduced in cases in which corporate proceedings are being taken against an uninsured employer either for civil penalty of double the avoided premium or to recover WorkCover costs in compensating a worker of the employer injured during the period of non-insurance. In those cases, if the employer claimed that a person such as a broker contributed to the non-insurance through misleading advice, the person may be joined as a co-defendant in the proceedings. Then if the court is satisfied regarding that person's culpability, it may order that the person is jointly and severally liable with the uninsured employer. 32. Clearly, the mischief which was intended to be remedied was the mischief of presenting employers, or business people one should say, with insurance packages which were said to be comprehensive, that is all-embracing, and obviating the need for any other form of insurance. In the current case, no such representation was made. It was not said by Mr Turner that the business pack policy covered all requirements. Mr Goorkiz knew that it did not. 33. In cross-examination, the following was put to Mr Goorkiz: Question You said to him, I suggest, sir, words to the effect of, `I assumed that workers compensation insurance was part of a business pack policy '. Answer No. Question You did not say that to him. Answer No. Question Are you sure about that. Answer 100 per cent sure. I wanted to know what he was doing about it. Question Is it the case that your assumption was that workers compensation insurance was part of the business pack policy. Answer We thought that that was - no - that was separate. Question You say `we ' I am just asking you about you, sir, was it your assumption that workers compensation was included in the business pack policy. Answer No. Question It was not your assumption. Answer No. Question You thought it was entirely separate policy to that. Answer Separate policy that is taken. 34. That cross-examination was based on a conversation that Mr Goorkiz has with Mr Van Eck, the principal of the third party. Mr Van Eck has given evidence and did not attest the fact that he had a conversation in which Mr Goorkiz said that he assumed that workers compensation insurance was part of business pack policy. Clearly, Mr Goorkiz knew that the business pack policy did not contain a workers compensation cover. 35. It appears to me, looking at the mischief sought to be remedied and bearing in mind that a criminal offence is established, that there must be some positive statement made that "any insurance" was comprehensive for business needs that is all-embracing and not requiring any further insurance cover unless it did include workers compensation cover or a clear statement to the contrary and the need for employers to obtain a compulsory workers compensation policy. 36. In my view, a mere statement by an insurance intermediary such as Mr Turner that he would effect workers compensation insurance is not a representation within the meaning of subsection (2). It is a mere statement of intention as to the future which, under the general law, would not in any event constitute a representation. 37. During the course of argument, I also discussed with Mr Wardell the meaning of "any insurance"; "any" of course is singular and I indicated to Mr Wardell that I would construe it as "a policy of insurance" and that the further references to "the insurance" were references to that insurance meaning the first mentioned policy of insurance. However, I accede to Mr Wardell's argument that it can refer to a package of insurances. 38. The first thing to note is that s 159 headed "Provisions of Policies of Insurance" refers specifically to policies of insurance and specifically to the policy of insurance required under the Workers Compensation Act. Where the words "Policy of Insurance" are used in one place and "Insurance" only in another place one can infer that different meanings ought be applied. The further argument of course is that under the Interpretation Act 1987, s 8 par (b) a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form. The other consideration which causes me to adopt the submission of Mr Wardell is that s 159 and its legislative predecessor, s 18(3) of the 1926 Act requires that a policy of insurance shall contain only such provisions as are prescribed by the Regulations, that is, it is a statutory policy its form set by regulation and it cannot contain any other provisions, therefore it is necessary to issue a workers compensation policy in every case which does not include any other cover. It is therefore impermissible, for example, to put in a comprehensive cover such as a business pack cover, a statutory form of policy. 39. However, s 156A(2) par (a) clearly indicates that the insurance referred to in subsection (2) can include insurance under the Act. Therefore it must be postulating that there be a package of insurances at least one of which includes a workers compensation policy issued in accordance with the Regulations. Therefore, I accept Mr Wardell's argument that "any insurance" referred to in s 156A(2) can refer to a package of insurance policies. However, again, that does not really help the respondents. No relevant representation was made by Mr Turner as to the nature of the cover that he would effect when he interviewed them on 26 March 1998. He merely made a statement of what he would do which, under the general rule, is not a representation as to the contents of any policy. 40. The other argument adduced by Mr Wardell was that in telling Mr and Mrs Goorkiz that the premium for the policies that he had effected was approximately $200 per month by direct debit from the bank was a representation which implied that he effected workers compensation insurance. I am unable to accede to that submission. 41. Mr and Mrs Goorkiz at all times after 26 March 1998 assumed that Mr Turner would effect or had effected a workers compensation insurance policy, or would or had effected a workers compensation cover. Clearly, it is my view that Mr Turner forgot to do so. He told Mr and Mrs Goorkiz what the premium would be in the direct debit from their account each month. He made a representation as to the amount of premium which they would pay for the cover he had effected. Because he had forgotten, he did not mean it to include workers compensation cover, and Mr and Mrs Goorkiz merely assumed that it would cover workers compensation premium. 42. Mr and Mrs Goorkiz made an assumption which was incorrect and Mr Turner made a statement as to the premium based on his then erroneous view that he had effected all the insurances that they requested. There were probably mistakes within the meaning of contract law, but there was no representation, no positive statement made by Mr Turner that he had effected workers compensation insurance. If in fact, Mr Goorkiz or Mrs Goorkiz had at that time said "Does this include workers compensation premium?" it may have triggered Mr Turner to remember that he had forgotten to do so. However, they did not make the inquiry and no positive assertion was made by Mr Turner. Furthermore, that strictly to me would only, if it did constitute a representation, be a representation as to the quantum of premium and not as the content of the cover which had been effected. It would be not a representation about any insurance, but rather a representation about the cost of the insurance. 43. I feel great sympathy for Mr and Mrs Goorkiz because they are in the position they are in, not because of any fault on their part, but because of the omission of Mr Turner. However, they probably have a remedy, it is just one that, in the exercise in the jurisdiction of this Court, I am unable to grant them because I cannot find that the facts of this case fall within the provisions of s 156A(2). 44. I have inquired of the representatives of the parties if any further reasons for judgment are required, I am told that none is so required. 45. For those reasons, on the third party notice I make an award for the third party. 46. I now consider the terms of MFI-X which were the form of orders proposed to me when I entertained the commutation application last Monday. By consent, there will be orders in accordance with MFI-X which I have amended slightly in the short minutes and placed with the papers. 47. I now deal with certain costs questions. The short minutes of order which I have initialled and placed with the papers require the first respondent to reimburse the second respondent inter alia for its costs. The worker's claim against the respondents was effectively concluded at 1.30 on Monday. Nevertheless, the WorkCover Authority has continued to be represented by counsel, who did not ask any questions and made no submissions. That is not any criticism of counsel at all. Really, there was nothing that he could have asked or said that had not already been asked or said by Mr Wardell for the first respondent. Mr Deggens clearly had a watching brief and continued to watch. However, I do not believe that the first respondent should be visited with the costs of the WorkCover Authority enjoying the luxury of having counsel holding a watching brief. 48. I limit the order for costs payable by the first respondent to the second respondent to the second respondent's costs incurred up to and including Monday, 9 July. 49. The only remaining issue concerns the costs of the third party notice. Mr and Mrs Goorkiz, the first respondents, have been unsuccessful on the third party notice. The third party seeks costs against them. The normal rule of costs is that costs follow the event and here the third party has been successful. The third party has been successful because this Court has an extremely limited jurisdiction in matters concerning insurance. For example, any dispute between an employer and its insurer is not justiciable in this Court (see Brakespear's case). The only way the Court has jurisdiction is by the statutory mechanism of the WorkCover Authority joining an insurer in circumstances where it maintains that the insurer is liable to indemnify the employer. The employer itself cannot join its own insurer. 50. S 156A is another case in which this Court is granted a limited jurisdiction on insurance issues. Mr and Mrs Goorkiz have failed not because their position is without merit but merely because they could not place themselves within the Court's jurisdiction under s 156A(2). If I had a general jurisdiction at law, the result would, in my view, have been quite the opposite. Clearly, I have found that Mr and Mrs Goorkiz requested Mr Turner to effect workers compensation insurance and clearly he did not. He forgot to do so. That is negligent. If there were a contract between Mr and Mrs Goorkiz and the third party, it would also constitute a breach of contract but I do not have to determine whether there was such a contract. 51. Here there is a significant discretionary item to consider on the question of costs. I have determined certain facts which would enable a court exercising general jurisdiction at common law to quickly determine any issue joined between Mr and Mrs Goorkiz and Liverpool Insurance Brokers in an action at law. The ventilation of the issue between Mr and Mrs Goorkiz and the brokerage before me has occurred much more quickly and one can say more cheaply than it would in an action in another court. 52. Mr Turnbull for the third party has submitted that my diffidence about awarding costs in his client's favour is based on emotion. He did not mean by that any discourtesy to me and I take no umbrage at his expressing himself in the way he did. However, it is true as I said that I, in giving reasons for judgment, I express my sympathy with Mr and Mrs Goorkiz because the position in which they find themselves was not of their own making. However, as I said, the ventilation of the evidence on the subject here will probably led to a swifter determination of any claim for indemnity in another place. 53. Accordingly, in the exercise of discretion, I order that each party pay their or its own costs of the third party proceedings. 54. I append to the reasons for judgment this: it was asserted that Mr and Mrs Goorkiz received from Mr Turner, a copy of a brochure in the form of Exhibit T-4, which brochure contains a specific disclaimer about workers compensation insurance being effected by the business pack cover. Each of them swore on oath that they did not receive the document and I am prepared to accept them in that regard. Furthermore, even if they had, it would not have made any difference to the matter, because as far as Mr Goorkiz was aware, workers compensation insurance was separate to the business pack cover and he thought that arrangements had been made for that to be effected by Mr Turner in any event. Mr T A Wardell instructed by A O Ellison appeared for first respondent. Mr J P Deggens instructed by William Clinton appeared for second respondent. Mr Turnbull instructed by McCabe Terrill appeared for third party. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.