Michael Perigo v Bradley Tracey Scaffolding Services Pty Ltd [2011] NSWSC 733

Supreme Court New South Wales

Medium Neutral Citation: Michael Perigo v Bradley Tracey Scaffolding Services Pty Ltd [2011] NSWSC 733 Hearing dates: 08/07/2011 Decision date: 08 July 2011 Jurisdiction: Civil Before: Garling J Decision: (1) Pursuant to s 6 of the Law Reform (Miscellaneous Provisions) Act 1946, I grant leave to the plaintiff to commence proceedings against, by substituting for the present first defendant, QBE Workers Compensation (NSW) Limited as the first defendant for the proceedings. (2) I grant leave to the plaintiff to file a second further amended statement of claim on or before 4pm, Friday 15 July 2011 Catchwords: PRACTICE AND PROCEDURE - Proof of Insurance Contract necessary - Whether Workers Compensation Nominal Insurer existed at time of accident - Leave to commence proceedings to enforce statutory charge. Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946 Cases Cited: N/A Texts Cited: N/A Category: Interlocutory applications Parties: Michael Perigo (1st Plaintiff) Doris Perigo (2nd Plaintiff) Bradley Tracey Scaffolding Services Pty Ltd (1st Defendant) Waco kwikform Ltd (2nd Defendant) File Number(s): SC 2009/297523 Publication restriction: Nil

Ex Tempore Judgment 1HIS HONOUR: By an amended notice of motion dated 4 July 2011 the plaintiff seeks leave to commence proceedings against QBE Worker's Compensation (NSW) Limited pursuant to section 6(4) of the Law Reform (Miscellaneous Provisions) Act 1 946. 2The mechanism by which it would proceed against QBE if granted leave is to substitute QBE as the first defendant in proceedings which are presently on foot in lieu of the presently named first defendant Bradley Tracey Scaffolding Services Pty Limited. 3The evidence establishes that Bradley Tracey Scaffolding Services Pty Limited was deregistered on 9 May 2010. The evidence also establishes that on 28 April 2006 QBE entered into a contract of workers compensation insurance with Bradley Tracey Scaffolding Services Pty Limited pursuant to which it issued a policy which was numbered ISF0071886GWC154. 4The plaintiff was injured in an accident on 16 May 2006 in circumstances set out in the further amended statement of claim which is presently filed. 5In that statement of claim, he alleges that whilst working on the dismantling of scaffolding at a building site at Wentworth Park, he fell a number of metres to the ground as a consequence of stepping on a part of the scaffolding which was unsecured. He alleges - and I do not understand it to be significantly disputed - that as a consequence of that fall he suffered serious p ersonal injury. 6Proceedings were originally commenced against Bradley Tracey Scaffolding Services Pty Limited, which has been and continues, notwithstanding deregistration, to be represented in the proceedings by Messrs Gillis Delaney Lawyers. It has filed a defence and it contests its liability to the plaintiff. 7In the course of management of the proceedings, it became apparent that Bradley Tracey Scaffolding Services Pty Limited had been deregistered and, accordingly, it became necessary for the plaintiff to consider what it proposed to do - hence the amended notice of motion which is presently before the court. 8Counsel for the defendant contends in an outline of submissions that the proper defendant to be substituted for Bradley Tracey Scaffolding Services Pty Limited is a statutory body known as the Workers Compensation Nominal Insurer. That statutory body is created by section 154A of the Worker's Compensation Act 1987. 9The first defendant submits that QBE acts presently as a scheme agent for the Nominal Insurer and was so acting on 28 April 2006 when it issued the contract of insurance to which I have referred. However, counsel for the plaintiff has informed the court - and there was no dispute about this - that the statutory provision creating the Workers Compensation Nominal Insurer only took effect from 1 July 2007. 10In those circumstances, it seems to me that the statutory Nominal Insurer did not exist at the time of the plaintiff's accident in May 2006, nor did it exist on 28 April 2006 when QBE entered into the contract of insurance of Bradley Stracey Scaffolding Services Pty Limited. 11In those circumstances I am unable to accept the submission of the first defendant that the proper defendant to be named is the statutory body Workers Compensation Nominal Insurer. 12For its operation, section 6(4) of the Law Reforms (Miscellaneous Provisions) Act 1946 requires there to be a contract of insurance which indemnifies a person against a liability to pay damages upon the happening of an event giving rise to a claim for such damages. It provides that upon the happening of such an event, a charge comes into being on "... all insurance moneys that are or may become payable in respect of that liability. " An action under section 6(4) is an action to enforce the statutorily created charge. 13On the whole of the evidence before me, the only contract of insurance which exists and which could be the foundational element for a statutory charge to arise is that entered into by QBE on 28 April 2006. Accordingly, it seems to me that the proper defendant is QBE and I should make the orders sought in the notice of motion. 14It will be necessary to also order the plaintiff to file an amended pleading which names QBE as the first defendant. 15I make the following orders: (1)Pursuant to s 6 of the Law Reform (Miscellaneous Provisions) Act 1946, I grant leave to the plaintiff to commence proceedings against by substituting for the present first defendant, QBE Worker's Compensation (NSW) Limited, as the first defendant for the proceedings. (2)I grant leave to the plaintiff to file a second further amended statement of claim on or before 4pm, Friday 15 July 2011. (3)I order the costs of the motion to be costs in the cause.