M.M. International (Australia) Pty Ltd v Workers Compensation Nominal Insurer [2016] NSWSC 412

Supreme Court New South Wales

Medium Neutral Citation: M.M. International (Australia) Pty Ltd v Workers Compensation Nominal Insurer [2016] NSWSC 412 Hearing dates: 23 March 2016 Date of orders: 23 March 2016 Decision date: 23 March 2016 Jurisdiction: Common Law Before: Rothman J Decision: (1) Leave is refused. (2) The appeal is dismissed. (3) The plaintiff will pay the defendant's costs of and incidental to the appeal as agreed or assessed. Catchwords: APPEAL – application to vacate date set for tomorrow – representatives (two directors) of corporate plaintiff able to run appeal as effectively today as tomorrow – no basis for appeal – respondent moved for dismissal on merits – vacation refused, appeal dismissed. Legislation Cited: Workers Compensation Act 1987 (NSW) Supreme Court Act 1970 (NSW) Category: Procedural and other rulings Parties: M.M. International (Australia) Pty Ltd (Plaintiff/Applicant) Workers Compensation Nominal Insurer (Defendant/Respondent) Representation: Counsel: Self-Represented (Plaintiff/Applicant) S Bogan (Defendant/Respondent)

Solicitors: Self-Represented (Plaintiff/Applicant) Woods & Day Solicitors (Defendant/Respondent) File Number(s): 2015/00128752

EX-Tempore Judgment 1. HIS HONOUR: Before the Court is a motion to vacate a hearing date in an appeal listed before the Court tomorrow. The appeal is an appeal from the Local Court, or said to be an appeal from the Local Court, which appeal runs as of right on a question of law and otherwise by leave on a mixed question of fact and law. 2. What was dealt with by the Local Court was a proceeding pursuant to the terms of the Workers Compensation Act 1987 (NSW), in which the Workers Compensation Nominal Insurer delegated to Allianz the functions of an insurance company and the calculation of workers' compensation premiums in relation to the appellants. 3. Pursuant to the provisions of ss 169, 170 and 172 of the Workers Compensation Act, the calculation of workers' compensation premiums is a debt created by statute, the only means of challenge for which under the statute is by an application for a review to WorkCover. No application for review to WorkCover has been made. 4. There may be other avenues for review, namely, judicial review under s 69 of the Supreme Court Act 1970 or other such sections for orders in the nature of certiorari or prohibition, relating either to the delegation to Allianz, the calculation or the review by WorkCover. I make no comment in these reasons as to whether any such summons for orders in the nature of certiorari or orders in the nature of prohibition run. 5. I do, however, make it clear that that is the only basis, other than a review by WorkCover, in which a challenge of the kind sought to be made to the calculation can be progressed. Therefore, what is before the Court, by way of the motion to vacate the date, seeks an order of the Court to vacate a date for hearing in relation to an appeal from which there is and can be no arguable appeal before the Court. 6. The defendant opposes the vacation of the date and orally has made application for the dismissal of the proceedings. 7. As earlier stated in the Local Court, the magistrate had no jurisdiction to re-assess premiums and was not in a position to be able to deal with an application that the calculation was invalid or wrong. 8. The question that is before the Court is in circumstances where, pursuant to the terms of the Workers Compensation Act, the Local Court did not have jurisdiction to question the calculation, should the date be vacated for what I will assume is otherwise good reason or should I simply deal with the appeal now. 9. I have asked the representatives of the applicants on the motion whether they are in any worse position today than tomorrow. Their response was to the effect that they are unable to be here tomorrow and are otherwise in a position to say today what they would say tomorrow. 10. The applicant says the company operates only in the ACT and ought not pay NSW workers' compensation premiums. 11. I have, in the course of further submissions, been directed to the transcript and evidence before the magistrate below. The application that was originally before the Court, subject to the overall application of the respondent to the appeal, is an application for the vacation of the hearing date tomorrow. The appellant cannot appear tomorrow. The appellant has been given the opportunity to put what the appellant wishes to put in relation to the proceedings that would otherwise have been called on tomorrow. 12. The proceedings that were before the magistrate were proceedings for the enforcement of workers compensation premiums, calculated in accordance with the order, that is the order issued by the Governor pursuant to the Act. A challenge to the calculation cannot be made in the Local Court and the Local Court has no jurisdiction to go behind the debt. A challenge could be made in the Local Court to the payment of the debt on the basis that the Workers Compensation Act did not apply to the defendant. 13. The transcript of the proceedings makes clear that the counsel or legal representative then appearing for the nominal insurer made the submission that the Act did apply. Evidence before the magistrate included evidence of a conversation in which Mr Hussain, a person who is and was able to bind the plaintiffs, made clear that the taxi company he operated, operated in Canberra and in New South Wales. Such a comment frankly accords with common experience given the fact that people live and work in Queanbeyan and travel between Queanbeyan and Canberra on a daily, if not hourly, basis. That evidence is evidence of employment in the broadest sense covered by Sch 2 of the Workers Compensation Act and the operation of the Act on the employer. 14. The fact, if it be the fact, that the work in New South Wales was minimal and could have been the subject of a workers' compensation policy in the ACT, if that be so, is a matter for WorkCover and the relationship between New South Wales and ACT in terms of workers' compensation policies. In order for this Court to deal with this appeal, the Court would have to go behind the evidence adduced on which there is no, it seems to me, countervailing evidence that work was not performed in New South Wales. 15. While it is true that the magistrate made it clear that he did not have jurisdiction to deal with the challenge to the calculation of the premiums in accordance with the order, it is also true that the magistrate, as already stated, had jurisdiction to deal with the coverage of the Act. Nevertheless it is not inappropriate for a magistrate, in the absence of a submission to the contrary and in the presence of evidence that employment or work occurred in New South Wales, to assume the operation of the Act and therefore proceed as the magistrate did. 16. On any analysis there is evidence upon which the magistrate could have and did exercise the jurisdiction conferred on him by the Workers Compensation Act and there is no question of law, or error of law that arises in relation to either aspect of the magistrate's decision. 17. As to the question of fact, as to whether or not there was or was not work performed in New South Wales, that is a matter of evidence and ought to be dealt with in accordance with the evidence that was before the magistrate. The evidence is all one way. 18. In order for the appellants to appeal the finding of fact in relation to the question that work was performed in New South Wales the appellants require leave. If the fact be jurisdictional, which I accept, the Court could with a proper application issue orders in the nature of certiorari or prohibition. No such application has been made, if it were, there would be significant discretionary reasons not to issue such orders, given the existence of a right to review to WorkCover and also the evidence before the magistrate. 1. Leave is refused. 2. The appeal is dismissed. 3. The plaintiff will pay the defendant's costs of and incidental to the appeal as agreed or assessed.