Hicks v Shane & Gary Burton Pty Ltd and ors [2002] NSWCC 65 (28 November 2002)

Last Updated: 15 July 2003

NEW SOUTH WALES COMPENSATION COURT

CITATION: Hicks v Shane & Gary Burton Pty Ltd and ors [2002] NSWCC 65


PARTIES:
Allison Hicks
v
Shane & Gary Burton Pty Ltd and ors


CASE NUMBER: 43338 of 2001 of 2003.00


CATCH WORDS: Miscellaneous Matters


LEGISLATION CITED:


CORAM: Neilson J

DATES OF HEARING: 28/11/02

EX TEMPORE DATE: 28/11/2002


LEGAL REPRESENTATIVES

FOR APPLICANT:
Mr R Harrington instructed by Carroll & O'Dea appeared for the applicant.
FOR RESPONDENT:
Mr A Candy instructed by T J Doubleday appeared for the first respondent.
Mr J Catsanos instructed by Moray & Agnew appeared for the second respondent.
Mr Campbell SC with Mr J Harris instructed by Dan Simpson & Associates appeared for the third respondent.
Mr J Deggens instructed by WorkCover Authority appeared for the fifth respondent.


JUDGMENT:

1. These proceedings were initially listed for hearing before me on 29 August 2002. On that day on the application of the applicant I granted the applicant leave to join Uniting Towing Service Pty Ltd as the third respondent and to join Allison Hicks Pty Ltd as the fourth respondent and the WorkCover Authority of New South Wales as the fifth respondent. Pursuant to those orders an amended application for determination was filed on 6 September 2002. I granted the applicant leave to rely on that document on 28 November this day. Since 29 August 2002 the matter has been mentioned on two occasions for directions. The first directions hearing was on 8 October 2002 and the second was on 24 October 2002.

2. This morning the fifth respondent, the WorkCover Authority of New South Wales, has advised me, by counsel, that the fourth respondent, Alison Hicks Pty Ltd, was de-registered on 18 February 2002. Mr Deggens, for the WorkCover Authority, advised me that the date of the search available to him was made on 8 October 2002. It therefore appears that even if that search was not obtained before the matter was before me for directions on 8 October 2002 it was certainly available to the WorkCover Authority on 24 October 2002. Mr Deggens then advised me that consistent with my decision in Kapetanakis v Kapetanakis trading as Atlas Coathangers (unreported, 18 August 2000, Matter No 34742 of 1999) the proceedings would have to be adjourned so that Alison Hicks Pty Ltd could be restored to the company list.

3. In Kapetanakis, Mr M J Claridge appeared for the applicant, Mr Dominic Toomey appeared for the respondent and Ms Alice Leslie appeared for the WorkCover Authority, the second respondent. None of those drew my attention to cl 77 of the Workers Compensation (General) Regulation 1995. That regulation makes certain modifications to the terms of the Workers Compensation Act 1987 in connection with claims made under the uninsured liability and indemnity scheme. Cl 77 sub cl 1 par (c) is as follows:

(i) In a case where the employer named as a respondent as referred to in s 144(2)(a) of the Act is a corporation which has ceased to exist or a deceased person whose estate has been distributed - s 144(2) is to be read as if it also provided that, in such a case, the application is not, subject to any rules of the Compensation Court, required to serve a copy of the application on that person.

4. In Kapetanakis I referred to the provisions of the Workplace Injury Management and Workers Compensation Act 1998 to which at the time of that decision provisions relating to the Liability and Indemnity Scheme had been transferred. They had, however, been transferred back to the Workers Compensation Act 1987 with effect from 10 October 1999. The above paragraph of cl 77 which I have quoted, clearly envisages a non-existent company being named as a respondent in the proceedings which is what has occurred in the current matter and not requiring service upon a non-existent company, which, of course, would at any rate be an impossibility.

5. By implication the regulation validates what has been done in the current proceedings. The regulation appears to permit proceedings to be continued against the WorkCover Authority as if it were the insurer of the de-registered company in much the same as an insurer of a de-registered company can be pursued in a claim pursuant to s 162 of the Workers Compensation Act 1987. Notwithstanding the regulation made by the Governor on the advice of the Minister in charge of the WorkCover Authority, the WorkCover Authority now says that the regulation is ultra vires because it is inconsistent with the provisions of the Corporations Code.

6. The answer to that can be succinctly stated. This is a very specific provision on one narrow area of the Law which must be seen as overcoming any general provisions to the contrary in the Corporations Code: generalia specialibus non derogant. Furthermore, the WorkCover Authority by its counsel has submitted that the regulation does not cure the defect in this case in that the regulation merely does not require service upon the de-registered company, it does not cure the problem that a joinder of a non-existent entity as a party may represent a legal nullity. However, in my view the regulation clearly assumes what has been done in the current case to be valid and then dispenses with the requirement of the service upon the non-existent party in many respects validating the ratio decidendi of Carter v Khamis Mushayt Armed Forces Hospital [1994] NSWCC 27; (1994) 10 NSWCCR 605. The regulation implicitly validates the joinder of the non-existent company and can be seen as a regulation to that effect sub silentio. Furthermore, the regulation appears, in my view, to be valid because of the general regulation-making power in s 148(3) and as putting the WorkCover Authority as an administrator of the Uninsured Liability and Indemnity Scheme in much the same position as the insurer of an insured employer.

7. I reject the submission that the proceedings as currently constituted cannot continue.
Mr R Harrington instructed by Carroll & O’Dea appeared for the applicant.
Mr A Candy instructed by T J Doubleday appeared for the first respondent.
Mr J Catsanos instructed by Moray & Agnew appeared for the second respondent.
Mr Campbell SC with Mr J Harris instructed by Dan Simpson & Associates appeared for the third respondent
Mr J Deggens instructed by WorkCover Authority appeared for the fifth respondent.