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

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

Because the Workers Compensation Nominal Insurer did not exist at the time of the plaintiff's accident in May 2006 or when QBE entered into the workers compensation insurance contract with Bradley Tracey Scaffolding Services Pty Limited on 28 April 2006, and because the QBE contract was the only insurance contract capable of founding a statutory charge under s 6(4), QBE was the proper defendant to be substituted and leave should be granted.

Jurisdiction
Australia
Judgment Date
08 July 2011
Procedural Posture
Civil / Interlocutory Application by Amended Notice of Motion for Leave to Commence Proceedings Against QBE Worker's Compensation (nsw) Limited by Substituting It for the Present First Defendant
Outcome
Leave granted to commence proceedings against QBE Worker's Compensation (NSW) Limited by substituting it for the present first defendant; leave granted to file a second further amended statement of claim; costs of the motion ordered to be costs in the cause.
Legal Topics
['proof of Insurance Contract' 'whether Workers Compensation Nominal Insurer Existed at Time of Accident' 'leave to Commence Proceedings to Enforce Statutory Charge' 'substitution of Defendant After Deregistration']
['practice and Procedure' 'insurance' 'workers Compensation'] ['proof of Insurance Contract' 'whether Workers Compensation Nominal Insurer Existed at Time of Accident' 'leave to Commence Proceedings to Enforce Statutory Charge' 'substitution of Defendant After Deregistration']

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Procedural Posture

Civil / Interlocutory Application by Amended Notice of Motion for Leave to Commence Proceedings Against QBE Worker's Compensation (nsw) Limited by Substituting It for the Present First Defendant

Legal Issues

  1. 1 ["Whether leave should be granted under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 to commence proceedings against QBE Worker's Compensation (NSW) Limited." "Whether QBE Worker's Compensation (NSW) Limited or the Workers Compensation Nominal Insurer was the proper defendant to be substituted for the deregistered first defendant." 'Whether there was a contract of insurance capable of founding a statutory charge under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946.']

Ratio Decidendi

Because the Workers Compensation Nominal Insurer did not exist at the time of the plaintiff's accident in May 2006 or when QBE entered into the workers compensation insurance contract with Bradley Tracey Scaffolding Services Pty Limited on 28 April 2006, and because the QBE contract was the only insurance contract capable of founding a statutory charge under s 6(4), QBE was the proper defendant to be substituted and leave should be granted.

Court Disposition

Leave granted to commence proceedings against QBE Worker's Compensation (NSW) Limited by substituting it for the present first defendant; leave granted to file a second further amended statement of claim; costs of the motion ordered to be costs in the cause.

Orders

  • ["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." 'I grant leave to the plaintiff to file a...