Racing NSW v NSW Self Insurance Corporation

Supreme Court of NSW|2008-01-31|Before: Einstein J, Mr J, Mr P

CITATION : Racing NSW v NSW Self Insurance Corporation (a continuance of the NSW Insurance Ministerial Corporation), trading as Treasury Managed Fund No. 1 [2008] NSWSC 6

JURISDICTION : Equity Division Commercial List

CATCHWORDS : Statutory construction - Meaning of word 'employer' in the former section 158 of Workers Compensation Act 1987 (NSW)

Apprenticeship and Traineeship Act 2001 (NSW) Workers Compensation Act 1926 (NSW) Workers Compensation Act 1987 (NSW) LEGISLATION CITED : Workers Compensation (Amendment) Act 1986 (NSW) Workers Compensation Legislation Amendment (Trainees) Act 2003 (NSW) Workers Compensation Regulation 2003 (NSW) Workers Compensation (General) Regulation 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Ebb v Fast Fix Steel Fixing Pty Ltd [2007] NSWCA 236 Hobbs v Costain Australia Limited (1995) 11 NSWCCR 56 Klein v Minister for Education (2007) 232 ALR 306 CASES CITED : Muller v Dalgety & Co Limited (1909) 9 CLR 693 OP Industries Pty Ltd v MMI Workers' Compensation (NSW) Ltd (1998) 17 NSWCCR 193 Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 Sydney Turf Club v Crowley [1971] 1 NSWLR 724 Sydney Turf Club v Crowley (1972) 126 CLR 420

TEXTS CITED : Pearce DC and Geddes RS Statutory Interpretation in Australia (6th ed) at 148

PARTIES : Racing NSW (Plaintiff) NSW Self Insurance Corporation (a continuance of the NSW Insurance Ministerial Corporation), trading as Treasury Managed Fund No. 1 (Defendant)

COUNSEL : Mr N Hutley SC, Mr J Catsanos, Ms M Allars (Plaintiff) Mr GJ Parker, Mr P Khandhar (Defendant)

SOLICITORS : Maurice Blackburn Cashman (Plaintiff) Turkslegal (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

50123/07 Racing NSW v NSW Self Insurance Corporation (a continuance of the NSW Insurance Ministerial Corporation), trading as Treasury Managed Fund No. 1

JUDGMENT The proceedings 1 The plaintiff, Racing NSW, seeks a declaration that pursuant to the former s 158 of the Workers Compensation Act 1987 (NSW) ("the WC Act") and clause 2(2) in Pt 18G of Schedule 6 to the WC Act, the Wellington Race Club Inc ("the Club") holds a workers compensation policy with the defendant, the NSW Self Insurance Corporation (a continuance of the NSW Ministerial Corporation) trading as Treasury Managed Fund No 1 ("NSW SIC") for the full amount of the liability and legal costs of the Club arising in respect of a determination made by the Workers Compensation Commission ("the Commission") on 23 April 2007 in Matter No 622 of 2007 Jasmine Curran v Australian Traineeship System (Host employer James McMillan) and Wellington Race Course. 2 The declaration is sought by the plaintiff, a licensed self insurer under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the WIMWC Act"), in order to resolve a dispute as to whether by the operation of the former s 158(5) of the WC Act, it is not subject to any liability in respect of Ms Jasmine Curran. She sustained an injury on 11 November 2002 whilst engaged in riding track work in the course of her employment by Mr James McMillan on the premises of the Club. The plaintiff had issued a workers' compensation policy to the Club covering the date of Ms Curran's injury. The principal issue - what is the correct construction of section 158 of the former WC Act? 3 The principal issue is one of statutory construction. The issue may be defined as follows:

Whether pursuant to the former s 158(3) of the WC Act [which continues to apply to the circumstances of the present case by force of Pt 18G cl 2 in Sch 6 to the WC Act ], the Club is deemed to hold a policy of insurance with the Insurance Ministerial Corporation ("the IMC") and the plaintiff is by operation of s 158(5) not subject to any liability in respect of Ms Curran. 4 The issue turns upon the meaning of the term "employer" in s 158(3) and (5). 5 By the operation of Sch 1 cl 9(1)(c) of the WIMWC Act, Ms Curran was deemed [for the purposes of the WIMWC Act] to be a worker employed by the Club. Section 5 of the WIMWC Act, which is headed "Deemed Employment of Workers", provides that Sch 1 has effect. Schedule 1 to the WIMWC Act, entitled "Deemed Employment of Workers", contains provisions deeming various categories of workers to be workers employed for the purposes of the WIMWC Act. Clause 9 in Sch 1 relevantly provides:

"9 Jockeys and harness racing drivers (1) A person who: … (c) is engaged in riding work in connection with horse racing (but not harness racing) on the racecourse or other premises of a racing club or association, is, for the purposes of this Act, taken to be a worker employed by the racing club or association." 6 A relatively minor matter was originally said to be contested between the parties in terms of a mixed question of fact and law. The plaintiff contends that:

i. at the date of the injury, Ms Curran was an apprentice jockey;

ii. as an apprentice, she was a "trainee" within the meaning of the Apprenticeship and Traineeship Act 2001 (NSW) ("the AT Act ") and within the meaning of s 158(1) of the WC Act in force at that date. 7 The defendant contends that at the time of the injury Ms Curran was a trainee within the meaning of s 158(1) of the WC Act. 8 Ultimately there does not appear to be any real difference between the positions of the plaintiff and the defendant on this issue. Division 2 of Pt 2 of the AT Act provides for the establishment of apprenticeships and traineeships. Division 3 of Pt 2 provides for the transfer, variation, suspension, cancellation and completion of apprenticeships and traineeships. An apprentice is defined as an employee who is a party to an apprenticeship contract, and includes a person who is employed as an apprentice but in respect of whom an apprenticeship contract is not yet in force. A trainee is defined in the dictionary to the AT Act as an employee who is a party to a traineeship contract, and includes a person who is employed as a trainee but in respect of whom a traineeship contract is not yet in force. Division 2 draws no distinction between apprenticeships and traineeships. Overview of the respective contentions The stance taken by the plaintiff 9 The plaintiff contends that:

i. by operation of cl 9(1)(c) in Sch 1 to the WIMWC Act , the Club was deemed to be the employer of Ms Curran;

ii. by virtue of cl 2(2) in Pt 18G in Sch 6 to the WC Act , the former s 158 of the WC Act continues to apply in the case of Ms Curran;

iii. specifically, the former s 158(3) was engaged and the Club was deemed to hold a workers compensation policy with the IMC for the liability of the Club arising under the workers compensation legislation;

iv. the Club is entitled to the benefit of the statutory workers compensation policy pursuant to s 158(3) of the WC Act issued for the IMC by the GIO, and subsequently the defendant, the NSW SIC (a continuation of the NSW Ministerial Corporation) trading as Treasury Managed Fund No 1; and

v. by operation of s 158(5), the plaintiff, as the licensed insurer of the Club, is not subject to any liability in respect of Ms Curran to the extent that the Club is indemnified by the policy of insurance deemed by s 158 to be held by the Club.

vi. The extended meaning given to employer by the Sch 1 definition of deemed employer was intended to apply, unless expressly varied, throughout the WIMWC Act . The proposition is that it would be necessary expressly to exclude the operation of the broader definition where that was the intention. The stance taken by the defendant 10 The defendant:

i. admits that Pt 18G cl 2 in Sch 6 to the WC Act provides that the former s 158 continues to apply in respect of a policy of insurance deemed to be held in respect of a trainee within the meaning of s 158 until the end of the continued insurance period;

ii. denies that s 158(3) operates to deem the Club to hold a workers compensation policy with the IMC;

iii. contends that s 158 refers to the trainee's employer in fact , namely Mr McMillan, and cannot apply to the deemed employer, the Club. The purpose and legislative history of the salient provisions 11 It is convenient to treat with the respective arguments by examining the purpose and legislative history of the provisions in focus and by then focusing upon the ultimate question for determination. In what follows, the plaintiff's overview submissions are generally adopted in relation to the purpose and legislative history of these provisions. Clause 9(1)(c) Purpose and legislative history 12 Clause 9(1)(c) in Sch 1 to the WIMWC Act applies where a person engaged in riding work in connection with horse racing (but not harness racing) rides on a racecourse a horse entrusted to him by the owner for training. The person actually doing the riding work is covered by cl 9(1)(c) and is entitled to claim compensation from the club or association which controls the racecourse in the event of injury. 13 The history of this deeming provision in the workers compensation legislation is set out in the judgment of Basten JA in Ebb v Fast Fix Steel Fixing Pty Ltd [2007] NSWCA 236 at [7]-[13]. Section 6(10) of the Workers Compensation Act 1926 (NSW) ("the 1926 Act"), was in similar terms to cl 9(1)(c), dealing with jockeys and drivers in "pony races". A schedule in similar terms to Sch 1 to the WIMWC Act provided for persons engaged in numerous occupations, including contractors, timber getters, salesmen, share farmers and jockeys, to be treated as workers for the purposes of entitlement to statutory compensation. On the repeal of the 1926 Act, these deeming provisions were included in Sch 1 to the WC Act. In 1998 the schedule was removed from the WC Act and inserted into the WIMWC Act. 14 In Ebb at [8], Basten JA described cl 9 and its predecessors as a beneficial regime designed to extend the benefits of statutory rights to compensation to persons who would not, under the general law, be considered employees of the particular employer. 15 It seems to me that the terms "worker" and "employer" have the same meanings in the WC Act as they have in the WIMWC Act [see Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 at [103]-[105] per Basten JA]. 16 In Ebb the Court considered whether a person who was deemed to be a "worker" for the purposes of the workers compensation legislation, but who was an independent contractor under general law principles, was subject to the constraints on recovery of common law damages within the workers compensation legislation. The Court held that the constraints on recovery of common law damages imposed by Pt 5 of the WC Act and Chapter 7 of the WIMWC Act do apply where the injury is suffered in the course of a deemed employment relationship, because the deeming provisions are expressed to apply "for the purposes of the Act". 17 OP Industries Pty Ltd v MMI Workers' Compensation (NSW) Ltd (1998) 17 NSWCCR 193, was a case concerned with the question whether a worker initially employed by OP Industries ("OPI") but who became an apprentice with another firm, remained a deemed employee of that other firm. The firm had arrangements with OPI for temporary lending or letting on hire to OPI of this worker's services. By s 5 of the WC Act as it then stood, Sch 1 to the WC Act applied. Pursuant to cl 1 in Sch 1 to the WC Act, if a person with whom a worker enters a contract of service or apprenticeship temporarily lends or lets on hire that worker to another person, the person with whom the worker entered the contract of service or apprenticeship "shall for the purposes of this Act, be deemed to continue to be the employer" while the worker is working for the other person. The Court of Appeal (Fitzgerald AJA, Beazley JA concurring, and Meagher JA dissenting) rejected the submission of OPI that cl 1 in Sch 1 only applied to the provisions of the WC Act relating to statutory compensation. Meagher JA in dissent held that the purpose of cl 1 in Sch 1 was to assist an injured worker to know which of several potential "employers" was liable to pay him compensation under the WC Act. In this case the claim was not for workers compensation but for common law negligence, breach of contract and breach of statutory regulations. Since it was not a claim for workers compensation, the deeming provisions did not apply. The deeming provision was only expressed to apply for the purposes of the Act. [See also Klein v Minister for Education (2007) 232 ALR 306 at [45] per Kirby J, which was concerned with the construction of Western Australian legislation. The joint judgment of Gummow, Hayne and Heydon JJ held that it was important to consider the legislative history in order to understand what the deeming provision is intended to achieve. The joint judgment was concerned with whether the deeming provision was intended to have the further effect of excluding common law causes of action.] 18 In Ebb (at [44]) Basten JA observed that Meagher JA's view in OP Industries may be preferable to that of the majority. In his view the majority was right to conclude that deemed employment was employment for the purposes of Pt 5 of the WC Act and the limitations it places on recovering damages under the WC Act. However, in his view (at [44]) the majority may have been wrong to conclude that the deeming provision identified which company was the employer for the purposes of making a claim to common law damages. His view was that this was not a purpose of the WC Act.

19 The plaintiff contends that that observation does not affect the analysis in the present case, which is not concerned with who is the employer for the purposes of a claim to general law damages. The concern in the present case is the meaning of employer found in s 158 of the WC Act. 20 The plaintiff's contention is that consistently with both OP Industries and Ebb, the proper construction of s 158 must be affected by the definition of employer in cl 9(1)(c) because the definition operates for the purposes of the WIMWC Act and for the purposes of the WC Act. 21 The defendant however submits that the fact that cl 9(1)(c) operates for the purposes of the Act(s) does not mean that s 158 is affected [cf Ebb at [57]; Hobbs v Costain Australia Limited (1995) 11 NSWCCR 56]. Sydney Turf Club v Crowley 22 Both parties referred to Sydney Turf Club v Crowley (1972) 126 CLR 420, where the High Court considered s 6(1) of the 1926 Act, which was in similar terms to cl 9(1)(c) in Sch 1 of the WIMWC Act. A stable-hand employed by a horse trainer was injured in the course of riding work at Canterbury racecourse, which were premises managed by Sydney Turf Club ("STC"). The STC had a public liability policy with GIO, which contained an exception that the GIO was not liable for claims in respect of injury arising out of or in the course of the employment of persons in the service of the Club. The STC's empowering Act required it to take out insurance with the GIO against, inter alia, claims for compensation against it under workers compensation legislation by any employee of the STC other than an employee who was a worker of the nature referred to in s 6(10) of the 1926 Act. The Australian Jockey Cub ("AJC"), a licensed insurer, had issued a workers compensation policy to the STC indemnifying it for compensation under the 1926 Act and at common law in respect of persons who were, or are deemed by the 1926 Act to be, workers of the STC. A dispute arose as to whether the AJC was liable under this policy or the GIO was liable under the public liability policy. The Full Court of the Supreme Court held that this was a case of double insurance and the payment already made by the GIO founded a defence by the AJC to the action brought against it by the STC: Sydney Turf Club v Crowley (1971) 1 NSWLR 724. The proper claim by GIO was one in equity for contribution by the AJC: (1971) 1 NSWLR 724 at 733D per Jacobs JA (with whom Mason and Manning JJA agreed).

23 The appeal to the High Court in Crowley was primarily concerned with whether the GIO was liable under the public liability policy. Barwick CJ held that the deeming provision in s 6(10) of the 1926 Act applied, as it stated, "for the purposes of this Act": (1972) 126 CLR 420 at 424.10-425.1, 425.7. The actual terms of the STC's public liability policy with the GIO were not mandated by its empowering Act. The Act did not require the STC to take out a workers compensation policy for deemed employees. The terms of the policy with the GIO determined liability [at 420 and 426.9]. The policy excluded liability for actual employees but did not exclude liability otherwise for persons injured at the racecourse. It did not exclude liability in respect of injury to the stable-hand who was not an employee of the STC. The deeming provision in s 6(1) only applied for the purposes of the 1926 Act. It did not apply for the purposes of the construction of the policy, which only excepted actual employees. GIO was liable under that policy. [As a secondary issue the AJC claimed that the policy it issued did not cover a claim made by a person at common law who was not an actual employee. The policy issued by the AJC covered common law claims for injury received in the course of the STC's business resulting from negligence, and therefore covered the claim of the stable-hand: (1972) 126 CLR 420 at 426.10-427.1. Barwick CJ (with whom Walsh and Stephen JJ concurred) held that the decision of the Full Court should be affirmed. McTiernan J reached the same conclusion, adding some observations about the inapplicability of the doctrine of subrogation. Former s 158 of WC Act Legislative history 24 In 1986 by the Workers Compensation (Amendment) Act 1986 (NSW), subsections (2A)-(2K) were inserted into s 18 of the 1926 Act to provide for workers compensation concessions to employers who engage trainees under the Australian Traineeship System. 25 Specifically s 18(2A) gave a lengthy definition of a "trainee" as a person who is a trainee under a traineeship for the purpose of the Australian Traineeship System. Section 18(2C) provided that:

"The employer of a trainee shall be deemed to hold a policy of insurance with the Government Insurance Office -

(a) for the full amount of the employer's liability under this Act in respect of that trainee; and

(b) for an unlimited amount in respect of the employer's liability independently of this Act for an injury to that trainee."

"An insurer (other than the Government Insurance Office) shall not be subject to any liability in respect of a trainee to the extent that the employer of the trainee is indemnified under a policy of insurance deemed by subsection (2C) to be held by the employer." 26 When the 1926 Act was repealed and replaced by the WC Act, the substance of s 18(2A)-(2K) was included in the WC Act as s 158. Section 158 subsequently underwent amendments, including the adoption in s 158(1) of the definition of "trainee" after the enactment of the AT Act. However the substance of the provision and its purpose did not change. 27 The former s 158 provides as follows:

(1) In this section: ' trainee ' means a person who is a trainee (other than an existing worker trainee) within the meaning of the Apprenticeship and Traineeship Act 2001 .

(2) Section 155 does not require an employer to obtain a policy of insurance in respect of a trainee.

(3) The employer of a trainee shall be deemed to hold a policy of insurance with the Insurance Ministerial Corporation for the full amount of the employer's liability under this Act in respect of that trainee and for an unlimited amount in respect of the employer's liability independently of this Act (but not including a liability for compensation in the nature of workers compensation arising under any Act or other law of another State, a Territory or the Commonwealth or a liability arising under the law of another country) for any injury (as defined in section 155(1A)) to that trainee.

(4) A policy of insurance deemed by this section to be held by an employer shall contain such provisions as are prescribed by the regulations.

(5) A licensed insurer is not subject to any liability in respect of a trainee to the extent that the employer of the trainee is indemnified under a policy of insurance deemed by this section to be held by the employer.

(6) Except as otherwise provided by this Act, a reference in this Act (other than in this section and section 159) to a policy of insurance includes a reference to a policy of insurance deemed by this section to be held by an employer.

(7) The regulations may provide that any provisions of this Act (other than this section) or the regulations: (a) shall apply with such modifications as are prescribed, or (b) shall not apply, to or in respect of: (c) a trainee, (d) the employer or a person deemed to be the employer (including an employer who is a self-insurer) of a trainee, (e) the insurer of an employer of a trainee, (f) a policy of insurance deemed by this section to be held by an employer, (g) a policy of insurance held by the employer of a trainee, or (h) the Insurance Ministerial Corporation in its role of deemed insurer under this section, and that provision shall apply, or not apply, accordingly. (8) There shall be paid out of the Consolidated Fund (which is hereby to the necessary extent appropriated accordingly) in such sums and at such times and the Treasurer directs any amount necessary to reimburse the Insurance Ministerial Corporation for payments in respect of any liability under a policy of insurance deemed by this section to be held by an employer and for any associated administrative or other expenses.

(9) The regulations may require an employer to supply to a prescribed person or body, at the prescribed times or within prescribed periods, such information with respect to trainees employed or formerly employed by the employer as may be set out in the regulations.

(10) This section does not require the Insurance Ministerial Corporation to be a licensed insurer." 28 Section 158 of the WC Act was repealed by the Workers Compensation Legislation Amendment (Trainees) Act 2003 (NSW) ("the 2003 Amending Act") Sch 1, which came into operation on 1 January 2004. The object of the 2003 Amending Act was to remove the exemption of employers of trainees from the insurance requirements imposed by s 155 of the WC Act [Explanatory Memorandum to the Workers Compensation Legislation Amendment (Trainees) Bill 2003 (NSW)]. Employers were given up to a year to comply with the new requirements. The general definition of "worker" in s 4 of the WIMWC Act was also amended to provide that trainees are workers for the purposes of the workers compensation legislation. 29 However a transitional provision was included in Sch 6 to the WC Act, entitled "Savings, Transitional and Other Provisions". Pt 18G in Sch 6 is entitled "Provisions Consequent on Enactment of 2003 Trainee Amendments". Clauses 1 and 2 in Pt 18G in Sch 6 to the WC Act, which were inserted into the WC Act by the 2003 Amending Act, relevantly provide as follows:

In this Part: · the 2003 amending Act means the Workers Compensation Legislation Amendment (Trainees) Act 2003. · trainee means a trainee within the meaning of section 158 of this Act as in force immediately before its repeal by the 2003 amending Act.

Insurance for trainees 2. (1) Section 158(2) of this Act (as in force immediately before its repeal by the 2003 amending Act) continues to have effect in relation to any person employed as a trainee immediately before that repeal until 31 December 2004, or the end of the traineeship, whichever first occurs (the end of the continued insurance period).

(2) Section 158 of this Act (as in force immediately before its repeal by the 2003 amending Act) continues to apply to an in respect of a policy of insurance deemed by that section not be held by an employer in respect of a trainee referred to in subclause (1) until the end of the continued insurance period.

(3) The repeal of section 158 by the 2003 amending Act does not affect the validity of a policy of insurance referred to in subclause (2) to the extent that it relates to any liability of the employee with respect to that trainee referred to in section 158(3) before its repeal that arises before the end of the continued insurance period. … " 30 Thus, by virtue of cl 2(2) in Pt 18G in Sch 6 to the WC Act, the former s 158 of the WC Act continues to apply in respect of a policy of insurance deemed by s 158 to be held by an employer in respect of a trainee within the meaning of s 158 until the end of the continued insurance period. This point in time is 31 December 2004 or the end of the traineeship, whichever first occurs. A small measure of agreement 31 At the least there is some small measure of agreement. I refer here to the plaintiff's acceptance of the defendant's contention that the purpose of cl 9(1)(c) is to deem the Club the employer of the worker in circumstances where the nature of the employment is likely to mean that on many occasions the injured person will not be employed pursuant to a contract of service. Decision 32 In my view the defendant's submissions are of substance. The reasons which follow generally accept the defendant's stance:

i. Each of cl 9(1)(c) and s 158 employ a deeming device to create a "statutory fiction" as that term is used in Muller v Dalgety & Co Limited (1909) 9 CLR 693 at 696. The following passage identifies the correct approach to the construction of such provisions: "When "deemed" is used in this way, Griffith CJ pointed out that it is important to consider the purpose for which the fiction has been introduced. Care must be taken to observe that the extended meaning of the word is applied but equally the reader must be aware that it is a fictitious use of the word and is only applicable in its particular context." (Pearce DC and Geddes RS, Statutory Interpretation in Australia (6th ed) at 148.)

ii. Hence in Ebb v Fast Fix Steel Fixing Pty Limited [2007] NSWCA 236 at [57] Basten JA said: "Where a deeming provision is found in a particular provision having a specific purpose, rather than a general provision of the kind now under consideration [referring to clause 2 of Schedule 1 of the WIMWC Act ], different factors may arise . Thus, a conclusion that the constraints on common law damages contained in Part 5 of the 1987 Act and Chapter 7 of the 1998 Act apply in relation to injuries occurring in the course of deemed employment, will cast no doubt on the different approach adopted in relation to sections 15, 16 and 17 of the 1987 Act, in cases such as Hobbs , University of New England and Kotevski ." [Emphasis added.] iii. It follows that in construing a deeming provision, regard must be had as to whether the purpose of the provision is general as in clause 9(1)(c) or specific as in s 158. Clause 9(1) is expressed to be "for the purposes of this Act". However s 158 is not so expressed and has a limited and specific purpose.

iv. Clause 9(1) requires that the injured person be "taken to be a worker" of the Wellington Race Club. However it does not follow from that provision that for the specific purpose of s 158(3) , the Wellington Race Club should be deemed to hold a policy nor that the Wellington Race Club should be excused from the compulsory requirement of obtaining relevant workers compensation insurance.

v. The expression "for the purposes of this Act" in this context is for the purpose of ensuring that the worker's rights to compensation under the Act are against the particular club in circumstances where because the injured person was not employed pursuant to a contract of service, he would not be entitled to payments. The purpose of the Act is to provide for the payment of compensation benefit to the injured worker and to impose the obligation to pay compensation on an "employer". In the case of persons within clause 9(1), as there may not be a contract of service, it is necessary to impose the obligation to pay compensation on an organisation which by definition is not the employer in fact.

vi. Although it may be conceded that clause 9(1)(c) has wide application "for the purpose of the Act" it does not follow that the fictional "employer" is to be substituted for the actual employer in every section of the Act. Clause 9(1) does not at least in express terms, provide that for the purposes of the Act "employer" means those persons deemed by the clause to be employers.

vii. Section 158 is contained in Part 7 which is entitled "Insurance" a Part which makes specific arrangements with respect to the (non) insurance of employers of trainees. Section 158 provides access to a fund of money for the payment of compensation benefit but does not in fact provide for an insurance indemnity.

viii. The purpose of s 158 is to provide an incentive to the engagement of trainees and apprentices by relieving the employer of the burden of complying with the requirements of s 155. The employer of an apprentice or trainee is excused from holding otherwise compulsory workers compensation insurance covering the trainee or apprentice concerned. The statutory fiction is contained in s 158(3), namely, that such an employer is deemed to hold a policy of insurance. There is in fact no policy of insurance. The terms of the policy are likewise a fiction, in the sense that the employer is deemed to hold a policy on terms of the statutory policy. The compensation is paid from the consolidated fund not from the proceeds of any insurance policy: s 158(8).

ix. It is unnecessary for the purpose of s 158 to give the word 'employer' an extended meaning to include a deemed employer. The employer of the trainee or apprentice is the actual employer by whom the trainee or apprentice is employed. Clause 9(1) does not on its terms make the racing club or association the employer. On its terms, the injured worker is taken to be a worker employed by the racing club.

x. Section 158 maintains a distinction between an employer in fact and a person "deemed to be an employer" as is apparent from s 158(7)(d). If the plaintiff's argument were correct the words "or a person deemed to be the employer" would be redundant. The plaintiff's argument points out correctly, in relation to the doctrine of common employment, that the Act maintains separate conceptions of employer and deemed employer.

xi. Hence where the Act intends to refer to the deemed employer it does so specifically. The proper construction is informed by the circumstance that where the Act intends to include deemed employers, it does so expressly.

xii. Section 158(5) only operates in the case of trainees. That subsection is consistent with the purpose of s 158 of ensuring that the employer of the trainee is not burdened with liability for workers compensation insurance.

xiii. Furthermore, the logic of clause 9(1)(c) is that the racing club or association which conducts meetings and the like will always have compulsory insurance under s 155 of the WC Act . (This is because a race club could not conduct its business without employees and therefore it is required to have workers compensation insurance generally.) However, the true employer of the trainee may have only one employee namely the trainee. Accordingly, it may not have, and may not be obliged to have, a workers compensation insurance policy.

xiv. The distinction between a true employer and a deemed employer was pointed up by the High Court in Sydney Turf Club v Crowley supra where Barwick CJ observed at 424-425: "The extension of the definition of a worker to include a stablehand riding work on a racecourse operated by a racing club is made by the Workers' Compensation Act 'for the purposes of the Act'. Such a person is deemed for the purposes of the Act to be a worker employed by the racing club. But the stablehand is not required to be treated as a worker in the employ of the racing club for any other purpose. Thus section 6(10) of the Workers' Compensation Act will not itself make the stablehand riding work for a horse trainer, a worker in the employ of the racing club within the meaning of the policy. Nor will his claim for injuries received in so riding work be, by virtue of the Workers' Compensation Act , a claim in respect of bodily injury to a person arising in the course of the employment of that person in the service of the racing club."

xv. The decision in Sydney Turf Club v Crowley turned on this distinction Barwick CJ (at 426) put the matter as follows: "In my opinion, the exception or exclusion, so far as relevant, is no more than an exception or exclusion of claims by actual employees for damages or compensation for injury received in the course of their employment by the appellant and does not extent to claims by persons, who for the purposes of the Workers' Compensation Act , would be deemed to be workers in the employ of the appellant."

xvi. Accordingly, the Sydney Turf Club case maintains the distinction between a true employer and a deemed employer for the purposes of the insurance policy.

xvii. The Ebb case was concerned with whether or not a deemed employer ought to have the benefit of the restrictions [imposed by the Workers Compensation Legislation] on workers rights and benefits: the conclusion being in the affirmative.

xviii. The proper construction of s 158 treats with a completely different circumstance, namely a clause designed to exempt an employer from the requirement to obtain insurance. 33 I reject the plaintiff's submission that s 158(7) proceeds on an assumption that "employer" in s 158 includes a person deemed to be an employer. Conclusion 34 For these reasons the proceedings are to be dismissed. Costs 35 The parties have leave to address on costs.

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.

Workers Compensation Act 1926(NSW)

Workers Compensation (Amendment) Act 1986(NSW)

Workers Compensation Legislation Amendment (Trainees) Act 2003(NSW)

Workers Compensation Regulation 2003(NSW)

Workers Compensation (General) Regulation 1987(NSW)

(1998) 17 NSWCCR 193

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