Employers Mutual Limited v Julie Ann Heise  NSWSC 2018/356687
The worker bypassed the usual red tape and asked the registrar of the local court to issue a Court Attendance Notice (CAN) prosecuting the Insurer.
We usually see a CAN issued when we have been charged by Police, it’s the way we get told we have to turn up to Court for criminal or traffic charges like driving under the influence etc.
On 11 April 2017, the worker claimed compensation under s 66 Workers Compensation Act (WCA). This is the ‘claim’ for the purposes of s 283 Work Injury Management Act (WIMA). But the insurer failed to determine the claim and nothing happened.
On 25 July 2018, the worker filed an Application to Resolve a Dispute (ARD) with the WCC and the insurer filed a Reply.
The worker then requested the Registrar of the Local Court of New South Wales to issue a CAN alleging that EML breached s 283 (1) WIMA. The Registrar issued the CAN and it was served on the insurer 30 October 2018.
This happened because Section 283 WIMA states that if an Insurer doesn’t determine a claim ‘as and when required by this part’ they have committed an offence unless they have ‘a reasonable excuse for failure’.
It was allowed to happen because the Criminal Procedure Act (CPA) says that the prosecution of an offence under the Act can be instituted by a person unless the Act spells out that it can only be a ‘specified person or class of persons’. Here s245 (5) WIMA tells us that proceedings for such an offence don’t necessarily have to be started by SIRA. Section 172 CPA explains this happens by the issue and filing of the CAN, ‘in respect of a person if the person has or is suspected of having committed an offence’.
This case has significant implications because it will be authority for the proposition that SIRA is not the only party that can bring on prosecution of offences under the WIMA.