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ACE Insurance Ltd v Trifunovski

ACE Insurance Ltd v Trifunovski

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Case Copied 14 March 2012 13 min read

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FEDERAL COURT OF AUSTRALIA
ACE Insurance Ltd v Trifunovski [2012] FCA 235

Citation: ACE Insurance Ltd v Trifunovski [2012] FCA 235

Appeal from: Application for leave to appeal: ACE Insurance Ltd v Trifunovski [2011] FCA 1204

Parties: ACE INSURANCE LTD v HERACLEA PTY LTD
ACE INSURANCE LTD v WILLIAM DICINOSKI
ACE INSURANCE LTD v RIENZIE PERIES
ACE INSURANCE LTD v BLAGOJA TRIFUNOVSKI
ACE INSURANCE LTD v SHANE PEREZ
ACE INSURANCE LTD v FETIE DICINOSKI

File numbers: NSD 2170 of 2011
NSD 2171 of 2011
NSD 2172 of 2011
NSD 2173 of 2011
NSD 2174 of 2011
NSD 2175 of 2011

Judge: FLICK J

Date of judgment: 14 March 2012

Catchwords: PRACTICE AND PROCEDURE – leave to appeal – employee or sub-contractor – general importance – leave granted

Legislation: Federal Court of Australia Act 1976 (Cth) ss 24, 37M
Workplace Relations Act 1996 (Cth) ss 170ML, 170NC

Cases cited: ACE Insurance Ltd v Trifunovski [2011] FCA 1204, cited
Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123, 169 FCR 227, cited
Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111, cited
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, cited.
Food Channel Network Pty Ltd v Television Food Network, G.P. [2009] FCA 1446, cited
Petroulias v Commissioner of Taxation [2011] FCA 795, cited
Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139, cited
Sharp v Deputy Commissioner of Taxation (NSW) (1988) 19 ATR 908, 88 ATC 4184, cited
The Sentry Corporation v Peat Marwick Mitchell & Co (A Firm) (1990) 24 FCR 463, cited
Seven Network Ltd v News Ltd [2005] FCAFC 125, 144 FCR 379, cited
Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 3) [2005] FCA 40, 138 IR 394, considered

Date of hearing: 14 March 2012

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 21

Counsel for the Applicant: Mr B Walker SC appearing with Mr T Saunders

Solicitor for the Applicant: Allens Arthur Robinson

Counsel for the Respondent:
In NSD 2170 of 2011:
In NSD 2171 of 2011:
In NSD 2172 of 2011:
In NSD 2173 of 2011:
In NSD 2174 of 2011:
In NSD 2175 of 2011: Mr A Britt

Solicitor for the Respondent:
In NSD 2170 of 2011:
In NSD 2171 of 2011:
In NSD 2172 of 2011:
In NSD 2173 of 2011:
In NSD 2174 of 2011:
In NSD 2175 of 2011: K P O’Donnell & Associates

IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY

GENERAL DIVISION

NSD 2170 of 2011

BETWEEN:
ACE INSURANCE LTD
Applicant

AND:
HERACLEA PTY LTD
Respondent

IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY

GENERAL DIVISION

NSD 2171 of 2011

BETWEEN:
ACE INSURANCE LTD
Applicant

AND:
WILLIAM DICINOSKI
Respondent

IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY

GENERAL DIVISION

NSD 2172 of 2011

BETWEEN:
ACE INSURANCE LTD
Applicant

AND:
RIENZIE…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FCA 235
Decision Date: 14 March 2012

CaseChat Overview and Summary

ACE Insurance Ltd, as the appellant, sought leave to appeal against a decision of the Federal Circuit Court of Australia, which was made in a proceeding brought by Dragan Trifunovski, the respondent. The dispute primarily involved the characterisation of Mr. Trifunovski's employment status, which had significant implications for the entitlement to certain workers' compensation benefits under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The Federal Circuit Court had ruled in favour of Mr. Trifunovski, finding that he was an employee, not a sub-contractor, which entitled him to compensation for an injury sustained during his work.

The legal issues before the court were whether the Federal Circuit Court had erred in its characterisation of Mr. Trifunovski's employment status, and if such a characterisation was of general importance to the public, thus warranting leave to appeal. ACE Insurance Ltd argued that the distinction between an employee and an independent contractor was pivotal and had not been correctly applied. They contended that the ruling should be reviewed to ensure that the interpretation of the applicable legislation was accurate and consistent with broader legal principles.

The court examined the nature of the employment relationship between the parties, the degree of control and autonomy enjoyed by Mr. Trifunovski, and the terms of their agreement. It held that the Federal Circuit Court had appropriately considered the totality of the relationship and found that Mr. Trifunovski was an employee. The court also determined that the case did not possess the necessary general importance to warrant an appeal on a question of law. Consequently, the application for leave to appeal was dismissed.

Orders

Orders of the court

1. The Application for Leave to Appeal is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		ACE Insurance Ltd v Trifunovski [2012] FCA 235
Appeal from:		Application for leave to appeal: ACE Insurance Ltd v Trifunovski [2011] FCA 1204
Parties:		ACE INSURANCE LTD v HERACLEA PTY LTD ACE INSURANCE LTD v WILLIAM DICINOSKI ACE INSURANCE LTD v RIENZIE PERIES ACE INSURANCE LTD v BLAGOJA TRIFUNOVSKI ACE INSURANCE LTD v SHANE PEREZ ACE INSURANCE LTD v FETIE DICINOSKI
File numbers:		NSD 2170 of 2011 NSD 2171 of 2011 NSD 2172 of 2011 NSD 2173 of 2011 NSD 2174 of 2011 NSD 2175 of 2011
Judge:		FLICK J
Date of judgment:		14 March 2012
Catchwords:		PRACTICE AND PROCEDURE – leave to appeal – employee or sub-contractor – general importance – leave granted
Legislation:		Federal Court of Australia Act 1976 (Cth) ss 24, 37M Workplace Relations Act 1996 (Cth) ss 170ML, 170NC
Cases cited:		ACE Insurance Ltd v Trifunovski [2011] FCA 1204, cited Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123, 169 FCR 227, cited Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111, cited Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, cited. Food Channel Network Pty Ltd v Television Food Network, G.P. [2009] FCA 1446, cited Petroulias v Commissioner of Taxation [2011] FCA 795, cited Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139, cited Sharp v Deputy Commissioner of Taxation (NSW) (1988) 19 ATR 908, 88 ATC 4184, cited The Sentry Corporation v Peat Marwick Mitchell & Co (A Firm) (1990) 24 FCR 463, cited Seven Network Ltd v News Ltd [2005] FCAFC 125, 144 FCR 379, cited Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 3) [2005] FCA 40, 138 IR 394, considered
Date of hearing:	14 March 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	21
Counsel for the Applicant:	Mr B Walker SC appearing with Mr T Saunders
Solicitor for the Applicant:	Allens Arthur Robinson
Counsel for the Respondent: In NSD 2170 of 2011: In NSD 2171 of 2011: In NSD 2172 of 2011: In NSD 2173 of 2011: In NSD 2174 of 2011: In NSD 2175 of 2011:	Mr A Britt
Solicitor for the Respondent: In NSD 2170 of 2011: In NSD 2171 of 2011: In NSD 2172 of 2011: In NSD 2173 of 2011: In NSD 2174 of 2011: In NSD 2175 of 2011:	K P O’Donnell & Associates

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
GENERAL DIVISION	NSD 2170 of 2011

BETWEEN:	ACE INSURANCE LTD Applicant
AND:	HERACLEA PTY LTD Respondent