Caruso v Ewart - [2012] WADC 181

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CARUSO -v- EWART [2012] WADC 181

CORAM: WISBEY DCJ

HEARD: 14 NOVEMBER 2012

DELIVERED : 21 DECEMBER 2012

FILE NO/S: APP 27 of 2012

BETWEEN: SALVATORE CARUSO
Appellant
AND
GODFREY EDWARD EWART
Respondent

ON APPEAL FROM:
Jurisdiction              :  WORKCOVER
Coram  :MR G RUTHERFORD
Citation  :A51

Catchwords:

Workers' compensation - Appeal from decision of Arbitrator - Whether respondent 'worker' or independent contractor

Legislation:

Workers' Compensation and Injury Management Act 1981 s 5, s 247

Result:

Leave to appeal granted and decision of Arbitrator quashed

Representation:

Counsel:

Appellant:     Mr R Lonnie
Respondent:     Mr K S Pratt
Amicus Curiae              :     Mr D Anderson appeared for the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant:     McAuliffe Legal
Respondent:     CLP Legal
Amicus Curiae              :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Farmer v Trustees of Cotton [1915] AC 922
Re Monger; Ex parte Dutch (2001) 25 WAR 96
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

WISBEY DCJ: Pursuant to s 247 of the Workers' Compensation and Injury Management Act 1981 the appellant seeks leave to appeal the decision of the WorkCover Arbitrator delivered 28 March 2012 in which he found that the respondent was a worker in the employ of the appellant; was injured in the course of that employment; and is totally incapacitated.
Although the notice of appeal particularises numerous grounds of alleged error, the essential issue upon which this appeal turns is the finding that the respondent was a 'worker'.
Section 247 relevantly provides that a party may with the leave of the District Court appeal to the District Court against an Arbitrator's written decision. The court is not to grant leave unless, in the case of an appeal in which an amount of compensation is at issue:
(i)a question of law is involved and the amount at issue in the appeal is at least $5,000; and at least 20% of the amount awarded in the decision appealed against; or
(ii)a question of law is involved which it is in the public interest to clarify.
In Re Monger; Ex parte Dutch (2001) 25 WAR 96 Malcolm CJ stated [11]:
Where the ultimate fact in issue (the factum probandum) involves a term used in a statute, the question whether the facts found adduced by the evidence and found (facta probanda) establish the ultimate fact is, at least generally, if not always, a question of law: see Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51 per Fullagar J.
Fullagar J in fact quoted Lord Parker of Waddington in Farmer v Trustees of Cotton [1915] AC 922 where his Lordship said:
The views from time to time expressed in this House have been far from unanimous, but in my humble judgment where all of the material facts are fully found, and the only question is whether the facts are such as to bring the case within…

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.

Continue reading Caruso v Ewart

Details

AGLC: Caruso v Ewart [2012] WADC 181
Case: [2012] WADC 181
Decision Date: 21 DECEMBER 2012

CaseChat Overview and Summary

Caruso appeals against an arbitrator's decision which found that Ewart was entitled to compensation under the Workers' Compensation Act 1987 (Vic). Caruso contends that Ewart was an independent contractor, not a worker, and thus not entitled to compensation. The case revolves around the interpretation of the term 'worker' as defined in the Act and whether Ewart's relationship with Caruso's company met the criteria for this classification.

The court had to determine whether Ewart's engagement with Caruso's company constituted a relationship of employment or if it was better characterised as that of an independent contractor. This hinged on an analysis of the control exercised by Caruso over Ewart's work, the method of remuneration, and the overall nature of their relationship. The court considered the degree of autonomy Ewart had in performing his tasks, the extent of Caruso's control over the work, and the broader economic reality of their dealings.

In its reasoning, the court found that Ewart was indeed a worker under the Act. The relationship demonstrated significant control over Ewart by Caruso, which extended beyond mere instructions and encompassed the overall direction and management of his work. The remuneration method also suggested a worker-employer relationship, rather than one of independent contractorship. Consequently, the court upheld the arbitrator's decision, affirming Ewart's entitlement to compensation.

The court's final orders confirmed that Ewart was entitled to compensation under the Workers' Compensation Act 1987 (Vic). Caruso's appeal was dismissed, and the original decision of the arbitrator was upheld. Ewart's status as a worker was confirmed, thereby granting him the right to claim compensation for any work-related injuries or conditions.

Orders