Djuric v Kia Ceilings Pty Ltd

Court of Appeal

New South Wales

Case Title:

Djuric v Kia Ceilings Pty Ltd

Medium Neutral Citation:

[2011] NSWCA 34

Hearing Date(s):

03/03/2011

Decision Date:

03 March 2011

Jurisdiction:

Before:

McColl JA, Handley AJA, Sackville AJA

Decision:

Appeal dismissed with costs.
[Note:  The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system.  Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18.  Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

WORKERS COMPENSATION – independent contractor – whether regularly carrying on trade or business in own name – no question of principle

APPEAL – question of law – whether primary facts necessarily within statutory provision – no question of principle

Legislation Cited:

Workplace Injury Management and Workers Compensation Act 1998

Cases Cited:

Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139
Humberstone v Northern Timber Mills [1949] HCA 49, 79 CLR 389

Texts Cited:

Category:

Principal judgment

Parties:

Mile Djuric - Appellant
Kia Ceilings Pty Ltd - Respondent

Representation

- Counsel:

Counsel:
D E Baran – Appellant
P A Rickard – Respondent

- Solicitors:

Solicitors:
NSW Compensation Lawyers - Appellant
Goldbergs – Respondent

File number(s):

2010/66912

Decision Under Appeal

- Court / Tribunal:

- Before:

- Date of Decision:

- Citation:

- Court File Number(s)

Publication Restriction:

Judgment

1. HANDLEY AJA: This is an appeal pursuant to s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (the Act) by the compensation applicant from the decision of Acting Deputy President Candy, (the Presidential member) of the Workers Compensation Commission, who dismissed his appeal from the decision of the arbitrator, Ms Rimmer. The appeal to this Court is limited to questions of law.

1. The appellant sought compensation for a back injury due to the nature and conditions of his work as a gyprocker between 26 April and 9 July 2007 while working for the respondent.

1. The issue on the appeal is whether he was a deemed worker under s 5 and cl 2(1) of Schedule 1 of the Act. Clause 2(1) as amended with effect from 1 January 2006 provides:

"(1) Where a contract:

(a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor's own name, or under a business or firm name), or

(b) Repealed

is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor."

1. There was no dispute that under the general law the appellant was an independent contractor. The issue at all stages has been whether he was covered by cl 2(1).

1. It was common ground that he had made…