DSG Pty Ltd v Victorian WorkCover Authority - [2008] VSCA 42

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3824 of 2006

DSG PTY LTD
	v
VICTORIAN WORKCOVER AUTHORITY

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JUDGES:	ASHLEY and DODDS-STREETON JJA and PAGONE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 February 2008
DATE OF JUDGMENT:	3 April 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 42

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Accident compensation - Worker hired out to appellant by company which employed worker under contract of service - Injury sustained whilst employee working for appellant – Accident compensation claim made on employer – Compensation paid – Payments reimbursed by respondent – Proceeding brought by respondent under s 138 Accident Compensation Act 1985 to recover indemnity from appellant – Whether contract between appellant and employer a ‘relevant contract’ pursuant to s 9(1) – Whether appellant a ‘deemed employer’ and employee a ‘deemed worker’ pursuant to s 9(2) – Whether, if so, appellant could be a ‘third party’ for the purposes of s 138 – Whether s 9(3) precluded employer from having that status – Held, appellant not a deemed employer, s 9(3) did not operate so that the employer was denied that status, and appellant a ‘third party’ for the purposes of s 138.

Sections 9 and 138, Accident Compensation Act 1985.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M W Thompson, SC with Mr W C Grainger	Norris Coates
For the Respondent	Mr R P Gorton, QC with Mr S A O’Meara	Hall & Wilcox

ASHLEY JA:

I have had the advantage of reading in draft the reasons for judgment of Pagone AJA. I agree with his Honour that the appeal should be dismissed. I agree with his Honour that the appeal may be resolved by focussing only upon s 138 of the Accident Compensation Act 1985 (‘the Act’), and with his Honour’s analysis of that section. I also agree with his Honour that, assuming there to have been, prima facie, a ‘relevant contract’ between the appellant, DSG Pty Ltd (‘DSG’) and Catalyst Recruiting Systems Pty Ltd (‘Catalyst’) under s 9(1)(a) and (b) of the Act, such contract lost that status by operation of s 9(1)(e)(v). I further agree with his Honour’s conclusion as to the relevant interrelationship between s 9(2) and (3) of the Act. There are, however, matters which I wish to add concerning s 9. Broadly, it is my opinion that for one reason or another it is at least very unlikely that the section will have substantive application where, a ‘relevant contract’ existing, work is performed pursuant to a contract of service.

The circumstances of the matter are set out in the reasons for judgment of Pagone AJA at [83]–[84] and [94]. It is convenient to recapitulate a few of them. Ben Holt was employed by Catalyst under a contract of service. Catalyst had a business of hiring out its employees to businesses which needed additional labour. Mr Holt was hired out to DSG as a storeman. On his first day at work at DSG’s Dingley premises, he sustained injury. He did so in circumstances which…

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: [2008] VSCA 42
Decision Date: 3 April 2008

CaseChat Overview and Summary

DSG Pty Ltd, the appellant, was engaged in an agreement with another company to provide services, which included the use of the company's employees. One such employee, while working for DSG, sustained an injury. The employer, the company, received compensation from the Victorian WorkCover Authority and subsequently reimbursed the payments received. The WorkCover Authority then brought a proceeding against DSG to recover the indemnity under section 138 of the Accident Compensation Act 1985. The court was tasked with determining whether the contract between DSG and the employer was a 'relevant contract' under section 9(1) of the Act, and if DSG could be considered a 'deemed employer' and the employee a 'deemed worker' under section 9(2). Additionally, the court had to decide if DSG could be a 'third party' for the purposes of section 138, and whether section 9(3) precluded the employer from having that status.

The court examined the definitions and applicability of the terms 'relevant contract', 'deemed employer', 'deemed worker', and 'third party' within the context of the Accident Compensation Act 1985. The analysis included scrutiny of the nature of the agreement between DSG and the employer, and the implications of section 9(3) on the employer's status. The court found that while the contract was indeed a'relevant contract', DSG was not a 'deemed employer' under section 9(2). However, the court ruled that section 9(3) did not preclude the employer from being considered a 'third party', thus allowing DSG to be held as a 'third party' for the purposes of section 138.

The court concluded that DSG was not a 'deemed employer', but it was a 'third party' under the Act. Therefore, the employer's reimbursement payments to the WorkCover Authority did not preclude the Authority from recovering the indemnity from DSG. The decision affirmed that the employer could still be considered a 'third party' despite the provisions of section 9(3), and DSG, as a 'third party', was liable for the indemnity. The court's ruling was definitive in upholding the WorkCover Authority's right to recover the payments made to the employer from DSG.

Orders