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…
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- Case
- [2008] VSCA 42
- Decision Date
CaseChat Overview and Summary
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.
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