Ebb v Fast Fix Steel Fixing Pty Ltd - [2007] NSWCA 236

Appeal Outcome: Special leave application refused with costs by the High Court - 7 March 2008

New South Wales

Court of Appeal

CITATION: EBB v FAST FIX STEEL FIXING PTY LTD [2007] NSWCA 236
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 10 August 2007

JUDGMENT DATE:
6 September 2007

JUDGMENT OF: Santow JA at 1; Basten JA at 2; Hislop J at 60

DECISION: Appeal dismissed with costs.

CATCHWORDS: APPEAL – leave required to reopen earlier decision of Court – factors relevant to grant of leave - WORKERS COMPENSATION – deemed worker – independent contractor – recovery of common law damages by deemed worker – application of restrictions on recovery of damages – Workers Compensation Act 1987 (NSW) Part 5 – Workplace Injury Management and Workers Compensation Act 1998 (NSW) Schedule 1 and Chapter 7 - Words and Phrases – “deemed worker” – “for the purposes of the Act”

LEGISLATION CITED: Workers’ Compensation Act 1926 (NSW), ss 6, 63, 65, Part VIII
Workers Compensation Act 1987 (NSW), ss 2A, 3, 4, 15, 16, 17, 149, 150, 151, 151A, 151B, 151C, 151D, 151E, 151F, Part 5; Schedule 1, cl 1, Schedule 6, Pt 14, cl 1
Workers’ Compensation and Injury Management Act 1981 (WA), s 175, Part X
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4, 15, 16, 17, 250, 254, Schedule 1, cls 1A, 2, 3, 3(5), 4(3), 5(2), 8(2), 13(2), Chapter 7, Division 6

CASES CITED: Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86
Hewitt v Benale Pty Ltd; WMC Resources Ltd v Koljibabic (2002) 27 WAR 91
Hobbs v Costain Australia Ltd (1995) 11 NSWCCR 56
Klein v Minister for Education [2007] HCA 2; (2007) 81 ALJR 582
Kotevski v Esselte Australia Pty Ltd [2005] NSWCA 126
Minister for Education v Klein [2005] WASCA 185
National Transport Insurance Ltd v Chalker [2005] NSWCA 62
OP Industries Pty Ltd v MMI Workers Compensation (NSW) Ltd (1998) 17 NSWCCR 193
Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166
Richardson v Mayer (No. 2) (1964) 64 SRNSW 502
Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125
The Sydney Turf Club v Crowley (1972) 126 CLR 420
University of New England v Larsen-Walsh [2000] NSWCA 363
Western Sydney Regional Organisation of Councils Group Apprentices v Statrona Pty Ltd; Commercial Union Workers’ Compensation NSW Ltd v Hannaford (unrep, NSWCA, Mahoney AP, Meagher and Sheller JJA, 29 August 1995)

PARTIES: Martin Ebb – Appellant
Fast Fix Steel Fixing Pty Ltd - Respondent

FILE NUMBER(S): CA 40487/06

COUNSEL: D.E. Baran – Appellant
M.A. Elkaim SC/J.W. Catsanos - Respondent

SOLICITORS: Stacks Goudkamp – Appellant
Moray & Agnew - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1161/06

LOWER COURT JUDICIAL OFFICER: Truss DCJ

LOWER COURT DATE OF DECISION: 20.07.06; 27.07.06

CA 40487/06
DC 1161/06

SANTOW JA
BASTEN JA
HISLOP J
6 September 2007

EBB v FAST FIX STEEL FIXING PTY LTD

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: [2007] NSWCA 236
Decision Date: 6 September 2007

CaseChat Overview and Summary

The appeal concerned a dispute between Mr Ebb (the appellant) and Fast Fix Steel Fixing Pty Ltd (the respondent). The core of the dispute revolved around whether Mr Ebb, who had suffered an injury, was a "deemed worker" for the purposes of the *Workers Compensation Act 1987* (NSW) and the *Workplace Injury Management and Workers Compensation Act 1998* (NSW). If he was a deemed worker, this would impact his ability to recover common law damages for his injury. The matter came before the Court of Appeal of New South Wales.

The primary legal issues before the Court were whether Mr Ebb qualified as a "deemed worker" under the relevant legislation, and if so, whether the restrictions on the recovery of common law damages for deemed workers, as stipulated in Part 5 of the *Workers Compensation Act 1987* and related provisions, applied to his situation. A further issue was whether leave should be granted to reopen an earlier decision of the Court, given the circumstances of the appeal.

The Court considered the factors relevant to granting leave to reopen an earlier decision, ultimately finding that such leave was not warranted in this instance. In relation to the central question of Mr Ebb's status, the Court analysed the legislative framework governing deemed workers and the conditions under which they could pursue common law damages. The Court's reasoning, which is not detailed in the provided text, led to the conclusion that Mr Ebb did not meet the criteria for a deemed worker in a manner that would permit him to recover common law damages under the applicable statutory restrictions.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the costs of the respondent.

Orders

Orders of the court

Appeal dismissed with costs.

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:	EBB v FAST FIX STEEL FIXING PTY LTD [2007] NSWCA 236 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	10 August 2007
JUDGMENT DATE:	6 September 2007
JUDGMENT OF:	Santow JA at 1; Basten JA at 2; Hislop J at 60
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	APPEAL – leave required to reopen earlier decision of Court – factors relevant to grant of leave - WORKERS COMPENSATION – deemed worker – independent contractor – recovery of common law damages by deemed worker – application of restrictions on recovery of damages – Workers Compensation Act 1987 (NSW) Part 5 – Workplace Injury Management and Workers Compensation Act 1998 (NSW) Schedule 1 and Chapter 7 - Words and Phrases – “deemed worker” – “for the purposes of the Act”
LEGISLATION CITED:	Workers’ Compensation Act 1926 (NSW), ss 6, 63, 65, Part VIII Workers Compensation Act 1987 (NSW), ss 2A, 3, 4, 15, 16, 17, 149, 150, 151, 151A, 151B, 151C, 151D, 151E, 151F, Part 5; Schedule 1, cl 1, Schedule 6, Pt 14, cl 1 Workers’ Compensation and Injury Management Act 1981 (WA), s 175, Part X Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4, 15, 16, 17, 250, 254, Schedule 1, cls 1A, 2, 3, 3(5), 4(3), 5(2), 8(2), 13(2), Chapter 7, Division 6
CASES CITED:	Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 Hewitt v Benale Pty Ltd; WMC Resources Ltd v Koljibabic (2002) 27 WAR 91 Hobbs v Costain Australia Ltd (1995) 11 NSWCCR 56 Klein v Minister for Education [2007] HCA 2; (2007) 81 ALJR 582 Kotevski v Esselte Australia Pty Ltd [2005] NSWCA 126 Minister for Education v Klein [2005] WASCA 185 National Transport Insurance Ltd v Chalker [2005] NSWCA 62 OP Industries Pty Ltd v MMI Workers Compensation (NSW) Ltd (1998) 17 NSWCCR 193 Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 Richardson v Mayer (No. 2) (1964) 64 SRNSW 502 Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 The Sydney Turf Club v Crowley (1972) 126 CLR 420 University of New England v Larsen-Walsh [2000] NSWCA 363 Western Sydney Regional Organisation of Councils Group Apprentices v Statrona Pty Ltd; Commercial Union Workers’ Compensation NSW Ltd v Hannaford (unrep, NSWCA, Mahoney AP, Meagher and Sheller JJA, 29 August 1995)
PARTIES:	Martin Ebb – Appellant Fast Fix Steel Fixing Pty Ltd - Respondent
FILE NUMBER(S):	CA 40487/06
COUNSEL:	D.E. Baran – Appellant M.A. Elkaim SC/J.W. Catsanos - Respondent
SOLICITORS:	Stacks Goudkamp – Appellant Moray & Agnew - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1161/06
LOWER COURT JUDICIAL OFFICER:	Truss DCJ
LOWER COURT DATE OF DECISION:	20.07.06; 27.07.06