Erceg v Galati Nominees Pty Ltd - [2016] WASCA 112

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ERCEG -v- GALATI NOMINEES PTY LTD [2016] WASCA 112

CORAM: NEWNES JA
MURPHY JA

HEARD: 10 MARCH 2016

DELIVERED : 5 JULY 2016

FILE NO/S: CACV 173 of 2015

BETWEEN: GEORGE JAKOV ERCEG
Appellant
AND
GALATI NOMINEES PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :HERRON DCJ
File No  :APP 24 of 2015

Catchwords:

Workers' compensation - Claim for compensation by appellant - Whether appellant's employment had terminated before alleged accident - Turns on its own facts

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr J J Dyson

Solicitors:

Appellant: In person
Respondent: SRB Legal

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

Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Catholic Education Office of WA v Granitto [2012] WASCA 266
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Warley Pty Ltd v Adco Constructions Pty Ltd (1988) 8 BCL 300

JUDGMENT OF THE COURT: This is an appeal from a decision of Herron DCJ in the District Court, who dismissed the appellant's appeal from the decision of an arbitrator under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act). The appeal is before the court on a registrar’s notice to attend:
1.to consider an application by the appellant dated 4 January 2016 for leave to rely on the appeal on additional evidence in the form of certain taxation records; and
2.for the appellant to show cause why the appeal should not be dismissed, pursuant to rule 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA), on the basis that none of the grounds of appeal has a reasonable prospect of succeeding.
It is necessary before dealing with the issues that arise in respect of the registrar's notice to describe the relevant background to the appeal.

Background

The appellant had been employed by the respondent as a team leader in its market gardening business. He had worked on and off for the respondent for many years. On this occasion, he had worked for about 8 years up to June 2013.
It was common ground that there was a telephone conversation between the appellant and Mr Tony Galati, the managing director of the respondent, on 6 June 2013. What occurred in the course of that conversation was in dispute before the arbitrator. The respondent alleged that the appellant had resigned from his employment. That was denied by the appellant. It was also common ground that the following day the respondent had paid the sum of $9,525.27 to the appellant. The respondent said it was payment for hours worked, and annual and long service leave upon the termination of the appellant's employment. The appellant, on the other hand, said that it…

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: [2016] WASCA 112
Decision Date: 5 JULY 2016

CaseChat Overview and Summary

In this case, the appellant, Erceg, appealed against the decision of an arbitrator and subsequently the District Court, which had dismissed his claim for workers' compensation. The central issue was whether Erceg's employment with Galati Nominees Pty Ltd had terminated before the alleged accident, which would affect his entitlement to compensation. The facts in dispute included the circumstances of a telephone conversation between Erceg and Mr Tony Galati, the managing director of the respondent, on 6 June 2013. The respondent claimed that Erceg had resigned during this conversation, while Erceg denied this and argued that he had been dismissed. Another point of contention was the payment made by the respondent to Erceg on 7 June 2013, which the respondent said was for hours worked and long service leave upon termination, whereas Erceg believed it was for bonus payments owed to him.

The court had to determine whether Erceg's employment was still ongoing at the time of the accident on 10 June 2013, and if so, whether the alleged resignation or dismissal was valid. The court considered the evidence from both parties and the nature of the telephone conversation, along with the payment made to Erceg. The court also examined Erceg's conduct after the alleged resignation, including his claim for workers' compensation and his subsequent criminal charges for demanding property by written threats. Ultimately, the court found that Erceg's employment had indeed terminated before the accident, based on the evidence of the heated verbal argument and Erceg walking off the job, indicating that he no longer wished to work for the company. Consequently, the court dismissed the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: This is an appeal from a decision of Herron DCJ in the District Court, who dismissed the appellant's appeal from the decision of an arbitrator under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act). The appeal is before the court on a registrar’s notice to attend: 1.to consider an application by the appellant dated 4 January 2016 for leave to rely on the appeal on additional evidence in the form of certain taxation records; and 2.for the appellant to show cause why the appeal should not be dismissed, pursuant to rule 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA), on the basis that none of the grounds of appeal has a reasonable prospect of succeeding. It is necessary before dealing with the issues that arise in respect of the registrar's notice to describe the relevant background to the appeal. The appellant had been employed by the respondent as a team leader in its market gardening business. He had worked on and off for the respondent for many years. On this occasion, he had worked for about 8 years up to June 2013. It was common ground that there was a telephone conversation between the appellant and Mr Tony Galati, the managing director of the respondent, on 6 June 2013. What occurred in the course of that conversation was in dispute before the arbitrator. The respondent alleged that the appellant had resigned from his employment. That was denied by the appellant. It was also common ground that the following day the respondent had paid the sum of $9,525.27 to the appellant. The respondent said it was payment for hours worked, and annual and long service leave upon the termination of the appellant's employment. The appellant, on the other hand, said that it was six months of bonus payments owed to him by the respondent. On 10 June 2013, the appellant consulted his general practitioner, Dr De Almeida, and told her that he had slipped over and injured himself at work that morning. He complained of severe pain in his lower back, radiating down his left thigh. A CT scan revealed a disc protrusion and nerve root impingement. On the same day, the appellant gave an envelope containing a hand‑written letter and a medical certificate for a worker's compensation claim to Ms Sindy Goodhew, the commercial manager for the Galati group. In the letter, the appellant stated that if the respondent did not 'put this workers comp through', he would become a whistle‑blower and report various alleged incidents to Worksafe and the Department of Immigration. The appellant demanded payment of $10,000 for his 'loyalty (silence)'. In the letter the appellant said, among other things:I could not believe that after eight years of loyal service and working my guts out that [Mr Galati] has done this … I am still in shock he has done this … [Mr Galati] will find out in the next few weeks when it is busy how much I was really worth. The respondent reported the matter to the police.The appellant was subsequently charged with demanding property by written threats. On 11 February 2014, he pleaded guilty to the offence in the District Court and was fined $3,500.00. Counsel for the appellant told the court that the appellant accepted the prosecution's statement of material facts. Those facts included a statement that, on 6 June 2013, the appellant had a heated verbal argument with one of the owners of the respondent 'resulting in the [appellant] walking off the job, indicating that he no longer wished to work for the company. The [appellant] was paid out including his long service leave.'

Ratio Decidendi

Legal Principle Established

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