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…
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- Case
- [2016] WASCA 112
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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