Kallis v Workers Compensation Nominal Insurer (iCare) - [2021] NSWPIC 70

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kallis v Workers Compensation Nominal Insurer (iCare) [2021] NSWPIC 70
APPLICANT:	Koula Kallis
FIRST RESPONDENT:	D & G Produce Pty Limited
SECOND RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
THIRD RESPONDENT:	D & G Produce (NSW) Pty Limited
FOURTH RESPONDENT:	Maria Brunetto
MEMBER:	Ms Catherine McDonald
DATE OF DECISION:	9 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Death benefit; deceased injured at premises owned by a company of which he was a director when he fell whilst assisting in the installation of replacement equipment; Held- deceased was a volunteer rather than a working director under a contract of service; Riverwood Legion and Community Club v Morse discussed; deceased was not a worker employed by the company which ran the business nor a deemed worker of that company; Malivanek v Ring Group discussed; award for the respondents.
DETERMINATIONS MADE:	1. Award for the first, second and third respondents.

STATEMENT OF REASONS

BACKGROUND

Koula Kallis and Maria Brunetto are two of the four children of Dennis Bouletos. They claim the death benefit under s 25 of the Workers Compensation Act 1987 (the 1987 Act) in respect of his death on 16 June 2017. Mr Bouletos fell from a height while upgrading an augur at premises owned by D & G Produce Pty Limited (Produce) and occupied by D & G Produce (NSW) Pty Limited (DGNSW).
To avoid confusion, I refer to Mr Bouletos’ children by their given names and no disrespect is intended.

Mr Bouletos founded the business, a manufacturer of stock feed, in about 1975. At the date of Mr Bouletos’ death, he was the sole director and shareholder of Produce.
In about 2010 John Bouletos and Adam Waters set up DGNSW and took over the manufacturing business. Either Produce or Mr Bouletos continued to own the premises and much of the plant and equipment and DGNSW paid rent of $3,000 per week to Produce.
Koula and Maria contend that Mr Bouletos was a worker employed by either Produce or DGNSW at the date of his death, performing maintenance work on the machinery at the premises. John does not agree. Neither he nor their other sister Malama Habib seek any apportionment to them of any amount payable.
Produce did not hold a policy of workers compensation insurance at the date of Mr Bouletos’ death. DGNSW is insured. Each of the Nominal Insurer and DGNSW deny that Mr Bouletos was a worker.
The main issue to be determined is whether Mr Bouletos was a worker employed by Produce or DGNSW at the date of his death, though I was informed that dependency was also in issue.

PROCEDURE BEFORE THE COMMISSION

The claim was listed for conciliation conference and arbitration hearing on 2 March 2021 by telephone.
Mr Morgan of counsel appeared for Koula, Mr McEnaney of counsel appeared for the Nominal Insurer, Mr Perry of counsel appeared for DGNSW and Mr Halligan of counsel appeared for Maria.
I am satisfied that the parties to the dispute understand the…

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: [2021] NSWPIC 70
Decision Date: 9 April 2021

CaseChat Overview and Summary

The case of Kallis v Workers Compensation Nominal Insurer (iCare) involved a dispute concerning a death benefit under workers compensation legislation. The deceased, who was a director of a company, fell and sustained injuries while assisting in the installation of replacement equipment at premises owned by the company. The central issue was whether the deceased was a volunteer or a working director under a contract of service at the time of the accident. The case was heard in a relevant Australian court.

The court was tasked with determining the legal status of the deceased at the time of the accident. Specifically, it had to decide whether the deceased was a volunteer or a working director, which would have implications for his entitlement to workers compensation. The court considered whether the deceased was employed by the company that ran the business or if he was a deemed worker under the relevant legislation. In reaching its decision, the court examined previous cases such as Riverwood Legion and Community Club v Morse and Malivanek v Ring Group.

In its reasoning, the court held that the deceased was a volunteer rather than a working director under a contract of service. It found that the deceased was not employed by the company running the business and did not fall within the definition of a deemed worker. The court concluded that the deceased's actions were voluntary and not part of his employment duties, thus he did not qualify for workers compensation under the relevant legislation. The court's decision was based on a detailed analysis of the deceased's role and the nature of his activities at the time of the accident.

The court ordered that the respondents were to be awarded the costs of the proceedings. This outcome reflected the court's determination that the deceased's status did not entitle him to a death benefit under workers compensation, leading to the conclusion that the respondents were not liable for any compensation in this matter.

Orders