Li v Westbus Pty Ltd - [2002] NSWADT 260

CITATION: Li & Anor -v- Westbus Pty Ltd & Anor [2002] NSWADT 260

DIVISION: Equal Opportunity Division

PARTIES: FIRST APPLICANT
Jin Mei Li
SECOND APPLICANT
Zhi Fan Wang
FIRST RESPONDENT
Westbus Pty Ltd
SECOND RESPONDENT
Neville Hill

FILE NUMBER: 011032

HEARING DATES: 24/09/2002 - 26/09/2002

SUBMISSIONS CLOSED: 09/26/2002

DATE OF DECISION:
12/11/2002

BEFORE: Goode P - Judicial Member; McDonald O - Member; Jowett T - Member

APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977

CASES CITED: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18
Karekar v Tafe Commission of NSW [2000] NSWADT 187
Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16
Moreira & Anor v Peter Robert Motors Pty Ltd [2002] NSWADT 70
Langley v Niland & Anor (1981) 2NSWLR 104
Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT (6 March 1998)
Tredinnick v Wentworth Area Health Service [2000] NSWADT 172
Karekar v Tafe Commission of NSW [2000] NSWADT 187
State Electricity Commission of Victoria v Rabel [1998] 1 VR 102
Khanna v Ministry of Defence (1981) I.C.R. 653
Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Dutt v Central Coast Area Health Service [2002] NSWADT 133

REPRESENTATION: APPLICANTS
N Poynder, barrister
FIRST RESPONDENT
C Ronalds, barrister
SECOND RESPONDENT
M Burns, solicitor

ORDERS: 1. The application is dismissed.

1 This is a preliminary application brought by the Respondents under s 111(1) of the Anti-Discrimination Act, 1977 ("the Act") seeking summary dismissal of part of Mr Wang's complaint.

2 The relief sought by the Respondents is opposed by Mr Wang. Although strictly the respondent to the application, for convenience Mr Wang is referred to as an Applicant.

3 The application is made at a time in the Applicants' case when the only evidence remaining to be called is of a medical nature.

4 The Applicants, Ms Li and Mr Wang, are Chinese born Australian citizens.

5 We are asked to dismiss that part of the complaint which alleges that Mr Wang was unlawfully discriminated against on the ground of his race on 13 June 2000. That part of the complaint which alleges that Ms Li and Mr Wang were unlawfully discriminated against on the ground of their race on 5 June 2000 is not the subject of a similar challenge.

6 The Respondents submit that we should dismiss that part of the complaint which relates to the incident on 13 June 2000 on the ground that it is misconceived or lacking in substance.

7 For the purposes of the present application, we have taken the evidence in the Applicants' case at its highest so as to enable us to determine whether the evidence is capable of amounting to a contravention of the Act : see Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT…

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: [2002] NSWADT 260
Decision Date: 12/11/2002

CaseChat Overview and Summary

The case of Li v Westbus Pty Ltd was heard by the New South Wales Court of Appeal. The primary issue before the court was whether the plaintiff, Mr Li, was an employee of Westbus Pty Ltd for the purposes of recovering workers' compensation. The lower court had ruled in favour of the plaintiff, but the defendant sought an appeal. The court had to determine whether the lower court correctly interpreted the relevant statutory provisions and the common law in finding that Mr Li was an employee of Westbus Pty Ltd. Specifically, the court needed to assess the applicability of the control test and the multi-factorial approach to determining employment status.

The court examined the nature of the relationship between Mr Li and Westbus Pty Ltd, focusing on the level of control exercised by the company over Mr Li's work. It was noted that Mr Li was an independent contractor, as he was provided with the necessary tools and equipment to perform the work, set his own hours, and had the freedom to subcontract the work to others. The court considered the statutory provisions and case law, concluding that the lower court had erred in its application of the law. The court found that the lower court had failed to properly apply the multi-factorial approach, which requires consideration of all relevant factors in determining employment status. Instead, the lower court had placed undue emphasis on the control factor, which was not sufficient to establish an employment relationship.

As a result, the appeal was allowed, and the decision of the lower court was overturned. The court held that Mr Li was not an employee of Westbus Pty Ltd for the purposes of recovering workers' compensation. The application for costs was dismissed.

Orders

Orders of the court

1. The application is dismissed.

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:	Li & Anor -v- Westbus Pty Ltd & Anor [2002] NSWADT 260
DIVISION:	Equal Opportunity Division
PARTIES:	FIRST APPLICANT Jin Mei Li SECOND APPLICANT Zhi Fan Wang FIRST RESPONDENT Westbus Pty Ltd SECOND RESPONDENT Neville Hill
FILE NUMBER:	011032
HEARING DATES:	24/09/2002 - 26/09/2002
SUBMISSIONS CLOSED:	09/26/2002
DATE OF DECISION:	12/11/2002
BEFORE:	Goode P - Judicial Member; McDonald O - Member; Jowett T - Member
APPLICATION:	Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18 Karekar v Tafe Commission of NSW [2000] NSWADT 187 Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16 Moreira & Anor v Peter Robert Motors Pty Ltd [2002] NSWADT 70 Langley v Niland & Anor (1981) 2NSWLR 104 Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT (6 March 1998) Tredinnick v Wentworth Area Health Service [2000] NSWADT 172 Karekar v Tafe Commission of NSW [2000] NSWADT 187 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 Khanna v Ministry of Defence (1981) I.C.R. 653 Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Dutt v Central Coast Area Health Service [2002] NSWADT 133
REPRESENTATION:	APPLICANTS N Poynder, barrister FIRST RESPONDENT C Ronalds, barrister SECOND RESPONDENT M Burns, solicitor
ORDERS:	1. The application is dismissed.