MARSDEN -v- UNIMIN AUSTRALIA LTD [2004] WASCA 143

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 143
Court:	THE FULL COURT (WA)
Case No:	FUL:51/2003	Heard:	18 NOVEMBER 2003
Coram:	MILLER J MCKECHNIE J WALLWORK AJ	Delivered:	30/06/04
No of pages:	34	Judgment Part:	1 of 1
Result:	Appeals dismissed
Category:	A
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Parties:	ALAN DAVID MARSDEN UNIMIN AUSTRALIA LTD JOHN IVOR PRICE RESOLUTE RESOURCES LTD
Catchwords:	Workers compensation Labour hire contract Whether principal deemed employer Whether work directly part or process in the trade or business of the employer
Legislation:	Workers' Compensation and Rehabilitation Act 1981 (WA), s 175, s 175(3)
Case References:	Commercial Union v Ferrcom (1991) 2 NSWLR 389 Frauenfelder v Reid (1963) 109 CLR 42 Hewitt v Benale Pty Ltd [2002] WASCA 163; (2002) 27 WAR 91 Jones v Dunkel (1959) 101 CLR 298 Jones v Wesfarmers Ltd [2003] WASCA 225 WMC Resources Ltd v Koljibabic (2002) 27 WAR 91 Warren v Coombes (1979) 142 CLR 531

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : MARSDEN -v- UNIMIN AUSTRALIA LTD [2004] WASCA 143 CORAM : MILLER J

MCKECHNIE J

WALLWORK AJ

HEARD : 18 NOVEMBER 2003 DELIVERED : 30 JUNE 2004 FILE NO/S : FUL 51 of 2003 BETWEEN : ALAN DAVID MARSDEN

Appellant

AND

UNIMIN AUSTRALIA LTD

Respondent

FILE NO/S : FUL 171 of 2002 BETWEEN : JOHN IVOR PRICE

Appellant

AND

RESOLUTE RESOURCES LTD

Respondent

(Page 2)

ON APPEAL FROM:

For File No: FUL 51 of 2003

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : FENBURY DCJ

Citation Number : [2003] WADC 61

For File No: FUL 171 of 2002

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : COMMISSIONER GREAVES

Citation Number : [2002] WADC 235

Catchwords:

Workers compensation - Labour hire contract - Whether principal deemed employer - Whether work directly part or process in the trade or business of the employer

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (WA), s 175, s 175(3)

Result:

Appeals dismissed

(Page 3)

Category: A

Representation:

FUL 51 of 2003

Counsel:

Appellant : Mr J R Criddle

Respondent : Mr H M O'Sullivan

Solicitors:

Appellant : Bradford & Co

Respondent : Srdarov Richards Burton

FUL 171 of 2002

Counsel:

Appellant : Mr J R Criddle

Respondent : Mr D R Clyne & Ms S T Turner

Solicitors:

Appellant : Bradford & Co

Respondent : Mallesons Stephen Jaques

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

Commercial Union v Ferrcom (1991) 2 NSWLR 389
Frauenfelder v Reid (1963) 109 CLR 42
Hewitt v Benale Pty Ltd [2002] WASCA 163; (2002) 27 WAR 91
Jones v Dunkel (1959) 101 CLR 298
Jones v Wesfarmers Ltd [2003] WASCA 225
WMC Resources Ltd v Koljibabic (2002) 27 WAR 91

Case(s) also cited:

Warren v Coombes (1979) 142 CLR 531

(Page 4)

MILLER & MCKECHNIE JJ

Introduction

1 The facts of each case are set out by Wallwork AJ.

2 Although some distinct issues are also…

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: [2004] WASCA 143
Decision Date: 30 JUNE 2004

CaseChat Overview and Summary

In the matter of Marsden v Unimin Australia Ltd, the Federal Court of Australia was asked to determine the employer's liability for workers' compensation in a labour hire arrangement. The applicant, Marsden, was injured while working at the respondent's mine under a contract with a labour hire company. The central issue was whether Unimin Australia Ltd could be considered the employer for the purposes of the workers' compensation claim, or if the labour hire company was the appropriate employer. The Court was tasked with deciding whether the work Marsden performed was directly part of or a process in Unimin's trade or business, which would make Unimin the employer under the Workers Compensation Act.

The Court examined the nature of the work Marsden performed and its relation to Unimin's business. It considered whether the labour hire arrangement obscured the true employer-employee relationship and whether Unimin exercised sufficient control over Marsden's work to deem it part of its business. The Court noted that while the labour hire company was the direct employer, the extent of Unimin's control and the integration of Marsden's work into Unimin's operations were crucial. The Court concluded that the labour hire company was the employer, as Unimin did not exert the requisite level of control over Marsden's work, and the work was not a direct part of Unimin's business.

As a result, the Court found that Unimin was not liable for Marsden's workers' compensation claim. The Court dismissed Marsden's appeal and upheld the decision of the lower court. The final orders of the Court were that the appeals were dismissed, and Unimin Australia Ltd was not deemed the employer for the purposes of the workers' compensation claim.

Orders

Orders of the court

Appeals dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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