Musija v Kresa - [2010] VSCA 163

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3735 of 2009

JOHN MUSIJA	First Appellant
JOHN MUSIJA	and
ALLIANZ AUSTRALIA WORKERS’ COMPENSATION (VIC) LIMITED (ACN 059 835 791)	Second Appellant
v
RUDOLF KRESA	Respondent

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JUDGES	NEAVE and REDLICH JJA and HANSEN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 April 2010
DATE OF JUDGMENT	24 June 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 163
JUDGMENT APPEALED FROM	Kresa v Musija (Unreported, County Court of Victoria, Judge Shelton, 30 September 2008)

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ACCIDENT COMPENSATION – Respondent injured when performing carpentry work for first appellant – Whether respondent a ‘worker’ – Accident Compensation Act 1985, s 5 – Judge did not wrongly rely on circumstances of alleged worker’s earlier engagement to characterise later engagement – Judge did not take account of irrelevant factors – Reasons not inadequate – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellants	Mr J J Noonan SC with Mr G K Coldwell	Wisewould Mahony
For the Respondent	Mr M O’Loghlen QC with Mr C A Miles	Holding Redlich

NEAVE JA
REDLICH JA
HANSEN AJA:

The respondent, Rudolf Kresa, seriously injured his left hand while doing carpentry work on a house being built by the first appellant, John Musija. Mr Kresa sought compensation for his injury under the Accident Compensation Act 1985 (the ‘Act’). The learned trial judge made a preliminary decision[1] that Mr Kresa was a ‘worker’ employed under a contract of service, within the meaning of s 5 of the Act.[2] The appellants now appeal from that preliminary decision under s 52 of the Act.
[1]County Court Civil Procedure Rules 2008, r 47.04.
[2]It was not argued on behalf of Mr Kresa that although he was an independent contractor he was to be deemed to be working under a contract of service by virtue of s 8 or s 9 of the Act. In his closing address counsel for the appellants argued that neither of these sections applied.

The appellants contend that his Honour erred in his application of the criteria relevant to determining whether Mr Kresa was, at the time he sustained his injury, a ‘worker’ within the meaning of the Act. They also claim that his Honour’s reasons for that conclusion were inadequate. Both these issues are said to fall within s 52 because they were questions of law ‘raised during the proceedings’ in the County Court.

Background

Mr Kresa was born in Czechoslovakia (as it then was) in 1946 and migrated to Australia in 1985, bringing with him a trade qualification in carpentry. Between 1985 and 1989 he worked mainly as a plasterer, but also did some carpentry work.

In 1989 he moved to Queensland after injuring his Achilles tendon. He continued working as a plasterer but again did some carpentry work until his return to Victoria in 1994. After his return, Mr Kresa had difficulty obtaining employment and was in receipt of unemployment benefits. When he was introduced to Mr Musija by his son, Radin Kresa (who lived next door), in…

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: [2010] VSCA 163
Decision Date: 24 June 2010

CaseChat Overview and Summary

Musija v Kresa was a case before the Court of Appeal of the Supreme Court of Victoria, involving a dispute about the eligibility of an individual, Musija, for workers' compensation under the Accident Compensation Act 1985 following an injury he sustained while performing carpentry work for the first appellant, Kresa. The primary question for the court was whether Musija qualified as a 'worker' under section 5 of the Act, given that his employment arrangement appeared to be more akin to that of an independent contractor than an employee. The court was also tasked with determining if the primary judge had erred in his assessment of the nature of Musija's engagement with Kresa by considering the circumstances of an earlier engagement that was not the subject of the current claim.

The court found that the primary judge did not mischaracterise Musija's employment status by taking into account the nature of his earlier engagement. It was held that the primary judge had not relied on irrelevant factors or failed to consider pertinent evidence. The court confirmed that the characterisation of the employment relationship was properly assessed based on the totality of the evidence, which included the terms of the agreement, the control exercised by the first appellant over Musija, and the mutuality of obligation between the parties. The court further determined that the reasons provided by the primary judge were adequate and did not suffer from any jurisdictional error.

As a result, the appeal brought by the first appellant was dismissed. The court upheld the decision that Musija was indeed a worker under the Accident Compensation Act 1985, and therefore, eligible for workers' compensation. The reasoning provided by the primary judge was considered sound, and the appeal was rejected on the basis that no error was found in the characterisation of the employment relationship or the application of the relevant statutory provisions.

Orders