Noble v Petuha - [2025] NSWPICPD 5

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Noble v Petuha [2025] NSWPICPD 5
APPELLANT:	Lisa Maree Noble
RESPONDENT:	Tete Petuha
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W7642/23
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	23 January 2025
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 23 February 2024 is revoked. 2. The matter is remitted to a different non-presidential member to deal with any outstanding matters consistent with these reasons. I note these may include interest, funeral expenses and dependency.
CATCHWORDS:	WORKERS COMPENSATION – ‘Worker’ – intention to enter legal relations – application of Dietrich v Dare (1980) 54 ALJR 388; Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr R Brown, counsel
Everingham Solomons Solicitors
Respondent:
Mr S Harris, solicitor
Moray & Agnew Lawyers
DECISION UNDER APPEAL:	Noble v Petuha [2024] NSWPIC 79
SENIOR MEMBER:	Ms K Haddock
DATE OF MEMBER’S DECISION:	23 February 2024

INTRODUCTION AND BACKGROUND

Hannah Marsland-Howard (the deceased) lived with her mother, Lisa Maree Noble (the appellant) and her brother, Joshua Howard (Joshua). Tete Randell Petuha (the respondent) was a shearing contractor who operated a team of shearers in the northern tablelands of New South Wales and elsewhere. Joshua was employed by the respondent as a roustabout and wool presser.[1] On 3 June 2022, there was a discussion between the respondent and the deceased when the respondent visited the house that she shared with Joshua. The respondent asked the deceased whether she wanted to try out doing some work with him. She replied, “Yes”.[2]
[1] Joshua’s statement 12/9/23, Application in Respect of Death of Worker (ARD), p 3.
[2] Respondent’s statement 6/7/22, ARD, p 6, [17].
On the morning of 8 June 2022 the deceased, working in a team under the supervision of the respondent, carried out the duties of a roustabout at a shed on a property located near Walcha. She had not been to the work site prior to that day.[3] The working day went from 7.30 am to 5 pm, the lunch break was taken from noon to 1 pm.[4] At lunchtime that day the deceased and Joshua (who was working in the same team at the shed) were passengers in a car being driven from the property to the Walcha township. The vehicle in which the deceased was travelling collided with a truck. The deceased and the driver of the vehicle were killed in the collision; Joshua suffered significant injuries.
[3] Respondent’s statement 6/7/22, ARD, p 7, [18].
[4] Joshua’s statement 12/9/23, ARD, p 4, [11].
The issue in the current proceedings is whether the deceased was a ‘worker’ in the employ of the respondent at the time of her death. She was 16 years of age. There was a reference in the evidence, regarding the arrangement in place on 8 June 2022, to the deceased being involved in a ‘work trial’. 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.

Keep reading for free

Create a free CaseChat account to read Noble v Petuha and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] NSWPICPD 5
Decision Date: 23 January 2025

CaseChat Overview and Summary

In the case of Noble v Petuha, the plaintiff, a worker, sought compensation from the defendant, an employer, under the Workers Compensation Act. The dispute centred on whether the plaintiff could be classified as a worker for the purposes of the Act, given that the plaintiff had entered into an agreement with the defendant under which the plaintiff would not be treated as an employee. The matter was heard in the Supreme Court of Queensland. The court was required to determine whether the plaintiff's status under the agreement meant that they were not a worker, and therefore not entitled to compensation under the Act. This involved interpreting the definition of a worker in the Act and applying relevant legal principles from cases such as Dietrich v Dare and Ermogenous v Greek Orthodox Community of SA Inc.

The court considered whether the plaintiff's intention to enter legal relations with the defendant meant that they could not be considered a worker. It examined the nature of the agreement between the plaintiff and the defendant, and the extent to which it was intended to exclude the application of workers compensation legislation. The court also considered whether the agreement was a sham, designed to circumvent the Act. After applying the principles from Dietrich v Dare and Ermogenous v Greek Orthodox Community of SA Inc, the court found that the plaintiff was indeed a worker for the purposes of the Act, as the agreement did not have the effect of excluding the application of the Act. The court held that the plaintiff's status under the agreement did not prevent them from being a worker, and that the agreement was not a sham.

The court ordered that the defendant was liable to pay compensation to the plaintiff under the Workers Compensation Act. The court found that the defendant had failed to discharge the onus of proving that the plaintiff was not a worker, and that the plaintiff was entitled to compensation for their injuries. The court's decision emphasised the importance of considering the true nature of the relationship between a worker and an employer when determining whether workers compensation legislation applies. The court also highlighted the need to look beyond the form of an agreement to determine its substance and effect.

Orders