Ormwave Pty Ltd v Smith

The appeal before the New South Wales Court of Appeal concerned a determination by the Workers Compensation Commission that the respondent, Mr Smith, was employed by the appellants under a contract of employment entered into in New South Wales. This finding was crucial for establishing the Commission's jurisdiction to hear Mr Smith's claim for workers compensation for injuries allegedly sustained between 17 February 1992 and 27 February 1996. The appellants challenged this finding, arguing that there was no evidence to support the conclusion that the contract of employment was formed in New South Wales.

The primary legal issue before the Court of Appeal was whether there was any evidence to support the Workers Compensation Commission's finding that a contract of employment was entered into between Mr Smith and the appellants in New South Wales. This question was framed as a question of law, with the appellants contending that the Commission's decision was made in the absence of probative evidence, which would constitute an error of law. The Court was required to consider whether the evidence presented was capable of supporting the inferences drawn by the Commission regarding the formation of the contract.

The Court of Appeal applied the principle that the question of whether there is any evidence of a particular fact, or whether a particular inference can be drawn from established facts, is a question of law. Citing established authority, the Court affirmed that a finding of fact made in the absence of probative evidence is an error of law. The Court reviewed the evidence to determine if it could support the Commission's finding that an offer of employment was made by the appellants and accepted by the respondent in New South Wales, noting that it is not necessary to identify a precise offer, acceptance, or time of formation for a contract to be found, provided there has been a manifestation of mutual assent.

The appeal was dismissed, with the appellants ordered to pay the respondent's costs.