Shaw v Bindaree Beef Pty Ltd - [2007] NSWCA 125

No judgment structure available for this case.

Appeal Outcome: Special leave refused with costs by the High Court - 16 November 2007

New South Wales

Court of Appeal

CITATION: Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17 May 2007

JUDGMENT DATE:
4 June 2007

JUDGMENT OF: Spigelman CJ at 1; Giles JA at 2; Basten JA at 76

DECISION: (By majority) (1) Refuse leave to amend the notice of appeal to add the proposed ground 6. (2) Appeal dismissed with costs.

CATCHWORDS: Personal injury - injury at processing plant - who was employer - employed by company conducting processing plant - then became trainee under training contract - different company named as employer in training contract - continued with same work - continued to be paid by first company - circumstances in which second company named as employer - not with clear consciousness it was to be the employer - effect of Apprenticeship and Training Act 2001 - if second company was employer, whether Workers Compensation Act 1987 or Workplace Injury Management and Workers Compensation Act 1998 made first company the employer for the purposes of those acts.

LEGISLATION CITED: Apprenticeship and Traineeship Act 2001
Vocational Education and Training Accreditation Act 1990
Vocational Education and Training Act 2005
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998.

CASES CITED: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Bird v Commonwealth (1988) 165 CLR 1
Carroll v Mijovich (1991) 25 NSWLR 441
Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226
Coulton v Holcombe (1986) 162 CLR 1
Ermogenous v Greek Orthodox Community of SA Inc (2001) 209 CLR 95
Hewitt v Benale Pty Ltd (2002) 27 WAR 91
Ingram v Little [1961] 1 QB 31
Klein v Minister for Education [2007] HCA 2
Kotevski v Esselte Australia Pty Ltd [2005] NSWCA 126
Lissenden v CAV Bosch Ltd (1940) AC 412
National Transport Insurance Ltd v Chalker [2005] NSWCA 62
Ocean Road Motel Pty Ltd v Pacific Acceptance Corporation Ltd (1963) 109 CLR 276
OP Industries Pty Ltd v MMI Workers Compensation (NSW) Ltd (1998) 17 NSWCCR 193
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451
Pitcher v Langford (1991) 23 NSWLR 142
Rydelar Pty Ltd v Euphoric Pty Ltd [2001] NSWCA 65
State Planning Authority (NSW) v Nash [1974] 1 NSWLR 684
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Taylor v Johnson (1983) 151 CLR 422
Toll (FGCT) Pty Ltd v Alphaparm Pty Ltd (2004) 219 CLR 165
VACC Insurance Ltd v BP Australia Ltd (1999) 47 NSWLR 716
Water Board v Moustakas (1988) 180 CLR 491
Western Sydney Regional Organisation of Councils Group Apprentices v Statrona Pty Ltd (2002) 12 ANZ Ins Cas 61-530

PARTIES: Jason Ronald Shaw - Appellant
Bindaree Beef Pty Ltd - Respondent

FILE NUMBER(S): CA 40518/06

COUNSEL: S Campbell SC & D Toomey - Appellant
L King SC & J Priestley - Respondent

SOLICITORS: Lee Sames Egan, Coffs Harbour - Appellant
Johnstone Robinson Legal - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 50/2005

LOWER COURT JUDICIAL OFFICER: Phegan DCJ

LOWER COURT DATE OF DECISION: 4 August 2006

LOWER COURT MEDIUM NEUTRAL CITATION: (Phegan DCJ, 4 August 2006, unreported)

CA 40518/06
DC 50/05

SPIGELMAN CJ
GILES JA
BASTEN JA
Monday 4 June 2007

SHAW v BINDAREE BEEF PTY LTD

Judgment

1 SPIGELMAN CJ: I agree with Giles JA.

2 GILES JA: On 11 July 2002 Mr Jason Shaw was injured working in the meat processing plant of Bindaree Beef Pty Ltd (“Bindaree”). He claimed that, when trimming carcasses prior to loading them into trucks, he was pulled from behind whilst holding a carcass and his left shoulder and neck were jerked and stretched. He alleged that this was occasioned by negligence of the person who pulled him, his immediate supervisor, and of Bindaree in failing to have a proper system of supervision to control the activities of the supervisor.

3 Mr Shaw brought proceedings in the District Court against Bindaree, claiming damages for personal injury. He did so not on the basis that Bindaree was his employer, but alleging that he was employed by a different entity, Yolarno Pty Ltd (“Yolarno”), as a trainee directed to work in Bindaree’s meat processing plant.

4 Whether Mr Shaw was employed by Yolarno rather than Bindaree was critical to his entitlement to recover damages. If he was employed by Bindaree, he could not bring proceedings against it without first taking steps required by the Workplace Injury Management and Workers Compensation Act 1998 (“the WIM Act”), and his damages would be assessed under the modified common law damages regime of the Workers Compensation Act 1987 (“the WC Act”). He had not taken the steps, and at some point it became accepted that his degree of permanent impairment did not pass the threshold for damages under the modified common law damages regime. But these impediments did not apply if he was employed by Yolarno.

5 Bindaree filed a defence in the proceedings, amongst other matters alleging that Mr Shaw was employed by it rather than Yolarno. An order was made for separate decision of the questions -

“2.1 Was Bindaree Beef Pty Ltd the employer of the plaintiff for the purpose of the Workers Compensation legislation as at the date of the accident the subject of the plaintiff’s claim, being on or about 11 July 2002?

2.2 In the event that the answer to the question in order 1.1 [sic] is ‘yes’, should the plaintiff’s proceedings be dismissed?

6 The separate questions were heard by Phegan DCJ. His Honour answered questions 1 and 2 in the affirmative, and answered question 3 by an order that Bindaree pay Mr Shaw’s costs up to and including a certain date and Mr Shaw pay Bindaree’s costs from that date. While no order was reproduced in the appeal papers, it appears that thereafter an order was made that the proceedings be dismissed.

7 Two of the grounds of appeal as filed were abandoned; those remaining were -

“1. The learned Trial Judge failed to discharge his duty to provide reasons for his decision.

…

4. In determining the answer to separate question 1 [sic], the learned Trial Judge failed to have proper regard to the provisions of the Apprenticeship and Trainee Act 2001 and in particular ss 7, 8 and 12.

8 Mr Shaw applied at the hearing of the appeal for leave to add a further ground of appeal; Bindaree opposed the grant of leave. The ground was -

“6. The learned Trial Judge erred by failing to find the Respondent estopped from arguing, contrary to the terms of the training contract, that it was in fact the Appellant’s employer.”

The issue as to employer

9 Bindaree and Yolarno were associated entitles. Yolarno was described as the holding company of a group, but it was also said that the companies in the group had common directors and shareholders. Company searches supported the latter, and at least as between Bindaree and Yolarno it was a sibling relationship.

10 The group activities focussed on the conduct of an abattoir at Inverell. Yolarno undertook administration and stock buying, with a staff of approximately 66 persons. A company variously described as Northeast Exports Ltd and North East Meats Pty Ltd engaged in slaughtering activities, with a staff of approximately 147 persons. Bindaree engaged in the boning, packing and load-out operations at the abattoir, and it seems also maintenance, with a staff of approximately 311 persons.

11 Mr Shaw was employed by Yolarno from 8 May 1997 to 30 June 1999 as a storeman. After a period elsewhere, on 15 February 2002 he took employment with Bindaree as a labourer. By condition 2 of the written conditions of employment his employment was “on a six (6) month, on the job, trial basis”, at the end of which he could be offered permanent employment, or his trial period could be extended, or his employment could be terminated. By condition 11 -

“11. I agree that as part of my employment I may be required to enter into traineeship, and I understand that on the completion of this traineeship I am not guaranteed on-going employment.”

12 Mr Shaw was put to work in the load-out section of the abattoir, the section where he later suffered his injury.

13 According to Mr Shaw, in early May 2002 “a person from management” asked whether he would like to go onto a traineeship. He was not keen, but the person said, “Well we are putting your position into a trainee’s position, and that is all that will be available”, so he agreed. What he described as a Training Contract Application Form (“the first Form”) was signed. Mr Shaw continued working in the load-out section as before.

14 Still according to Mr Shaw, when he became aware that the traineeship may require him to work in various areas of the abattoir rather than the load-out section, which he enjoyed, he approached “one of the administrators/management staff”, Ms Sandra Trevithick. That led to discussions in which Mr Shaw said that he did not really want to do the traineeship; he was told that if he did not go on the traineeship scheme he would not “get put on permanent”; and either Ms Trevithick or one of the floor managers at the abattoir said, “OK just sign it and you can stay down there working in the load-out section”. Mr Shaw signed what he called “a new copy” of the Training Contract Application Form (“the second Form”), as did Ms Trevithick. Mr Shaw continued doing the same work in the load-out section.

15 The first Form was not in evidence. Ms Trevithick, called on behalf of Bindaree, gave no evidence of an early May traineeship approach or a first Form. It is not clear why the discussions later in May meant that a second Form was signed; so far as appears, if the first Form had been signed it would have continued in place but with agreement that Mr Shaw could remain in the load-out section. The second Form, the document next referred to, did not say anything about him staying working in the load-out section. I do not think, however, that decision of the appeal calls for further resolution of what happened, if anything, prior to signature of the second Form.

16 There was in evidence a document dated 17 May 2002, identified by Mr Shaw as what I have called the second Form. It identified the traineeship as meat processing. Its Part A was headed “Important Instructions and Notes”; its Part B was headed “Training Contract Application Form”; its Part C was headed “Training Contract Obligation and Declaration”; and there were two other Parts which can be passed over. The content of Parts A, B and C were appropriate to the headings, and within Part C there was reference to a training contract between the employer identified in Part B and the trainee. I will go to the content of the second Form a little later in these reasons. For the present, it is sufficient to note that in the “Employer Details” in Part B the “Legal name of employer” was given as “Yolarno Pty Ltd”, with its ABN number and a “Trading Name” given as “Bindaree Beef”.

17 It was common ground that on 15 February 2002 Mr Shaw became employed by Bindaree, and remained employed by it at least until the occasion of the signature of the second Form. It was also common ground that on that occasion a training contract came into being. On Mr Shaw’s case, by virtue of the training contract he then became employed by Yolarno, and was employed by Yolarno as at 11 July 2002. Hence the issue as to employer.

The Apprenticeship and Training Act 2001

18 Before going further, there should be some description of the regulation of traineeships by the Apprenticeship and Traineeship Act 2001 (“the Act”). It also regulated apprenticeships, but in summarising provisions I will omit reference to apprenticeships.

19 The Act provided for appointment of a Commissioner for Vocational Training (s 56). The Commissioner could designate vocations as recognised traineeship vocations in connection with the establishment of traineeships under the Act (s 5), and could make vocational training orders specifying various matters in relation to the required training for the vocations (s 6).

20 Section 7 provided -

“ 7 Applications to establish apprenticeships and traineeships

(a) an apprenticeship in a recognised trade vocation, or

Maximum penalty: 20 penalty units.

(i) the proposed training contract, as executed by the prospective employer and prospective apprentice or trainee, and

(b) …

(c) must indicate the date on which the prospective apprentice or trainee began to work, or will begin to work, for the employer as an apprentice or trainee, and

(d) …

(e) in the case of an application by an employer who proposes to place the apprentice or trainee with a host employer from the commencement of the apprenticeship or traineeship, must indicate the name and address of the host employer with whom the apprentice or trainee is initially to be placed, and

21 The application for establishment of a traineeship had to be approved or dismissed by the Commissioner, or on referral by the Commissioner by a Tribunal established under the Act (ss 8, 9). It could be the subject of a vocational training direction (s 10). Section 11 provided for withdrawal from a traineeship.

22 Section 12, on which Mr Shaw particularly relied in the appeal, provided -

“ 12 Training contracts are binding

(1) A training contract has effect as if it were a deed duly executed by the employer and the apprentice or trainee.

(a) …

(i) from the time the employer is notified that the establishment of the traineeship has been approved, or

whichever is the later, until the end of the term of the traineeship.

23 In line with these provisions, the definitions in the Act included -

“ traineeship contract means a training contract under which a traineeship is established.”

“

training contract

24 Many other provisions of the Act dealt with what had to be or could be done by “an employer”, “the employer”, “the employer of an apprentice or trainee”, and similar phrases, or by the trainee, and otherwise referred to employer and trainee.

25 In the definitions -

“ employer , in relation to an apprentice or trainee, means:

(a) in the case of an apprentice or trainee who is party to an apprenticeship or traineeship contract, the person who is, under that contract, the employer of the apprentice or trainee, or

26 The reciprocal “trainee” was defined -

trainee

27 Section 7(3)(e) above referred to a host employer. That was defined to mean “a person or body with whom an apprentice or trainee is placed for training under a host employment arrangement”, and “host employment arrangement” was defined -

host employment arrangement

28 Section 14(1) of the Act provided -

“(1) An employer that places an apprentice or trainee with a host employer under a host employment arrangement remains liable to fulfil the obligations imposed on the employer by this Act, but is taken to have fulfilled those obligations if they have been fulfilled by the host employer.”

More about the training contract

29 Yolarno was registered as a training organisation, it seems under the Vocational Education and Training Accreditation Act 1990 (see now the Vocational Education and Training Act 2005), to provide training in meat processing. A registered training organisation could provide training to a person employed by an employer as a trainee under a traineeship contract. Although not expressly excluding that a trainee under a traineeship contract might be employed by the registered training organisation, the Act treated the employer and the registered training organisation as different entities: see ss 9(3)(ii); 13(1)(b); 14(2)(b); 15(1)(c); 18; 28(2)(i).

30 Ms Trevithick was employed by Yolarno as group training manager, her duties including completion of training contracts for trainees. She gave evidence that when she took up that position she copied her predecessor’s practice of writing in Yolarno Pty Ltd trading as Bindaree Beef in the section identifying the employer in training contracts, and had done so approximately 300 times regardless of the company in fact employing the trainee. She thought that her completion of the second Form was correct “because the Company was generally known and operating as Bindaree Beef Pty Ltd”; perhaps inconsistently, she also said that in completing the second Form she “incorrectly stated the employer as Yolarno Pty Ltd trading as Bindaree Beef”, she simply did as her predecessor had done, and “[t]he employer should have been shown as Bindaree Beef Pty Ltd”. She was aware that Mr Shaw was employed by Bindaree, because he was working in the load-out section, and had he been employed by Yolarno he would not have been working there and would not have been eligible for the traineeship. She was not cross-examined.

31 For his part, in an affidavit Mr Shaw said of the early May 2002 approach that he did not know whether the management person represented Bindaree or Yolarno and “had no knowledge of those matters at that time”. He also said, more generally and in the present tense as at the date of the affidavit in February 2006, “I have no knowledge of the corporate structures or identities of any companies that are involved in the abattoir”, and “I merely know that the abattoir trades as Bindaree Beef”.

32 The lack of knowledge as at February 2006 is unlikely to be correct, but from his cross-examination it is evident that in 2002 Mr Shaw did not give thought to the particular corporate entity employing him.

33 Mr Shaw said of becoming employed in February 2002, “I was just applying for a job”, and in answer to the judge -

34 Mr Shaw said as to the May 2002 events that he was just told to sign the second Form. He gave the evidence -

Q. And sorry sir, I don’t mean to be pedantic but I’d ask that you think about this question and answer it rather than not answer it. At the time you signed the training application, you had no expectation that your employer would be different?

A. Well I was told I was going on a trainee system so if that’s different, you know, like I didn’t sit down and ask what’s what and that it wasn’t ever explained to me. I said I was asked to sign the form. I read through it. It was during work, it wasn’t after work or anything like that. I wasn’t, I wasn’t given the chance to sit down and do it. Come here, sign this and get back to work.

…

35 When asked about signature of the second Form by Ms Trevithick on behalf of Yolarno, Mr Shaw said that he “would say I would have known” of it, but that he “did not take it into account” at the time.

36 As I have indicated, after the second Form was signed Mr Shaw continued working in the load-out section until he suffered his injury on 11 July 2002. However, he continued to be paid by Bindaree until the time he was injured. His gross pay as recorded in the payroll history in evidence varied, but it was not suggested (by questions to Ms Trevithick or to Mr Michael Bayes, the Human Resources Manager, or in submissions) that 17 May 2002 brought a change in the amount he was paid by reason of the traineeship contract. On 10 July 2002 Mr Shaw signed an authority to “Bindaree Beef” to deduct from his wages weekly payments to the AMIEU.

37 The training contract was sent to a government department, which on 31 May 2002 wrote to “Yolarno Pty Ltd Bindaree Beef” approving its application to establish a traineeship for Mr Shaw. The letter noted Yolarno as the registered training organisation, but also implicitly took it as the employer. This seems to have been accepted in the proceedings as approval of establishment of the traineeship as required under the Act, with the training contract becoming a traineeship contract. In internal workings and subsequent correspondence the department continued to take Yolarno as the employer. All this plainly enough rested on Yolarno’s name as the name of the employer in the second Form.

38 As described in evidence by an officer of the department, a registered training organisation can receive payment from the State government in respect of its provision of training, and an employer can receive from the Commonwealth government an “employer incentive”; no doubt to encourage traineeships. On 4 October 2002 the department paid $13,400 to Yolarno, which sum included either $1,000 or $1500 with respect to Mr Shaw. No application was made, by Yolarno or Bindaree, for an employer incentive with respect to Mr Shaw.

The content of the training contract

39 In Part B the section for details of the trainee was completed with the name, address and other particulars of Mr Shaw. As I have indicated, question 29 in the section for “Employer Details” was completed “Yolarno Pty Ltd” in the box for “Legal name of employer”, with the ABN number of Yolarno, and “Bindaree Beef” in the box for “Trading Name”. The box for “What is the industry or principal activity of the business?” was completed “meat processing”.

40 In the section for “Employment and Training Details” the workplace where the trainee would be employed was completed “Bindaree Beef” with the address of the abattoir. Ms Trevithick was “identified as the “contact person for this workplace”. A note within this section said that for trainees employed through a Group Training arrangement (which this was not) the information “should be the name and address of the initial host employer”, but the form did not more explicitly or otherwise provide for, or give details of, proposed placement of Mr Shaw with a host employer.

41 In the same section the question whether prior to commencing the traineeship the trainee had “worked for, or been hosted by/to the employer/host employer” was answered “yes”, with dates inserted to indicate a period of “previous casual employment/hosting” from 18 February 2002 to 16 May 2002. The question whether the trainee was an “existing worker” was answered “no”. The notes in Part A drew attention to an existing worker being a person who had been employed by “the applicant employer” continuously “for more than 3 months full-time 12 months casual or part time or a combination of both” immediately prior to the commencement of the training contract. The notes explained that State and Commonwealth incentives might not apply to existing worker arrangements.

42 Also in the same section, the question “Name of Registered Trading Organisation (RTO)” was completed “Yolarno Pty Ltd” with a telephone number and Ms Trevithick as the “Contact Officer”.

43 In Part C Ms Trevithick signed in the Training Contract Declaration “on behalf the Employer identified in Part B Question 29 of this Training Contract, agreeing to be bound by the obligations as set out. Her signature also went to the following words, “I confirm that the information provided is true and correct to the best of my knowledge and belief”. Mr Shaw signed in agreement “to be bound by the obligations as set out in this Training Contract”.

44 The first of the Training Contract Obligations in Part C was that the employer “must employ and train” the trainee “as agreed in the Training Plan”. The Training Contract Declaration included that a Training Plan would be negotiated and signed with the chosen registered training organisation. Two training plans were in evidence, one dated 17 May 2002 and signed by Ms Trevithick and Mr Shaw and the other undated and unsigned. According to Ms Trevithick, both went with the second Form. Both gave Yolarno as the registered training organisation. The former gave “Yolarno” as “Legal Name of Employer” and “Bindaree Beef” as “Trading name of employer”. The latter relevantly stated only “Employer: Bindaree Beef”.

Ground 1: Reasons

45 The hearing of the separate questions began with openings by counsel for Mr Shaw and Bindaree. They were not fully transcribed, but were plainly extensive and exposed the issue as to employer. The judge was provided with the affidavits and in part taken through them.

46 On the next morning, after dealing with a further affidavit, there was very considerable discussion of matters bearing on deciding the issue as to employer. Oral evidence was taken from Mr Shaw. The judge then expressed to counsel his “present view of the matter”, explaining at some length why he thought, subject to hearing further from counsel for Mr Shaw, that Bindaree was the employer.

47 After the luncheon adjournment the judge heard further submissions, from counsel for Mr Shaw with some contribution from counsel for Bindaree. His Honour then explained why he had not been persuaded -

“ … from the view which I had foreshadowed and for which I do not propose to now give further reasons, and that is that the document on which the Plaintiff has primarily relied was the product of the persistent error on the part of an employee of the Defendant and its associated companies, and that it did not in any way reflect the reality, which was that Bindaree Beef was at all times the employer of the Plaintiff for all purposes, and I underline that because I understand as was very clearly explained by Mr Egan in his submissions earlier, that the traineeship scheme was in a sense hived off from the general provisions of the Workers Compensation Act and that it consciously created an artificial arrangement as far as insurance was concerned. But that doesn’t remove the need to identify the employer and to the extent that a different impression was conveyed in the traineeship application document it was a result of an error and it was a fact, if I can use that term in a loose sense, which was never understood to exist by any of the parties involved. I therefore – I simply confirm the answers to questions (1) and (2) of the three questions which I was required to answer.”

48 It is unnecessary to decide ground 1, because this Court was in a position to and was being asked to decide the issue as to employer. No one wanted a new trial.

49 It should be said, however, that even without the customary formal judgment discharge of the judicial duty to provide reasons can in appropriate circumstances be found in what has been said in the course of submissions, or as in the present case by adherence to a preliminary view (but one open to further submissions) explained in or evident from what has been said by the judge. In my opinion, had it been necessary to decide ground 1 Mr Shaw’s task of showing deficiency in reasons was very difficult, since there could readily enough be seen in the judge’s explanation of his “present view of the matter”, and later explanation of why he had not been persuaded from it, the reasons for his decision. They were encapsulated in the passage set out above, which was to be understood together with what had earlier been said; whether or not the reasons brought a correct decision is, of course, a different matter. Contrary to a suggestion in Mr Shaw’s oral submissions, the course taken by the judge did not depart from the procedural necessities discussed in Palmer v Clarke (1989) 19 NSWLR 158.

Ground 4: Regard to the Act

Ground 5: Relief against mistake

50 There was a training contract. The question was whether, although Yolarno was given as the employer in the second Form, Bindaree remained Mr Shaw’s employer under the training contract and subsequent traineeship contract. These grounds of appeal were part of answering the question.

51 The issue is not as to employer in the abstract, according to common law notions (save so far as taken up in the legislation) or for the purposes of the Act. It is as to employer for the purposes of the WIM Act and the WC Act, so that if Bindaree was the employer the impediments under those Acts to recovery of damages stood in Mr Shaw’s path.

52 In the WIM Act the key concept was “worker”. As at July 2002 “worker” was relevantly defined to mean “a person who has entered into or works under a contract of service or a training contract with an employer” (s 4(1) and, for example, the steps were required of Mr Shaw before bringing proceedings through the definition of “work injury damages” as damages “recoverable from a worker’s employer” (s 250(1)). The definition of “employer” was inclusory and not of present assistance; in the definition of “work injury damages” reference to a worker’s employer included a person vicariously liable for the acts of the employer (s 250(2)(a)).

53 In the WC Act the modified common law damages regime applied in respect of “an injury to a worker” caused by the negligence or other tort “of the worker’s employer” (s 151E). By s 3(1AA) words and expressions had the same meanings as in the WIM Act. Thus the earlier question was better framed as whether, although Yolarno was given as the employer in the second Form, Bindaree rather than Yolarno was as at 11 July 2002 the employer with whom Mr Shaw had entered into or worked under the training contract.

54 In Pitcher v Langford (1991) 23 NSWLR 142 the Pitchers employed shearers, whose labour they provided to Langford for a contract price. They had to pay a greatly increased premium for workers compensation insurance. They said to Langford that he could pay the additional premium as part of the contract price, or could assume the role of employer and have the shearers covered by his own workers compensation insurance for which the premium was less. Langford chose the latter course, and in due course Langford and the shearers signed the standard form of employment contract prescribed by the award. Langford also, for example, added the shearers to his insurance, paid them directly, and described at least one of them as his employee.

55 In a dispute in reality between the two insurers, it was held in the Compensation Court that the Pitchers remained the shearers’ employer. The judge found, amongst other things, that Langford signed the employment contracts “as a mere formality”. In an appeal limited to error in point of law, this Court (Kirby P and Handley JA, Priestley JA dissenting) declined to intervene.

56 Kirby P’s reasons included at 145-7 that there were features which suggested the continuance of the pre-existing relationship between the shearers and the Pitchers, so that there was evidence on which the judge could have come to his conclusion that “the reality of the situation” was that they remained the employer; it was a question of fact, and so there was no error in point of law.

57 Priestley JA said at 154-5 -

Esanda Ltd v Burgess

R v Foster; Ex parte Commonwealth Life (Amalgamated Assurances) Ltd

Ex parte Robert John Pty Ltd; Re Fostars Shoes Pty Ltd

58 Handley JA said at 161-2 -

“In my opinion the trial judge did not err in holding that the courts are entitled, independently of any statutory power in that behalf, to consider the reality of purported contractual arrangements. No case was sought to be made at the trial that the written agreement between the owner and the worker was a sham: compare Snook v London and West Riding Investments Ltd [1967] 2 QB 786 at 802 per Diplock LJ and Cam & Sons Pty Ltd v Sargent (1940) 14 ALJ 162. Furthermore no such case was sought to be made in this Court either. But independently of the sham principle the courts can consider what the parties to a contract have done, in order to see whether it has been ignored or abandoned.

R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd

This decision was applied in Ex parte Robert John Pty Ltd; Re Fostars Shoes Pty Ltd [1963] SR (NSW) 260; 80 WN (NSW) 408, in determining whether a deed of “licence” between the parties prevented their relationship being that of landlord and tenant. Sugerman J said, quoting from earlier authority (at 269; 414): “… It is not necessary to go so far as to find the document a sham. It is simply a matter of finding the true relationship of the parties.

In my opinion this is what the trial judge did in the present case. He held (at 5) that ‘no actual difference could be discerned between how the operation was carried out on that occasion’ from how it had been carried out on earlier occasions when the relationship of employer and employee undoubtedly existed between the contractors and the shearers. He said (at 9) ‘that nothing really changed’ and (at 10) that ‘it was business as usual’. To these findings must be added the finding that the signing of the written contract by the owner (at 9) was ‘a mere formality’.

Almost all the matters relied upon by Mr Bruce QC for the appellants namely declaration of the shearers' wages by the owner, payment of insurance premiums thereon, payment of wages by the owner to the shearers, payment of the tax thereon and the signing of the written agreements are paper matters. Such paper matters can be no more effective than signed agreements in preventing a court from discerning the real nature of the relationship between the parties. For example the payments by cheque to the shearers can be viewed as payments made at the direction and with the authority of the contractors. It is inherently likely that it was Mr Pitcher or his foreman who told the owner the persons to whom the cheques should be made payable and the amounts. The payments to the shearers by the contractors after the award variation can then be seen as reflecting the real relationships between the parties.

59 The result in Pitcher v Langford turned on its own facts, and on the need for error in point of law. There is no doubt, however, that without going so far as to find a sham the “reality of purported contractual arrangements” (per Handley JA) can be considered, and the case illustrates that it can extend to the identity of a contracting party and that it can be found that a purported contracting party was not in reality party to the contract even where a written contract gives it as the party.

60 For the following reasons, in my opinion Bindaree remained the employer under the training contract, notwithstanding Yolarno’s name and ABN number in the section for “Employer Details” and Ms Trevithick’s signature in the Training Contract Declaration earlier described.

(a) Mr Shaw’s February 2002 employment by Bindaree included that as part of his employment he may be required to enter into traineeship. That did not preclude traineeship under employment with another entity, but an ensuing traineeship, “as part of [Mr Shaw’s] employment” would most naturally be within continued employment by Bindaree.

(b) When Mr Shaw was approached to go onto a traineeship, so far as appears (and of course save for completion of the second Form referring to Yolarno) nothing was said about a different employer for the traineeship. To the contrary, any references to putting his position into a trainee’s position and to whether if he did not go on the traineeship scheme he would not “get put on permanent” suggested that what was to occur was within his existing employment by Bindaree.

(c) Although Yolarno was given as the employer in the second Form, this was rather qualified by giving its trading name “Bindaree Beef”. There was no evidence of the registered holder of the trading name, but letterheads of Bindaree in evidence bore a logo prominently incorpororating “Bindaree Beef” and the words as a trading name naturally referred to the trading company, Bindaree, rather than the administration and stock buying company, Yolarno. The training plan dated 17 May 2002 was similarly qualified, and the other training plan stated “Employer: Bindaree Beef”. Both were said to go with the second Form.

(d) The second Form identified Yolarno as the registered training organisation. Perhaps a registered training organisation for the purposes of a training contract could also be the employer under the training contract, but where the employee was already employed by Bindaree that capacity in the second Form suggested that another entity – “Bindaree Beef” was the true employer.

(e) In that connection, this was not a case of a new employee without previous connection with Bindaree or Yolarno. Mr Shaw was an existing employee of Bindaree. If Bindaree remained the employer, he was not an “existing worker” and there was no reason to change his employer in order that incentives could be obtained. Yolarno becoming employer under the training contract meant termination of the employment by Bindaree, short of the six months to which the written conditions of employment referred (and three was no suggestion of termination because Mr Shaw was unsatisfactory on trial). The May discussions were of changing from labourer to traineeship, not of changing employer.

Western Sydney Regional Organisation of Councils Group Apprentices v Statrona Pty Ltd

61 Whether a contract has been entered into is determined on “an objective assessment of the state of affairs between the parties”: Ermogenous v Greek Orthodox Community of SA Inc (2001) 209 CLR 95 at [25]; see also Toll (FGCT) Pty Ltd v Alphaparm Pty Ltd (2004) 219 CLR 165 at [40]; Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548-9; Rydelar Pty Ltd v Euphoric Pty Ltd [2001] NSWCA 65 at [262]. In Ermogenous v Greek Orthodox Community of SA Inc Gaudron, McHugh, Hayne and Callinan JJ continued at [25], referring to the intention to create legal relations -

“Although the word "intention" is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.”

62 This applies also to determining the entity which entered into the contract. Neither Ms Trevithick’s nor Mr Shaw’s subjective intention can be taken into account. It is not inconsistent with that embargo, however, to take into account whether completion of the second Form giving Yolarno’s name as the employer was a matter of significance in the state of affairs between the parties, and how it came about (as in Pitcher v Langford the signing of the employment contracts was a mere formality). It came about because Ms Trevithick followed her predecessor’s practice. Mr Shaw did not give thought to the particular corporate entity. Both lacked clear consciousness that Yolarno, as distinct from Bindaree, was to be the employer under the training contract, and so far as the evidence showed that was not mentioned between them beyond the name being in the second Form.

63 The completion of the second Form in relation to host employment and existing worker is neutral. If Bindaree was the employer, it was correct to say that Mr Shaw had worked for it from 18 February 2002 to 16 March 2002, and if Bindaree was the host employer, it was also correct to answer yes. Whichever of Bindaree or Yolarno was the employer, it was correct to answer that Mr Shaw was not an “existing worker”. That Bindaree was to be a host employer, although not excluded, was certainly not made clear.

64 In my view, the preferable finding is that, although Yolarno was given as the employer in the second Form, Bindaree continued as Mr Shaw’s employer and was the employer under the training contract; it rather than Yolarno was as at 11 July 2002 the employer with whom Mr Shaw had entered into or worked under the training contract.

65 I go then to the grounds of appeal.

66 As to ground 4, Mr Shaw submitted that the Act established particular kinds of contract, a training contract and a traineeship contract, distinct from a contract of employment because directed not to the employee working for the benefit of the employer but to the employer training the employee and the employee receiving the training as a teaching/learning process; and that, focussing on those contracts, the definition of “employer” in the Act meant that one did not go beyond Yolarno as employer in the second Form because under the training contract it was the employer of the trainee. It was submitted that this was emphasised by s 12(1) of the Act, giving the training contract the effect of a deed duly executed by the employer and the trainee - according to the submission the employer necessarily being Yolarno, because identified as such in the second Form.

67 I do not think this is correct. Compliance with the Act would ordinarily mean that a training contract and a traineeship contract were in writing, but that does not exclude a finding that in reality the employer under the contract was an entity other than that stated in the writing. It is necessary first to identify the contract, including the person who under the contract is the employer of the trainee. The definition of “employer” takes its content from that identification, not from a name written in the application to which s 7 of the Act refers. I recognise that this means that on occasions the Commissioner or Tribunal may approve or dismiss an application for establishment of a traineeship on a false basis, but I do not think that negates regard to the trainee’s true employment relationship.

68 As to ground 5, Mr Shaw submitted that the judge had purported to “rectify the instrument embodying the training contract” to correct clerical error said to have been made by Ms Trevithick, and that there was neither a proper basis for an order for rectification nor sufficient equitable jurisdiction in the District Court (see District Court Act 1973, s 134). It may be observed that, even if there were jurisdiction, Yolarno was not a party to the proceedings. It is not necessary to explain the development of these submissions, since in my opinion the judge did not purport to rectify an instrument and there is no question of rectification. Rather, in considering the reality of the purported contractual arrangement it is relevant to ask how it came about that Yolarno was given as the employer in the second Form. The answer may not adequately be described as mistake, certainly not as clerical error; it is rather absence of clear consciousness that Yolarno, as distinct from Bindaree, was to be the employer under the training contract. In the manner I have described, that contributes to the preferable finding.

Proposed Ground 6: Estoppel

69 Mr Shaw submitted that there was estoppel by deed, because s 12 of the Act gave the training contract the effect of a deed between the employer and the trainee; estoppel by convention, because the provision of training was the state of fact adopted as the basis for the transaction for which Yolarno was the employer; and an estoppel “based on the Court’s refusal to permit a party to ‘approbate and reprobate’.”

70 Estoppel by deed assumes that which is to be established, since the prior question is whether, although Yolarno was given as the employer Bindaree remained as employer. However, if Yolarno was correctly the party to the deemed deed, Bindaree as a non-party was not estopped.

71 Estoppel by convention was not raised before the judge. It rests upon facts going to whether the relations between the parties (relevantly, Bindaree and Mr Shaw) were conducted on an agreed or assumed state of facts (eg Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986)160 CLR 226 at 244). On the principles found in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, Coulton v Holcombe (1986) 162 CLR 1 and Water Board v Moustakas (1988) 180 CLR 491, Mr Shaw should not be permitted to raise it on appeal. In any event, from the evidence given by Mr Shaw earlier set out it would have no hope of success. He did not act on the basis (factual or otherwise) that Yolarno was the employer.

72 Approbation and reprobation was also not raised before the judge. It was touched on but lightly in the appeal, and the submissions did not go into whether inability to approbate and reprobate goes beyond election between estates or rights (see the explanation in Lissenden v CAV Bosch Ltd (1940) AC 412 at 417 et seq), or whether so far as it does it is properly regarded as as governed by principles of estoppel (see VACC Insurance Ltd v BP Australia Ltd (1999) 47 NSWLR 716 at 725).

73 A number of matters were said to constitute approbation -

· that Yolarno had been paid the training allowance on 4 October 2002;

· that many other training contracts had been completed nominating Yolarno as the employer;

· that the employer of a trainee received insurance cover through the Treasury Managed Fund in respect of trainees;

· that Bindaree and Yolarno had common directors and shareholders.

74 That all these were relevantly approbation is far from clear, and if the first at least was approbation it was by Yolarno not Bindaree. It is not necessary to go further. Any approbation by Bindaree, in some manner through the agency of Yolarno or because of the sibling relationship, also rests upon facts, and Mr Shaw should not be permitted to raise this estoppel on appeal.

The result

75 I propose the orders -

(1) Refuse leave to amend the notice of appeal to add the proposed ground 6.

76 BASTEN JA: The sole issue in this case is whether the Respondent was the employer of the Appellant at the time of his accident at work on 11 July 2002, for the purpose of Part 5 of the Workers Compensation Act 1987 (NSW) (“the 1987 Act”).

77 It is not in dispute that the Appellant commenced employment with the Respondent on 18 February 2002. Nor is it in dispute that he signed a “training contract” under the Apprenticeship and Trainee Act 2001 (NSW) (“the 2001 Act”) on 17 May 2002, in which a related company, Yolarno Pty Ltd, and not the Respondent, was identified as his employer.

78 Although the Appellant placed a different emphasis on the issues raised, it is convenient, having noted the evidence presented and the factual circumstances relied on, to address the issues in the following sequence:

(1) According to general law principles which entity was the employer of the Appellant under the training contract?

(2) Apart from any effect of the 2001 Act, was the Respondent the “worker’s employer” for the purposes of Part 5 of the 1987 Act?

(3) Did the 2001 Act affect the answers givens to (1) or (2)?

Factual background

79 It is not in dispute that the February contract of employment was with the Respondent. However, there was no formal documentation to that effect. What the Appellant signed at that time was headed “Bindaree Beef Pty Ltd – Conditions of Employment”. Apart from the first clause, which merely stated, “observation of Safe Working Practices is a condition of employment”, each of the other clauses 2-14 were formulated in terms of understandings, agreements or acknowledgments as to certain matters, each of which was stated in the first person and should be understood to be a declaration by the “applicant”. Thus, clause 2 commenced, “I understand that if employed …”. Clause 13 commenced:

“I agree that my employment with the Company is conditional to the above declaration.”

80 Although the conditions of employment document referred to employment, if it occurred, being on a six month trial basis, the commencement of the traineeship occurred a few days short of three months. The Appellant gave evidence as to the circumstances in which he entered into the traineeship in an affidavit of 8 February 2006, in the following terms:

“6. I am aware that a number of companies trade out of the offices at the abattoir. After the three-month trial, in early May 2002, I was approached by a person from management at the abattoir. I don’t know whether the person was representing Bindaree Beef Pty Limited or Yolarno Pty Limited. I had no knowledge of those matters at that time. In any event, a conversation occurred to the following effect:

‘How do you feel about going on to a traineeship – would you like to do that?’

‘Not really’

‘Well we are putting your position into a trainee’s position and that is all that will be available.’

7. As I was keen to keep working as I enjoyed the job, I initially agreed to go on to the traineeship as requested. When I indicated that I agreed, I was asked to accompany the person to the office at the abattoir and was shown a form entitled ‘Training Contract Application Form’. This form was completed and I believe I signed it then. … “

81 There is no dispute that the Appellant signed the training contract application form and commenced a traineeship. That form identified the “legal name of employer” as Yolarno Pty Ltd. The employer’s trading name was noted as “Bindaree Beef” and the place of his employment was noted as Bindaree Beef, Warialda Road, Inverell, NSW 2360, being the address of the abattoir. The section headed “employment and training details” also stated that there were 600 employees of “the firm” at the workplace, of whom 300 were apprentices/trainees and 300 were available to supervise or train the apprentice/trainee. On the form, which was filled in by Ms Sandra Trevithick, an officer of Yolarno, the prior employment, from 18 February to 16 May 2002 was noted, as a period during which the Appellant had “worked for, or been hosted by/to, the employer/host employer”. It was said that for that period he had worked 20 hours per week. In his affidavit, the Appellant asserted that he had worked 40 hours per week, but otherwise made no complaint of the accuracy of the contents of the trainee contract application form. The box at question 42 of the form was ticked to indicate that the Appellant was not “an existing worker”. The notes accompanying the form stated in relation to that question:

Question 42 – Existing Worker

An existing worker is defined as a person who has been employed by the applicant employer continuously for more than 3 months full-time or 12 months casual or part-time or a combination of both, immediately prior to commencement of the Training Contract.

State/Territory/Commonwealth incentives may not apply to existing worker arrangements. You should contact your nominated New Apprenticeships Centre for advice in relation to eligibility for any incentives.”

82 Attached to the training contract application form, in Part C, was a declaration of obligations, which was headed:

“The following Obligations and Declaration relate to the legally binding nature of the Apprenticeship/Traineeship Training Contract between the Apprentice/Trainee and the Employer identified in Part B, Questions 7 and 29 for the Apprenticeship/Traineeship as detailed in Part B, Questions 1-6.”

83 It was common ground that Yolarno Pty Ltd was a “registered training organisation”, under the 2001 Act, and the Respondent was not. That did not mean that the Respondent could not have entered into a training contract with the Appellant, nor that, if the trainee were to work at the Respondent’s workplace, there might not have been an appropriate arrangement between Yolarno and the Respondent.

84 There was no challenge as to the identity of the Appellant or his signature on the training contract. Nor was there any challenge to the identity of the company known as Yolarno Pty Ltd, nor that its name appeared as the employer in the training contract, nor that Ms Trevithick, who signed the contract on its behalf and who was also the officer who assisted in developing the training plan on its behalf had authority to undertake those steps for Yolarno, her employer. The sole question was whether or not the employer was, from 17 May 2002, the company named in the training contract. There was no objective circumstance, known to the Appellant and Yolarno, which would make that conclusion commercially unlikely. The purpose of the training contract was not in doubt, nor was the identity of his employer a matter of concern to the Appellant. Although the contract documentation indicated that Yolarno traded as ”Bindaree Beef” there was no evidence to show that that was not the case, nor that it had any bearing on the identity of the employer. If Bindaree Beef was a registered business name, there was no evidence to which the Court was taken on the appeal which indicated who might be the owner of the business name, nor that its use was restricted, within the group of related companies which included both the Respondent and Yolarno Pty Ltd.

85 Indeed, the case for the Respondent was that there had been a simple “mistake” by the officer of Yolarno in putting its name as employer in the training contract. As the Respondent correctly noted, this was not a rectification case; not only did neither party seek rectification of the contract, but the District Court, in which the proceedings were brought, had no power to order rectification. Furthermore, Yolarno was not a party in the proceedings.

86 The Appellant gave evidence and was cross-examined as to his beliefs, understanding and related matters, both before, at the time of signing the contract and thereafter. As will be noted below, the relevance of much of this material is doubtful. Counsel for the Respondent sought to establish that, so far as the work undertaken at the abattoir was concerned, nothing changed from the period before the training contract was signed to that after it was executed. He was largely successful in that exercise, even in relation to the absence of any “training”: Tcpt, 28 July 2006, p 46R-V. He established that the identity of his employer was a matter of indifference to the Appellant. The following exchange took place (Tcpt, p 46) in relation to the effect of signing the training contract:

87 Shortly thereafter the following exchange took place (Tcpt, p 47):

88 Whether the trial judge took any of this material into account is unclear, although his own questions to the Appellant, seeking to establish whether he subjectively understood that the name of the employer on the training contract was not that of the Respondent, suggest he may have.

89 Evidence relied upon by the Respondent included an affidavit of its “Group Human Resources Manager” dated 20 December 2005 which stated:

“The name of the employer as shown on the training contract application form is incorrectly shown as Yolarno. The plaintiff’s employer at all times was Bindaree as shown on his PAYG payment summary … .”

90 Ms Sandra Trevithick also gave evidence by affidavit and was not cross-examined. She said that she was employed by Yolarno Pty Ltd as the “Group Training Manager for the Bindaree Beef Group of companies”. She further stated:

“2. My duties include filling out all training contracts for all new trainees of the group.

3. When I became the trainer I was shown by my predecessor, Brad Waun, how to complete the New Apprenticeship/Traineeship Training Contracts. This form contains 45 questions and question twenty nine relates to the employer details.

4. When I took over Mr Waun’s position I copied Mr Waun’s response to question 29 and wrote Yolarno Pty Ltd trading as Bindaree Beef for this question when filling out the training contracts.

91 There was a plethora of other material admitted into evidence, most of which involved documentation generated after the date the training contract was entered into.

Identification of parties to contract

92 In the case of a contract which has in all relevant respects been reduced to writing and signed by both parties, the construction of its written terms will be found in the understanding of the reasonable reader: see Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [42]-[47]. That does not mean that the exercise is to be undertaken entirely abstracted from the context in which the contract was executed. As stated in Toll(FGCT) Pty Ltd at [40]:

“The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.”

93 Matters extrinsic to the text, especially if they require attention to the knowledge of the parties, will tend to blur the dividing line between the subjective and objective theories of analysis discussed in Taylor v Johnson (1983) 151 CLR 422 at 429. However, the need to expand the scope of relevant evidence beyond the text of the signed contract will depend upon the nature of the issue raised and the relief sought. Thus the relevant material may vary depending upon whether one party raises a defence of non est factum, seeks rectification, seeks to introduce an implied term or raises a complaint of unconscientious conduct on the part of the other. None of these claims is raised in the present case and accordingly the extent to which it is useful to have reference to the contractual context need not be pursued.

94 That principle also applies in determining whether an intention to enter into a legally binding agreement is revealed: Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 at [25]. There is no reason not to apply the same approach to the identification of the parties: indeed, if there is a real issue in that regard, its resolution may be seen as a specific aspect of the question whether an intention to enter a legal relationship is revealed, that is whether Yolarno intended to contract with the Appellant.

95 In the manner in which the case was presented at the hearing of the appeal, primary reliance was placed upon the combined effect of the training contract and the 2001 Act. Nevertheless, the Appellant treated the employment contract apparently entered into on or about 15 February 2002 as a relevant element of the contractual context, which he accepted might be taken into account in considering the proper construction of the training contract, pursuant to the approach adopted in Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 350 (Mason J), and see Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [22].

96 However, in the present case, even a relevant subjective intention was missing. The evidence of Ms Trevithick demonstrated that she wrote on the training contract the name of the company she intended to be the party. The Appellant had no contrary intention. Nor was this a case where one party, to the knowledge of the other, laboured under a mistake as to the identity of the other: c.f. Ingram v Little [1961] 1 QB 31, where one party fraudulently impersonated a third party, with whom the other thought he was contracting: see generally Seddon & Ellinghaus, Cheshire and Fifoot’s Law of Contract (8th Aust ed, 2002) at [12.63].

97 The Respondent contended that the training contract identified Yolarno, but that was a “mistake”. The trial judge accepted that view. After referring to the training document and other documents to similar effect, including the training plan, his Honour noted (Tcpt, 28 July 2006, p 50):

“Taking that into account, this is, in my view, a case where there was a genuine, if nonetheless persistent error in the documentation of the group … .

… They [the group of companies of which the Respondent and Yolarno were members] have behaved in an entirely negligent manner and they have therefore created, inadvertently, an impression in documents such as this, which has been entirely misleading.”

98 There are a number of problems with this reasoning. First, it set at nought the written training contract. Because the Court had no power to rectify the documents does not mean that it can proceed on the basis that the document should be treated as saying something which it did not say. Secondly, rectification would not in any event have been available unless there was “a continuing common intention of the parties”, known to each other, to different effect: see Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65 at [281]. The evidence fell far short of establishing such an intention on the part of the Appellant. Thirdly, as Campbell JA explained in Ryledar, the real justification for looking at the subjective intention of parties to a contract is to prevent unconscientious behaviour on the part of one as against the other. Were it otherwise, the well-established principle by which the formation and terms of a contract are determined objectively, and not by reference to the subjective intention of the parties, would be undermined to such an extent that commercial certainty would be diminished: see Ryledar at [309] (Campbell JA, citing Story, Commentaries on Equity Jurisprudence as Administered in England and America (1886), pp 168-9).

99 The Respondent’s case was that Ms Trevithick entered the name Yolarno Pty Ltd in the space for the employer and signed the document, apparently on its behalf, but in fact on behalf of Bindaree Beef Pty Ltd. However, the document conveyed an unequivocal representation to a reasonable reader that the person who signed as trainee was entering into a contract with Yolarno Pty Ltd. Accordingly, that should be understood as the legal effect of the document; the Appellant’s subjective understanding was entirely beside the point. If he had sued Yolarno for breach of its obligations under the training contract, it is difficult to understand how Yolarno could have escaped legal liability on the basis that it was not a party to the contract. The Respondent in the present proceedings, not being Yolarno, can hardly be in a better position with respect to the legal relationship between Yolarno and the Appellant.

100 The evidence as to who was the employer involved a question of law and the answers given by the witnesses are of no weight. To the extent that they express their personal opinions, those are irrelevant. In any event, the evidence of Ms Trevithick demonstrates that she had authority to complete the training contract on behalf of Yolarno Pty Ltd and intended to fill the contract out precisely as she did. How one might categorise the nature of her “mistake” may be a matter for philosophical debate: it has no present legal consequence.

101 Part of the material upon which the trial judge appears to have relied for his conclusion that the “real” employer was the Respondent, was evidence that it paid the Appellant’s wages not only before, but also after 18 May 2002 and provided the Appellant with a group certificate at the end of the 2002 financial year. However, the basis upon which this material was thought to be relevant to determining the parties to the training contract entered into on 18 May 2002 is unclear. Such conduct may indicate a mistake on the part of the Respondent as to its relationship to the Appellant, but that would say little about the understanding of a reasonable person at the date of formation of the training contract. The subjective beliefs of a third party must be even less relevant than those of a contracting party. Nor was there any suggestion that there had been a novation of the training contract after it was executed by both parties.

102 Accordingly, by reference to general law principles with respect to the formation of contracts, the employer under the training contract was Yolarno Pty Ltd.

Identification of employer under 1987 Act

103 The next question is whether, assuming that Yolarno was the employer under the training contract, the Respondent was nevertheless the “worker’s employer” for the purposes of Part 5 of the 1987 Act, concerning common law damages claims. However, if it were the employer for that purpose, it must have been because Yolarno Pty Ltd had supplied the Appellant to the Respondent, so that the Appellant worked for the Respondent. That possibility requires consideration of the provisions of Schedule 1, cl 1 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the 1998 Act”) as to the date of the accident. Clause 1 of Schedule 1 then read:

1 Workers lent or on hire

If the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of service or apprenticeship, the latter is, for the purposes of this Act, taken to continue to be the employer of the worker while the worker is working for that other person.”

104 The next step, which is to connect that provision with Part 5 of the 1987 Act, is to be found in s 2A of the 1987 Act which reads as follows:

Workplace Injury Management and Workers Compensation Act 1998

(2) This Act is to be construed with, and as if it formed part of, the 1998 Act. Accordingly, a reference in this Act to this Act includes a reference to 1998 Act.

(3) In the event of an inconsistency between this Act and the 1998 Act, the 1998 Act prevails to the extent of the inconsistency.

3(1AA) In this Act, words and expressions have the same meanings as they have in the 1998 Act, unless this Act provides otherwise.”

105 It follows from s 2A(2) (first sentence) that where the 1998 Act provides a definition for the purposes of that Act, the definition must be understood to apply for the purposes of both Acts. It is significant in this context that the definition of “worker” in the 1987 Act was repealed when the 1998 Act took effect. Accordingly, cl 1 of Schedule 1 of the 1998 Act had the effect, in circumstances where it operated, that the provider of labour remained the employer. Importantly, that applied in the circumstances of an apprenticeship as well as an employment contract. It could operate to make the employer under the training contract in the present case the worker’s employer for the purposes of Part 5 of the 1987 Act.

106 The question whether it did apply depended on three requirements. The first was that Yolarno be a party to the training contract; the second was that the relationship between the Appellant and Yolarno be properly described as that of “apprenticeship” and, thirdly, the Appellant was “temporarily lent or let on hire” by Yolarno to the Respondent. For the reasons already given, the first condition was fulfilled, Yolarno being “the employer” under the training contract. In relation to the second matter, although question 6 on the application form stated that the type of relationship was a “traineeship”, it is clear from the notes to that section that the labels are designed for different regimes operating in different parts of Australia. The content of the agreement was consistent with the existence of an apprenticeship, as it would be understood under the general law. There is nothing in the 2001 Act which provides any significant point of distinction between an apprenticeship and traineeship. There remained the third requirement, namely that of letting or lending on hire temporarily. Because it was part of the Respondent’s case that the Appellant worked for it, if Yolarno were indeed the employer under the training contract, there must have been some form of arrangement between them whereby Yolarno supplied the Appellant’s services to the Respondent. Clause 1 requires no formalities or particular conditions to be applicable in order for that element to be satisfied. It is more probable than not that an arrangement of that kind existed, impliedly, if not expressly. The absence of such an express agreement was explained by the assumption apparently made by Yolarno and the Respondent as to the relevant relationship. The alternative conclusion is that the Appellant was simply undertaking work for Yolarno, in which case reliance on Schedule 1, cl 1 is unnecessary.

107 This conclusion as to the operation of Schedule 1, cl 1, is consistent with the conclusion reached by this Court in OP Industries Pty Ltd v MMI Workers Compensation (NSW) Ltd (1998) 17 NSWCCR 193. As the Appellant noted, the correctness of the majority’s reasoning (Fitzgerald AJA, Beazley JA agreeing) was the subject of a reservation as to its correctness in National Transport Insurance Ltd v Chalker [2005] NSWCA 62 at [75] (Mason P, Tobias JA and Grove J agreeing); further, in Kotevski v Esselte Australia Pty Ltd [2005] NSWCA 126 at [30] Tobias JA (Young CJ in Eq and Brownie AJA agreeing) expressed the view, obiter, that there was “substance” in a submission that OP Industries was wrongly decided and that the reasoning of Meagher JA in dissent was to be preferred.

108 It was not contended on this appeal that OP Industries should be reconsidered. Nor, with respect, do I see anything in the judgments in Kotevski or Chalker which would suggest that reconsideration is necessary. In Kotevski, at [28] the view of Meagher JA, in dissent in OP Industries, was identified in the following terms:

“He was of the view that the effect of the statutory deeming was limited ‘to the purposes of this Act’ and was intended to assist an injured worker to know which of several potential employers was liable to pay statutory compensation (not common law damages) under the Act. It could not, his Honour said (at 196 [9]):

‘be tortured into a provision depriving a worker of the exercise of his common law rights.’”

109 Resolving a choice between alternatives is not often described as a form of torture; this may have been a lapse into “Wilkes-like rhetoric”: see Carroll v Mijovich (1991) 25 NSWLR 441 at 455E (Meagher JA). Nor is it clear, except in particular circumstances, why the choice of one party rather than another involves a deprivation of rights. Indeed, rather the contrary: the party most directly responsible for the injury is likely to be that in control of the workplace and not the labour hire company. As a result, the labour buyer is likely to be the party responsible in damages and to be without the constraints imposed by Part 5 on damages recoverable by the injured party. If the reason given by Meagher JA is the basis for doubting the correctness of the decision in OP Industries, it may be seen, in truth, to support a contrary result. Furthermore, it provides no basis for reading down express and unambiguous words referring to “the purposes of this Act”, those purposes clearly being multiple and there being no reason to exclude one or more from the scope of the phrase.

110 Of course, a different result may follow from the use of the same phrase in a different context. Thus the provisions of ss 15, 16 and 17 of the 1987 Act, each of which adopts the phrase “for the purposes of this Act” may properly be understood to refer to the purposes of Part 2 of the Act, in which they are found, rather than the Act generally. However, there is no such justification for reading down a phrase of that kind when it appears in a general definition section which one would normally expect to apply, as its language states, to the whole of the Act and its multiple purposes. That approach is consistent with the principle that references to “this Act” are apt to identify the whole of the Act in the form in which it appears from time to time, including after amendment subsequent to the provision in which the phrase is found: see Ocean Road Motel Pty Ltd v Pacific Acceptance Corporation Ltd (1963) 109 CLR 276 at 280 (Taylor J).

111 As the Appellant also noted, OP Industries was referred to, with apparent approval, by Kirby J in Klein v Minister for Education [2007] HCA 2 at [45], dealing with an appeal with respect to the Workers’ Compensation and Rehabilitation Act 1981 (WA). The majority of the Court did not address the issue, but, given the particular legislative and other circumstances, revoked the grant of special leave. Gleeson CJ would have, like Kirby J, dismissed the appeal. The difficulty which arose in that case was related to an earlier decision of the Full Court of the Supreme Court of Western Australian in Hewitt v Benale Pty Ltd (2002) 27 WAR 91, which had held that a provision of the Act deeming both the principal for whom work was undertaken and the contractor by whom the worker was employed to be the worker’s employers “for the purposes of this Act” applied not only to the availability of compensation, pursuant to Part X, concerning insurance, but also for the purposes of Part IV, which imposed constraints on awards of common law damages. Special leave had been refused in relation to a related decision and the WA Parliament had legislated on the basis that Hewitt was correct.

112 On one view, OP Industries was a clearer case than Hewitt, because the definition or deeming provision relied on in OP Industries was in a general Part of the Act. Nevertheless, it may be noted that OP Industries was referred to with apparent approval by Scott J in Hewitt at [45]. In addition, the effect of the Western Australian provision was to limit the damages recoverable from either principal or contractor: for that reason, there was a clearer basis for arguing that the deeming provision should be strictly construed so as not to deprive a worker of rights otherwise than as expressly required: see Bird v Commonwealth (1988) 165 CLR 1 at 9. Nevertheless, the WA Full Court in effect found the language “intractable”, to use an expression adopted by McHugh J in the High Court, rejecting an application for special leave to appeal.

113 It may be noted that the equivalent of Schedule 1, cl 1 of the 1998 Act was to be found in the definition of “employer” in s 5 of the WA Act: the general operation of that deeming provision appears to have been accepted as beyond question.

114 It follows that if Schedule 1, cl 1 applied, according to its terms, in the present case, the worker’s employer for the purposes of Part 5 of the 1987 Act was Yolarno. The Respondent was not the worker’s employer for the purposes of Part 5 of the 1987 Act. Assuming that Yolarno was the employer under the training contract, the same conclusion would follow even if Schedule 1, cl 1, did not apply because either of the second or third conditions referred to above was not satisfied.

Effect of 2001 Act

115 The next question is to enquire whether some further assistance may be found by reference to the 2001 Act. The 2001 Act is described, in its long title, as:

“An Act to provide for the regulation of apprenticeships and traineeships … .”

116 The Respondent did not dispute that the training contract was a “contract entered into for the purpose of establishing … traineeship”, as defined in the 2001 Act and that the “traineeship” was established under Part 2, Div 2 of the Act. Section 12 of the 2001 Act provides that a training contract has effect “as if it were a deed duly executed by the employer and the … trainee”: s 12(1). The term “employer” is defined in the Dictionary of the Act as follows:

Employer

(a) in the case of an apprentice or trainee who is party to an apprenticeship or traineeship contract, the person who is, under that contract, the employer of the apprentice or trainee, or

(b) in the case of an apprentice or trainee in respect of whom no such contract is in force, the person by whom the apprentice or trainee is for the time being actually employed.”

117 In a sense, reliance upon the statutory scheme is circular and possibly context specific. In relation to the issue of circularity, it might be said that the 2001 Act does nothing to identify the employer under the training contract. Although it is clear that, as a matter of practice, a standard form is used, the Act does not in terms require a particular form, nor does it seek to give specific effect to the entry in the form of a named employer. In other words, reliance on the statute merely takes one back to the question addressed above by reference to the general law as to the identity of the employer. On the other hand, the statute might provide an answer to the possibility that the training contract identified an employee and employer for its purposes, without affecting any pre-existing employment relationship which involved a different employer. The provisions relied upon may thus have forestalled an argument which was not expressly raised in the present proceedings, namely that the employment contract, entered into in February 2002, remained on foot and defined the relevant relationship, despite the existence of a training contract with Yolarno Pty Ltd.

118 The second (context specific) contention is that the identification of the employer under the training contract should be understood as limited to an identification for the purposes of the 2001 Act itself; it provided no help in determining the relevant question, which was whether Yolarno or the Respondent was the employer for the purposes of relevant provisions of the 1987 Act and the 1998 Act.

119 In its present form, the 1998 Act contains a definition of “training contract”, adopting the meaning in the 2001 Act: s 4(1) training contract. Similarly, there is recognition of training contracts in Schedule 1 of the 1998 Act, given effect by s 5 thereof, cl 1 of which now states:

1 Workers lent or on hire

(the labour buyer)

(the labour hirer)

,

120 These provisions (“the 2003 amendments”) were introduced by the Workers Compensation Legislation Amendment (Trainees) Act 2003 (NSW) and now give effect to circumstances under the 2001 Act, by reference to the concept of “host employer” or otherwise, whereby a trainee might undertake work under a training contract for a person other than the employer identified in the training contract. However, as at May 2001, these provisions had not been introduced into the 1998 Act. The only variation then made was the insertion of a definition of “trainee”, by reference to the 2001 Act, in s 150(1), dealing with insurance arrangements for trainees. A similar amendment had been made to s 158 of the 1987 Act, both amendments being included in Schedule 3 to the 2001 Act. The 2003 amendments also substituted the term “training contract” for “apprenticeship” in numerous provisions and included the definition of training contract noted above. Those amendments commenced on 1 January 2004: see s 2.

121 The reason for the belated amendments to pick up the provisions of the 2001 Act was not explored on the appeal. Nor was there any considered exploration of whether a traineeship under the 2001 Act was a concept materially different from either apprenticeship or employment. Unless it forms a distinct category, a trainee would fall within the definition of “worker” in the 1998 Act, even prior to the 2003 amendments noted above. There are undoubtedly circumstances in which an arrangement which may colloquially be described as a cadetship or traineeship, will not involve either employment or an apprenticeship: see, eg, State Planning Authority (NSW) v Nash [1974] 1 NSWLR 684. However, a feature of such cases is that a potential employer pays the costs of the cadet or trainee to undertake full-time study in circumstances where there is no contract of service nor on the job training. That, however, is far removed from the present case.

122 In both February and May 2001, reference to the 2001 Act was to be found in each of the 1987 Act and the 1998 Act, but not in provisions which are presently relevant. The purpose of the definition of “employee” in the 2001 Act is probably to ensure that trainees, like apprentices, are not excluded from protections available to employees and may thus be applied generally and not just within the 2001 Act. However, this case can be resolved without deciding that question.

Conclusions

123 The answer given by the primary judge to the first of the separate questions identified in the interlocutory order made on 3 March 2006, should be set aside.

124 Although the trial judge answered the first and second questions “yes”, it is not clear whether the proceedings were dismissed. In relation to courts where there is no formal entry of orders, it is sometimes necessary to trawl through the judgment and the transcript of the trial to find out what orders, if any, were made. I have not identified any order dismissing the proceedings. It follows that the appeal should have been brought by way of a summons seeking leave to appeal from an interlocutory decision, and not by way of appeal as of right: District Court Act 1973 (NSW), s 127(2)(a). No objection was taken to the procedure adopted, but appropriate orders should be made to rectify that procedural anomaly.

125 In relation to the costs of the trial, the trial judge identified circumstances which, despite the defendant’s success, required it to pay the plaintiff’s costs up to and including 21 March 2006 and for the plaintiff to pay the defendant’s costs from that date. That order should be set aside and the defendant should be ordered to pay the plaintiff’s costs of the trial.

126 In relation to the costs of the appeal, the Respondent should pay the Appellant’s costs, and should have a certificate under the Suitors’ Fund Act 1951 (NSW) if not disqualified pursuant to s 6(7) of that Act.

127 I would propose the following orders:

1. Treat the notice of appeal without appointment filed on 16 August 2006 as an application for leave to appeal.

2. Grant leave to appeal.

Q1: Was Bindaree Beef Pty Ltd the employer of the plaintiff for the purpose of the workers compensation legislation as at the date of the accident the subject of the plaintiff’s claim, being on or about 11 July 2002.

A: No.

Q2: In the event that the answer to the question in order 2 is “yes”, should the plaintiff’s proceedings be dismissed?

A: Does not arise.

Q3: In the event that the answer to question 2 is “yes”, should the plaintiff pay the defendant’s costs of the whole of the proceedings?

4. Set aside the order for costs of the trial in the District Court, made on 4 August 2006, and in lieu thereof order the defendant in that Court to pay the plaintiff’s costs of the proceedings up to and including 4 August 2006.

5. Order the Respondent to pay the Appellant’s costs of the appeal.

Suitors’ Fund Act

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07/03/2008 - Paragraphs deleted due to software glitch - Paragraph(s) 1-105

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Citations

Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125

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CITATION:	Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	17 May 2007
JUDGMENT DATE:	4 June 2007
JUDGMENT OF:	Spigelman CJ at 1; Giles JA at 2; Basten JA at 76
DECISION:	(By majority) (1) Refuse leave to amend the notice of appeal to add the proposed ground 6. (2) Appeal dismissed with costs.
CATCHWORDS:	Personal injury - injury at processing plant - who was employer - employed by company conducting processing plant - then became trainee under training contract - different company named as employer in training contract - continued with same work - continued to be paid by first company - circumstances in which second company named as employer - not with clear consciousness it was to be the employer - effect of Apprenticeship and Training Act 2001 - if second company was employer, whether Workers Compensation Act 1987 or Workplace Injury Management and Workers Compensation Act 1998 made first company the employer for the purposes of those acts.
LEGISLATION CITED:	Apprenticeship and Traineeship Act 2001 Vocational Education and Training Accreditation Act 1990 Vocational Education and Training Act 2005 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998.
CASES CITED:	Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 Bird v Commonwealth (1988) 165 CLR 1 Carroll v Mijovich (1991) 25 NSWLR 441 Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 Coulton v Holcombe (1986) 162 CLR 1 Ermogenous v Greek Orthodox Community of SA Inc (2001) 209 CLR 95 Hewitt v Benale Pty Ltd (2002) 27 WAR 91 Ingram v Little [1961] 1 QB 31 Klein v Minister for Education [2007] HCA 2 Kotevski v Esselte Australia Pty Ltd [2005] NSWCA 126 Lissenden v CAV Bosch Ltd (1940) AC 412 National Transport Insurance Ltd v Chalker [2005] NSWCA 62 Ocean Road Motel Pty Ltd v Pacific Acceptance Corporation Ltd (1963) 109 CLR 276 OP Industries Pty Ltd v MMI Workers Compensation (NSW) Ltd (1998) 17 NSWCCR 193 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Pitcher v Langford (1991) 23 NSWLR 142 Rydelar Pty Ltd v Euphoric Pty Ltd [2001] NSWCA 65 State Planning Authority (NSW) v Nash [1974] 1 NSWLR 684 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Taylor v Johnson (1983) 151 CLR 422 Toll (FGCT) Pty Ltd v Alphaparm Pty Ltd (2004) 219 CLR 165 VACC Insurance Ltd v BP Australia Ltd (1999) 47 NSWLR 716 Water Board v Moustakas (1988) 180 CLR 491 Western Sydney Regional Organisation of Councils Group Apprentices v Statrona Pty Ltd (2002) 12 ANZ Ins Cas 61-530
PARTIES:	Jason Ronald Shaw - Appellant Bindaree Beef Pty Ltd - Respondent
FILE NUMBER(S):	CA 40518/06
COUNSEL:	S Campbell SC & D Toomey - Appellant L King SC & J Priestley - Respondent
SOLICITORS:	Lee Sames Egan, Coffs Harbour - Appellant Johnstone Robinson Legal - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	50/2005
LOWER COURT JUDICIAL OFFICER:	Phegan DCJ
LOWER COURT DATE OF DECISION:	4 August 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	(Phegan DCJ, 4 August 2006, unreported)