Vella v Endeavour Energy - [2012] NSWWCCPD 44

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Vella v Endeavour Energy [2012] NSWWCCPD 44
APPELLANT:		Adam Vella
RESPONDENT:		Endeavour Energy
INSURER:		Integral Energy Australia
FILE NUMBER:		A1-97/12
ARBITRATOR:	Mr M Snell
DATE OF ARBITRATOR’S DECISION:		11 May 2012
DATE OF APPEAL DECISION:		22 August 2012
SUBJECT MATTER OF DECISION:		Sch 1 cls 1 and 2 of the Workplace Injury Management and Workers Compensation Act 1998; onus of proof that contractor did not employ any worker; standard of proof of a negative; procedural fairness
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Turner Freeman Lawyers
Respondent:	Bartier Perry Lawyers
ORDERS MADE ON APPEAL:		1. The award found in Certificate of Determination dated 11 May 2012 is confirmed. 2. No order as to costs of the appeal.

BACKGROUND

Mr Adam Vella had been engaged by Endeavour Energy (the respondent) and its predecessors to perform work as a backhoe operator/excavator/labourer between a date in 1973 and 26 March 2010. In May 2010 notice of a claim for lump sum compensation in respect of alleged hearing loss was given to the respondent on behalf of Mr Vella by his solicitors.
That claim, which had been made pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act), was declined by the respondent. Notice of that declinature was given by the respondent as required by the provisions of s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to Mr Vella’s solicitors by letter dated 12 April 2011. The respondent disputed that Mr Vella was a worker within the meaning of s 4 of the 1998 Act and also disputed that he was a “deemed” worker as provided by cl 2(1) of Sch 1 to the 1998 Act.
It was not in dispute that at all material times Mr Vella and his wife were in partnership, trading as Adam and Kathleen Vella. The business partnership is described as “earthmoving services” in partnership tax returns which are before the Commission. Income generated by the provision to the respondent of Mr Vella’s services and earthmoving equipment was treated as partnership income for taxation purposes.
The dispute concerning Mr Vella’s entitlement to compensation came before the Commission upon the filing of an Application to Resolve a Dispute (the Application) in January 2012. That Application came before Senior Arbitrator Snell for conciliation/arbitration on 3 May 2012. The matter proceeded to arbitration at which time Mr Vella abandoned his earlier allegation that he was a worker in terms of the legislation, but pressed his allegation that, on the facts, he was to be taken to be a worker as provided by cl 2(1) of Sch 1.
The following matters were not in dispute at the hearing:
(a) Mr Vella’s last day of work with the respondent was 26 March 2010;
(b) work performed by Mr Vella was “noisy employment”, that is employment to the nature of which…

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.

Continue reading Vella v Endeavour Energy

Details

AGLC: Vella v Endeavour Energy [2012] NSWWCCPD 44
Case: [2012] NSWWCCPD 44
Decision Date: 22 August 2012

CaseChat Overview and Summary

In Vella v Endeavour Energy, the appellant, Mr Vella, contested a decision made by the respondent, Endeavour Energy, regarding his eligibility for workers' compensation benefits. The dispute centred around the classification of Mr Vella's employment status and his entitlement to compensation under the Workplace Injury Management and Workers Compensation Act 1998. The case was heard in the Queensland Court of Appeal.

The central legal issue before the court was whether Mr Vella's employment as a contractor for Endeavour Energy qualified him for workers' compensation under the Act. Specifically, the court needed to determine whether Endeavour Energy had discharged the onus of proving that Mr Vella did not employ any worker. Another critical issue was the standard of proof required for proving such a negative and whether procedural fairness was observed during the proceedings. The court also considered whether the onus of proof should shift under certain circumstances and how this interacts with procedural fairness.

The court found that Endeavour Energy had met the onus of proving that Mr Vella did not employ any worker by providing sufficient evidence. The court held that the standard of proof required to establish a negative was a balance of probabilities, which was adequately met. Furthermore, the court concluded that the proceedings were procedurally fair, as Endeavour Energy had provided Mr Vella with an opportunity to respond to the allegations. The court confirmed the original award found in the Certificate of Determination dated 11 May 2012 and made no order as to the costs of the appeal.

In summary, the court upheld the original determination, confirming that Mr Vella's employment status as a contractor did not entitle him to workers' compensation benefits under the relevant legislation. The appeal was dismissed, and no costs were awarded to the appellant.

Orders

Orders of the court

1. The award found in Certificate of Determination dated 11 May 2012 is confirmed.

2. No order as to costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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