Vlado Adonovski v Park Tec Engineering Pty Ltd

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NEW SOUTH WALES COURT OF APPEAL

CITATION:
Vlado Adonovski v Park Tec Engineering Pty Ltd and Anor [2009] NSWCA 305

FILE NUMBER(S):
040367/08

HEARING DATE(S):
9 September 2009

JUDGMENT DATE:
27 October 2009

PARTIES:
Vlado Adonovksi (Appellant)
Park Tec Engineering Pty Ltd (First Respondent)
Barbeques Galore Pty Ltd (Second Respondent)

JUDGMENT OF:
Tobias JA Young JA Sackville AJA   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
1911/2007

LOWER COURT JUDICIAL OFFICER:
Johnstone DCJ

LOWER COURT DATE OF DECISION:
30 July 2008

COUNSEL:
Norton SC/Fraser (Appellants)
Watson SC/ Berberian (Respondents)

SOLICITORS:
Bydens Law Office (Appellant)
HWL Ebsworth (Respondents)

CATCHWORDS:
EMPLOYMENT- identity of injured worker's employer within group of companies- indicia for determining employer- separate question answered

LEGISLATION CITED:
Civil Procedure Act 2005 (NSW), s 56
Industrial Relations Act 1996 (NSW), s 123
Industrial Regulations (General) Regulation 2001 (NSW), cl 7
Limitation Act 1969 (NSW), s 50C
Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Workplace Injury Management and Workers Compensation Act 1998 (NSW), Chapter 7

CATEGORY:
Separate question

CASES CITED:
Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21
Shaw v Bindaree Reef Pty Ltd [2007] NSWCA 125
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16
Warren v Coombes [1979] HCA 9; 142 CLR 531

TEXTS CITED:

DECISION:
1. To the extent necessary, grant the appellant leave to appeal against Orders (c) and (d) made by Johnstone DCJ on 30 July 2008, dismissing the Appellant’s Motion and ordering the appellant to pay the respondents’ costs of the Appellant’s Motion.
2. Appeal allowed in part.
3. Set aside Orders (a) and (b) made by Johnstone DCJ on 30 July 2008 striking out the appellant’s Statement of Claim and dismissing the proceedings.
4. Pursuant to UCPR r 28.2, the following question be determined separately from any other question in the proceedings:“On 11 March 2004, the date the appellant alleges that he was injured, was he employed by Park-Tec or by Barbeques Galore?”
5. Answer the separate question as follows: “The appellant was employed by Barbeques Galore and not by Park-Tec.”
6. Set aside Order (d) made by Johnstone DCJ on 30 July 2008, insofar as it orders the appellant to pay the respondents’ costs of the substantive proceedings.
7. In lieu of Order (d) made by Johnstone DCJ, insofar as it is set aside by Order 6 above, Park-Tec to pay the appellant’s costs in relation to Park-Tec’s amended Notice of Motion filed on 10 March 2008 (including the costs of determining the separate question identified in the judgment of Johnstone DCJ).
8. Remit the proceedings to the District Court for determination consistently with these reasons.
9. Appeal otherwise dismissed.
10. The respondents to pay the appellant’s costs of the appeal, insofar as the appeal relates to the determination of Park-Tec’s ANM and the orders striking out the appellant’s statement of claim and dismissing the proceedings.
11. The appellant to pay the respondents’ costs of the appeal (including any application for leave…

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Details
Case
[2009] NSWCA 305
Decision Date

CaseChat Overview and Summary

The appeal concerned the identity of the appellant's employer at the time he sustained an injury. The appellant, Vlado Adonovski, alleged he was injured on 11 March 2004 while working at premises where Park-Tec Engineering Pty Ltd manufactured components. He had commenced employment within the Barbeques Galore Group in late 1996 or early 1997 and had undertaken truck driving and fabrication work. The dispute arose as to whether his employer at the time of the injury was Park-Tec or Barbeques Galore. The matter came before the Court of Appeal of New South Wales, with Tobias and Young JJA and Sackville AJA presiding.

The primary legal issues before the Court of Appeal were whether the District Court judge erred in striking out the appellant's Statement of Claim and dismissing the proceedings, and consequently, whether a separate question regarding the appellant's employer on the date of injury should have been determined. The court was required to consider the evidence presented to determine whether the appellant was employed by Park-Tec or Barbeques Galore at the time of his alleged injury.

The Court of Appeal allowed the appeal in part, setting aside the orders that struck out the appellant's Statement of Claim and dismissed the proceedings. The court determined that a separate question should be answered: "On 11 March 2004, the date the appellant alleges that he was injured, was he employed by Park-Tec or by Barbeques Galore?". The court answered this question, finding that the appellant was employed by Barbeques Galore and not by Park-Tec. This determination was based on several pieces of documentary evidence, including an employment form from 1999 headed "Group Employer-Barbeques Galore Limited", weekly pay slips issued solely in the name of Barbeques Galore which also recorded its Australian Business Number, and a Payment Summary for income tax purposes for the year ended 30 June 2004, which listed Barbeques Galore as the "Payer's Name". The court remitted the proceedings to the District Court for determination consistent with these reasons.

Orders

Orders of the court

1. To the extent necessary, grant the appellant leave to appeal against Orders (c) and (d) made by Johnstone DCJ on 30 July 2008, dismissing the Appellant’s Motion and ordering the appellant to pay the respondents’ costs of the Appellant’s Motion.

2. Appeal allowed in part.

3. Set aside Orders (a) and (b) made by Johnstone DCJ on 30 July 2008 striking out the appellant’s Statement of Claim and dismissing the proceedings.

4. Pursuant to UCPR r 28.2, the following question be determined separately from any other question in the proceedings:“On 11 March 2004, the date the appellant alleges that he was injured, was he employed by Park-Tec or by Barbeques Galore?”

5. Answer the separate question as follows: “The appellant was employed by Barbeques Galore and not by Park-Tec.”

6. Set aside Order (d) made by Johnstone DCJ on 30 July 2008, insofar as it orders the appellant to pay the respondents’ costs of the substantive proceedings.

7. In lieu of Order (d) made by Johnstone DCJ, insofar as it is set aside by Order 6 above, Park-Tec to pay the appellant’s costs in relation to Park-Tec’s amended Notice of Motion filed on 10 March 2008 (including the costs of determining the separate question identified in the judgment of Johnstone DCJ).

8. Remit the proceedings to the District Court for determination consistently with these reasons.

9. Appeal otherwise dismissed.

10. The respondents to pay the appellant’s costs of the appeal, insofar as the appeal relates to the determination of Park-Tec’s ANM and the orders striking out the appellant’s statement of claim and dismissing the proceedings.

11. The appellant to pay the respondents’ costs of the appeal (including any application for leave to appeal) insofar as the appeal relates to the orders dismissing the Appellant’s Motion.

12. The respondents, if otherwise qualified, should have a certificate under the Suitors’ Fund Act 1957 (NSW).

Background

Background to the litigation

At the time the appellant was injured, Barbeques Galore was a publicly listed company. It is common ground that Barbeques Galore ceased to be a listed company some time after the appellant was injured. Nothing turns on Barbeques Galore’s changed status.BACKGROUND Park-Tec was originally an independent company which supplied products to the Barbeques Galore Group. Barbeques Galore acquired all the shares in Park-Tec and took over its operations at some time before 1986. The appellant commenced employment within the Barbeques Galore Group in late 1996 or early 1997. In about 1999 he began to undertake work as a truck driver. However, he also undertook what he described as some of the “heavier fabrication work” at premises located at 46 Princes road, West Auburn (“the Premises”), where Park-Tec manufactured components for barbecues and other consumer durables. In 2004, according to Mr Nicola, the General Manager of Park-Tec, GLG Australia Pty Ltd (“GLG”), another company within the Barbeques Galore Group, leased the Premises. The written lease was not in evidence, but Mr Nicola said that he had seen it. Mr Nicola was unaware of any formal licence agreement between GLG and Park-Tec, but said that in the internal accounting within the Barbeques Galore Group, Park-Tec was charged with ”overheads for the rent”. He thought, however, that GLG actually paid the rent in respect of the Premises to the lessor. On 11 March 2004, the appellant was working on a platform at the Premises. He was attempting to empty some cardboard waste contained in a wire cage which had been placed on a pallet, when he encountered difficulties in opening the cage doors. He claims that he was injured when the cage doors flew open as he pulled them, causing him to fall backwards from the platform onto the concrete floor. On 19 March 2004, the appellant signed a workers compensation claim form. The employer’s name was recorded on that form, in typed characters, as “PARK-TEC ENGINEERING PTY LTD”. The claim form was submitted to Allianz, which was the workers compensation insurer for both Park-Tec and Barbeques Galore, but under separate policies. On 10 November 2004, Mr John Nettle sent a letter to the appellant on the letterhead of Barbeques Galore. Mr Nettle was identified in the heading to the letter as the “Pay and Personnel Manager”. The letter included the following:“We note that you allege to have suffered an injury out of and in the course of your employment on 11 March 2004.This company has tried to accommodate your physical incapacity. Unfortunately you have not been able to return to full-time normal duty. Medical evidence you supplied dated 28 October 2004 indicated you are unable to return to normal duty in the foreseeable future.We advise therefore that as and from 14 November 2004, as per your medical certificate, your services have been terminated and all payments will be made directly to you by our insurance company from 15 November 2004.We ask that you please contact … at Allianz Australia Workers Compensation NSW Ltd on … for any further enquiries regarding future benefits.We have also enclosed a tax form to be completed by you and forwarded onto Allianz Australia as soon as possible to ensure that your payments can be made properly.”THE DISTRICT COURT PROCEEDINGS

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

At the conclusion of the hearing, the primary Judge inquired of counsel whether they still wanted him to decide what he said was the “preliminary point”. According to the transcript, he received an affirmative answer from the appellant’s counsel. The primary Judge indicated that he would consider the parties’ written submissions before delivering judgment.THE PRIMARY JUDGMENT In the primary judgment, his Honour identified the separate issue for determination as “whether [the appellant] was employed, at the time he alleges he was injured, by Park-Tec or by [Barbeques] Galore”.His Honour observed that it was common ground that if Park-Tec was the appellant’s employer at the relevant time, the proceedings could not be maintained against it. It should be noted that the primary Judge’s formulation of the separate question in his judgment did not follow the language of the ANM. Nor was the formulation in precisely the terms stated by his Honour at the commencement of the hearing. The question as framed in the judgment assumes that the appellant’s employer at the relevant time must have been either Park-Tec or Barbeques Galore. This appears to reflect the basis upon which the parties approached the hearing. The primary Judge observed that the factual basis for the appellant’s contention that he had been employed by Barbeques Galore was “predominantly documentary”. He identified four documents, or sets of documents, on which the appellant particularly relied. Although his Honour did not set out details of the documentation in his judgment, it is convenient to do so here. First, on 7 June 1999, the appellant, who was described as the “Applicant”, completed a printed employment form. The form was headed “Group Employer-Barbeques Galore Limited”. A separate section of the form, which was completed by a manager and countersigned by Mr Nicola, recorded that the appellant commenced permanent employment on 9 June 1999. The form recorded the appellant’s position as “Production employee” but gave no further details. However, the appellant provided his driver’s licence details, suggesting that his employment related to truck driving duties. Secondly, all of the appellant’s weekly pay slips in evidence were issued in the name of Barbeques Galore and made no mention of Park-Tec. Each of the wage slips in evidence, which spanned the period from 12 May 2003 to 26 October 2004, designated the appellant as the “Employee”. The name “Barbeques Galore Limited” appeared at the foot of each slip. Although the document did not state expressly that Barbeques Galore was the employer, each slip recorded Barbeque Galore’s Australian Business Number (“ABN”). Thirdly, the Payment Summary provided to the appellant for the year ended 30 June 2004, which was issued for income tax purposes, recorded the “Payer’s Name” as Barbeques Galore. The period for which payments were said have been made to the appellant was 23 October 2003 to 30 June 2004. The authorised person signing the Payment Summary was Mr Nettle.

Ratio Decidendi

Legal Principle Established

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