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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- Case
- [2009] NSWCA 305
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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