Zaronias v Papaiani

[2002] NSWCA 207

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Zaronias v Papaiani [2002]  NSWCA 207

FILE NUMBER(S):
40442 of 2001

HEARING DATE(S):            19/06/02

JUDGMENT DATE: 31/07/2002

PARTIES:
Christine Louise Zaronias
v
Michael David Papaiani &

JUDGMENT OF:      Meagher JA Foster AJA Ipp AJA   

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S):        1260 of 2000

LOWER COURT JUDICIAL OFFICER:     Burke AJ

COUNSEL:
Appellant: Mr D T Kennedy SC & Miss E E Welsh
Respondent 2: Mr A T Candy

SOLICITORS:
Appellant: Taylor & Scott
Respondent 1: Unknown
Respondent 2 & 4: William Clinton
Respondent 3: Stephen Bottrill
Respondent 5 & 6: Taylor & Scott

CATCHWORDS:
Whether the deceased was entitled to an award under the Workers' Compensation Act - whether the deceased could be classified as an employee or volunteer - whether the trial judge's discretion miscarried for not allowing the case to be re-opened - appeal dismissed with costs.

LEGISLATION CITED:
Workers' Compensation Act 1987

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40442 of 2001

MEAGHER JA
FOSTER AJA
IPP AJA

Wednesday, 31 July 2002

CHRISTINE LOUISE ZARONIAS v MICHAEL DAVID PAPAIANI

FACTS
The appellant, Ms Zaronias, was the widow of the deceased, who was killed when a wall collapsed on him. At the time of his death, the deceased was in receipt of worker’s compensation payments which were made to him voluntarily following an accident which occurred in the course of his employment. These payments were also supplemented by occasional casual work for the first respondent, Mr Papaiani, and the third respondent, who were engaged in the business of demolition and tidying work on their premises. The arrangement between the deceased and the respondents, was that the latter would advise the former when any work was available at the demolition site.

The trial judge held that there was no contract of service between Mr Zaronias (the deceased) and the first respondent, and therefore, was not entitled to an award under the Workers’ Compensation Act since he was a volunteer and not an employee.

On appeal, it was contended that (i) the trial judge failed to give adequate reasons for his decision, (ii) the trial judge wrongly concluded that the deceased was not a “worker” and (iii) the trial judge’s discretion miscarried when he declined to permit the appellant to re-open her case.

HELD: Per Meagher JA (Foster AJA & Ipp AJA agreeing)

(i)Once a judge has accepted the evidence, the necessity for formulating reasons has passed, unless the evidence is absurd or self-contradictory. A judge is not under any obligation to sift through all the evidence before him and explain at length why he rejects each item which is conceivably inconsistent with his decision.

(ii)Even if one conceded that the question of whether the deceased was a worker was a mixed question of fact and law, once the trial judge made his primary findings of fact, the question of “employee or volunteer” could only be answered one way, i.e.…