Zheng v Xie

[2011] NSWWCCPD 58

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Zheng v Xie [2011] NSWWCCPD 58
APPELLANT:		Yue Zheng
FIRST RESPONDENT:		Sheng Li Xie
SECOND RESPONDENT:		Workers Compensation Nominal Insurer
FILE NUMBER:		A1-5704/10
ARBITRATOR:	Mr J Phillips SC
DATE OF ARBITRATOR’S DECISION: DATE OF APPEAL HEARING:		10 May 2011 20 October 2011
DATE OF APPEAL DECISION:		27 October 2011
SUBJECT MATTER OF DECISION:		Worker; whether contract of employment formed; whether wife has ostensible authority to bind husband; fresh evidence or additional evidence on appeal; reasons; weight of evidence; notice of injury; notice of claim; ss 352(6), 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
REPRESENTATION:		Appellant:	Mr de Greenlaw, instructed by Veritas Legal
First Respondent:	Mr Beauchamp, instructed by Firths
Second Respondent:	Mr Perry, instructed by DLA Piper
ORDERS MADE ON APPEAL:		The Arbitrator’s decision of 10 May 2011 is revoked and the matter is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision. Costs of the first arbitration, and of the second arbitration, are to follow the outcome of the second arbitration. Each party is to pay his or its own costs of the appeal.

BACKGROUND

1. Sheng Li Xie was born in China in 1958. He came to Australia in September 2001. He alleges that, on coming to Australia, he lived with the appellant, Mr Zheng, at Mr Zheng’s home at 9 Butterfield Street, Thornleigh (the Thornleigh premises) and continued to live there until about June 2008. He says he paid board of $100 per week until about the middle of 2003. Mr Xie claimed that, following this time, he received accommodation and food at no cost in return for working for Mr Zheng at 3 Ronald Avenue, Wahroonga (the Wahroonga premises). The Wahroonga premises are an investment property owned by Mr Zheng and his wife.

2. Mr Xie’s case is that, in the course of his employment with Mr Zheng, on 5 September 2006, he was cutting a tile on outdoor steps at the Wahroonga premises when a piece of tile entered his right eye causing him serious injury and loss of vision. It is also his case that, after the accident, Mr Zheng agreed to meet, and did meet, his hospital and medical expenses until mid-2008. Because Mr Zheng was uninsured, Mr Xie submitted a claim for compensation on the WorkCover Authority of New South Wales on 24 February 2009.

3. Mr Zheng’s case is that:

   (a)     Mr Xie only stayed at the Thornleigh premises for a few weeks after he arrived in Australia in 2001 and again, for a few weeks, after he was released from hospital in 2006. Other than this, Mr Xie’s visits were occasional, such as staying overnight after dinner parties, or visiting during his afternoon break between shifts at a nearby Chinese restaurant;

   (b)     he never agreed to Mr Xie staying at the Thornleigh premises rent-free in return for work…