GYLDENLOVE v SECCOMBE [1989] NSWCA 93

GYLDENLOVE v SECCOMBE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, PRIESTLEY JJA, and Hope AJA 14 August 1989, 14 August 1989 [1989] NSWCA 93

WORKERS COMPENSATION — held that whether the parenthesis in s6(3A) of the Workers Compensation Act has been satisfied raises an issue of fact and not of law. ORDER Appeal dismissed with costs.

Samuels JA This is an appeal from a decision of Judge Manser in the Compensation Court and arises from the following circumstances: the deceased was, on 14 December 1987, killed in a motor vehicle accident while driving to the property owned by the respondent and the subject of a share-farming agreement between the deceased, the applicant who was his de facto wife, and the respondent.

The application made by the wife, the present appellant, was based upon the provisions of s6(3A) by which a contractor - that is to say someone working not under a contract of service but under a contract for services - is deemed to be a worker unless the requirements in the matter in brackets in the subsection are satisfied.

Judge Manser, in a full and careful judgment, dealt with the subsection and with the general question whether the deceased was employed under a contract of service at Common Law. He came to a negative conclusion upon both matters, hence the present appeal.

The appeal is confined to the argument that the deceased, although a contractor, was not, in the course of this share-farming agreement, performing work incidental to a trade or business regularly carried on by him in his own name, there being no question of his carrying on any business under a business or firm name.

On the evidence, he and the applicant carried on business together in partnership but there appears to have been no submission made at the trial - and there was none before us - that this circumstance affected the proper construction to be attributed to the parenthesis in s6(3A).