PETKOVIC v LEHMAN BROTHERS PTY LTD [1991] NSWCA 223

PETKOVIC v LEHMAN BROTHERS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS AP, CLARKE and HANDLEY JJA 14 October 1991, 14 October 1991 [1991] NSWCA 223

WORKERS COMPENSATION — WORKER DEEMED WORKER — WORKERS COMPENSATION ACT, 1926, S6(3A) — REASONS — NO ERROR OF LAW

Clarke JA The parties in this case submitted a preliminary question for determination by Judge Coleman. That question was in these terms, "Whether or not the applicant was a worker or a deemed worker within the meaning of the Act".

Judge Coleman determined that question adversely to the worker, who is the appellant in this Court, and as a consequence made an award for the respondent. The appellant lodged a notice of appeal which, in its amended form, challenged the finding that the appellant had not shown himself to be a worker and additionally challenged the finding that the appellant had not shown himself to be a deemed worker.

When the appeal commenced counsel for the appellant, Mr Ryan, advised the Court that the challenge against the finding that the appellant had failed to establish that he was a worker was no longer pressed. Accordingly, it was accepted that it had been open to Judge Coleman to find that the appellant had not established that he was a worker and it was also accepted that that finding was not vitiated by legal error.

The submission which was made was that the adverse finding on the deemed worker issue was affected by two legal errors, the first being that the trial judge had failed to give reasons demonstrating how he had reached his conclusion; the second, which assumed an answer adverse to the appellant on the first question, asserted that the trial judge had misdirected himself as to the applicable law.

In this respect it was submitted that the trial judge reasoned to his conclusion simply upon the basis that he had determined that the appellant was an independent contractor at the relevant time. This it was said was a clear error because whether or not a person was a deemed worker depended upon the application of the test appearing in s6(3A) of the Workers Compensation Act, 1986, and this section contained a number of elements only one of which was that the worker was an independent contractor.