COMMERCIAL UNION WORKERS' COMPENSATION NSW LTD v SMITH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLEY and MEAGHER JJA 28 April 1994, 19 May 1994 [1994] NSWCA 57 WORKERS' COMPENSATION — appeal — appeal limited to point of law or challenge to fact finding — transitional provisions of Compensation Court (Amendment) Act 1989 — determination of when "proceedings commenced" — addition of insurer to proceedings — whether proceedings against insurer commenced on addition of insurer to proceedings already commenced — proper construction of Act and Rules — held: (by Kirby P; Meagher JA semble and Priestley JA expressing no opinion): (1) For the purpose of determining the application of Compensation Court Act 1984, s32 the relevant date is the commencement of the initial proceedings not the date of the addition of a party to those proceedings; (2) Accordingly, the added party's appeal was limited to one in point of law. Watson v Hanimex Colour Services Pty Ltd (1991) 8 NSWCCR 190 (CA) applied; Fernance v Nominal Defendant and Anor (1989) 17 NSWLR 710 (CA); Ketteman and Ors v Hansel Properties Ltd and Ors [1987] 1 AC 189 (HL) distinguished, (3) There were facts to support the primary judge's determination that the deceased was a worker of the insured employer. Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (CA) applied; (4) The judge's reasons, although brief, adequately expounded the grounds of his decision. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA) applied. PRACTICE and PROCEDURE - workers' compensation - appeal - regime of appeal - whether limited to point of law or includes review of facts - determination by reference to "commencement" of "proceedings" - held: Proceedings commence when original proceedings instituted and not when later application made to join a party to such proceedings. Jones v Dunkel (1960) 101 CLR 298 WORKERS' COMPENSATION - worker - whether deceased was worker of company - held: There was evidence to support the judge's conclusion that he was and that was the preferable conclusion. INSURANCE- workers' compensation - "employed in business" - worker for car sales company employed in work of demolition - held: He was nonetheless employed in the business of the company, viz car sales. STATUTES - construction - meaning and purpose of - policy of legislation - avoidance of inconvenient results - avoidance of disharmonious appellate rights within connected proceedings - Compensation Court Act 1984, s32. WORDS and PHRASES- "award given in proceedings commenced", employed in the business". Workers Compensation Act 1987. Compensation Court Act 1984, s32. Compensation Court (Amendment) Act 1989, Schedule 4, CL4. Compensation Court Rules, Pt! R2(2), and R4(2). 2 UNREPORTED JUDGMENTS ORDERS Appeal dismissed with costs. Kirby P The first point raised in this appeal concerned its scope It is important to determine this point because it defines the approach which the Court will take to the complaint which Commercial Union Workers' Compensation NSW Ltd (the appellant) brings to this Court against the orders and award of Moroney CCJ in favour of Mrs Susan Smith (the widow)- (the first respondent). THE CHRONOLOGY OF THE LITIGATION INSURER IS AN "ADDED PARTY" Mrs Smith succeeded at trial in her contention that her late husband, Mr Terrence Smith, was a worker within the meaning of the Workers Compensation Act 1987 and was employed by Jeff Miller Motors Pty Ltd (the second respondent) Moroney CCJ found the deceased worker received injury on 7 December 1988 in the course of his employment for the second respondent and died on 16 December 1988 as a result of his injury. Moroney CCJ made an award in favour of the widow which the appellant contests. His Honour ordered that an award be entered in favour of the widow against the appellant which was an "added respondent" to the proceedings which the widow had brought against Jeff Miller Motors Pty Ltd and the State Compensation Board (now the WorkCover Authority of NSW) (the third respondent to the appeal). The original Application for compensation, by which the widow commenced her proceedings in the Compensation Court of New South Wales, was dated 23 March 1989. The Answer of Jeff Miller Motors Pty Ltd was filed on 9 April 1990. The Answer by the State Compensation Board was filed on 21 November 1989. On 8 November 1989, a "Notice of Claim" was filed in the Compensation Court. By it, the widow notified the appellant that the court would, on a specified date, hear an application pursuant to s144(2)(b) of the Act to have the appellant joined as a party to the proceedings upon the footing that it: ".. may be liable to pay to the applicant compensation on the grounds that you may have insured the... liability [of Jeff Miller Motors Pty Ltd] under [an identified] Policy... " In answer to the Notice of Claim, the appellant filed its Answer as "added respondent". By the Answer, the appellant adopted the title to the proceedings in the Compensation Court. It accepted the matter number which had been assigned by that court to the Application of the widow for compensation under the Act. Its solicitor signed the appellant's Answer as "solicitor for the added respondent" on 13 March 1990. The proceedings were conducted on the footing that the appellant was added as a party to the proceedings upon the filing of the Notice of Claim on 8 November 1989 and without any further or other order of the Compensation Court. In this case it is unnecessary to explore the power of the Compensation Court has to set aside the joinder of an added respondent as a party to proceedings. No challenge to that joinder was made in this case. TWO APPELLATE REGIMES - WHEN WERE THE "PROCEEDINGS" COMMENCED? The problem which this chronology presents can be stated simply. Prior to I October 1989, and after the passage of the Compensation Court Act 1984, the regime governing appeals to this Court from the Compensation Court was that explained in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (CA). Relevantly, an appeal lay only on a grievance "in point of law" or upon the admission or rejection of evidence. The expression "point of law" was very strictly confined in the way explained in Azzopardi. That approach was URG@OMMERCIAL UNION WORKERS' COMPENSATION NSW LTD v SMITH (Kirby P) 3 reaffirmed in many subsequent cases. It was held that even apparently perverse "findings of fact", if based upon evidence, were within the province of the fact finding tribunal. Only if there was no evidence to support a relevant finding of fact or if the fact finding demonstrated a misunderstanding, or misapplication of the statutory test, could the error "in point of law" be demonstrated and relief provided by this Court in the appeal. I criticised this expression of the test in Azzopardi. I resisted its stringency. But the test was accepted by the Court and regularly applied. It produced from appellants a spate of challenges to Compensation Court awards on the footing that the judge had erred "in point of law" by failing to provide adequate reasons for the award. From this Court, it produced a series of suggestions for reform of the law based upon the apparent injustice of depriving compensation cases of great importance, involving large sums, access to this Court when other disputes, of less apparent importance, came to the Court as of right. To the suggestions of the Court, Parliament eventually responded. It enacted the Compensation Court (Amendment) Act 1989. One provision of the Act amended s32 of the principal Act to permit appeals to this Court on disputed facts, as well as upon grievances in point of law. It was then necessary to provide, as the amending Act did, for transitional cases. Schedule 4 to the 1989 Amending Act provided, in CLS, that the amendments to s32 would not apply: "\.. [I]Jn respect of an award given in proceedings commenced before the commencement of the amendments made to s32 by the Compensation Court (Amendment) Act 1989. " The Amending Act commenced on 1 October 1989. Accordingly, the question in a number of transitional cases was whether the award was given "in proceedings commenced before [1 October 1989]" or after that date. If before, the appellant would be confined to the pre amendment regime and to the stringencies established in Azzopardi. If, however, the relevant "proceedings" were commenced after 1 October 1989, the appellant would have an appeal to this Court on the facts, provided there was sufficient (as there is in this case) at stake. There was no doubt in the instant case that the widow's "proceedings" commenced before the amendment to s32 achieved by the Compensation Court (Amendment) Act 1989. Had there been a timely appeal by the widow or by Jeff Miller Motors Pty Ltd or the WorkCover Authority as successor to the State Compensation Board, such an appeal would undoubtedly have been confined to a grievance in point of law and to the narrow ambit which Azzopardi laid down. On the face of things, the appeal by the present appellant seemed to fall within that class. The appellant was an added party to the proceedings brought by the widow which commenced in March 1989. It accepted its status as an "added respondent" to those proceedings. Its solicitor so initialled its documents. He assigned to them the matter number of the widow's proceedings. INSURER'S ARGUMENTS: NEW "PROCEEDINGS" WHEN IT WAS ADDED Nevertheless, the appellant argued that it should be regarded as a party to separate proceedings which were, in effect, initiated by the Notice Of Claim filed on 8 November 1989, ie after the commencement of the relevant amendments. It advanced this argument upon a number of bases: 4 UNREPORTED JUDGMENTS 1. That, for the application of limitation statutes, where time is also important, an action is taken to have been commenced where a party is added to proceedings, at the time of the addition of that party and not at the time of the commencement of earlier proceedings to which the party was not joined. See eg Fernance v Nominal Defendant and Anor (1989) 17 NSWLR 710 (CA), 720, 731. See also Ketteman and Ors v Hansel Properties Ltd and Ors [1987] I AC 189 (HL), 198. By parity of reasoning, it was suggested the true commencement Of the proceedings against the appellant, joined as an "added respondent" to the compensation proceedings of the widow and the parties originally sued, would be the time when the proceedings to add the appellant were taken, not earlier; 2. In support of this submission, the appellant relied upon Ptl R4(2) of the Compensation Court Rules governing joinder of parties and claims in the Compensation Court. Relevantly, the rule provides: "4(2)... [S]eparate applications may be included in the one proceeding and separate proceedings may be consolidated or heard together as a Judge may direct. Any person by or against whom any award, order, declaration or other relief is sought, whether jointly or severally or in the alternative, in an application made by an application for determination may be joined as a party to the one proceeding and any person joined as a party to the proceeding may by filing a notice of claim in the proceeding apply for an award, order, declaration or other relief against the applicant or any other party to the proceeding, and as permitted by these Rules against any person nol already a party to the proceeding, and such last mentioned person shall by service upon him of such notice of claim be joined as a party to the proceeding... " The appellant urged that this rule made it plain that it was joined as a party to the proceedings, but only as and from the date of the application for such joinder. Prior to that date, it was not a party to the proceedings. It should only be regarded as a party to the proceedings after its joinder; and 3. In the event of any ambiguity, the appellant urged that the amendment to s32 of the Compensation Court Act was a procedural reform which should inure to its benefit. It widened the scope of appeal in a way which was beneficial to it. It would be unfair to hold it to a regime which had been supervened by the time it first became involved in the litigation. At that time a new, reformed and beneficial regime applied. It should therefore have advantage of that regime, particularly because the reform was procedural in character and thus would prima facie apply to fresh proceedings. THE APPEAL IS LIMITED TO A POINT OF LAW There are, of course, persuasive aspects to these arguments. But they must fail: 1. When the new provisions of s32 of the Compensation Court Act were enacted, it was obviously necessary to provide for transitional cases. Unless the new provision were to have immediate application to all appeals, whenever commenced, an element of arbitrariness was necessary to determine, with precision, those appeals which attracted the amendment and those which did not. Parliament elected not to provide the wider appeal right to all appellants. Presumably it did this because such a facility would have caused confusion in the many appeals awaiting hearing which had been framed in terms of appeals in point of law. It would have been unjust to the appeals which had been foregone because of the previous limitation to points of law. Possibly, the need to introduce the new regime (which was a radical alteration in the longstanding limitation of appeals to points of law) gradually and prospectively might have persuaded the legislators to favour the provision accepted. The arbitrary criterion adopted was URG@OMMERCIAL UNION WORKERS' COMPENSATION NSW LTD v SMITH (Kirby P) 5 to make reference to "proceedings commenced before [1 October 1989]'. The great merit of this arbitrary criterion was that it would fix a definite date which would provide a simple and, as it was probably hoped, indisputable reference point to determine which appellate regime applied. Unfortunately, it has not proved so simple as earlier cases involving amendments to proceedings and as this case demonstrate; 2. Limitation Acts involve a number of special considerations which are not really applicable to giving meaning to the relatively clear language of CL4 of Schedule 5 of the 1989 Amending Act. The duty of this Court is to give meaning to that language and not to be diverted by analogies in other legislation: 3. When the provisions of Ptl R4(2) of the Compensation Court Rules are examined, far from assisting the appellant they are fatal to its contention. They provide for a party, such as the appellant, to be joined "as a party to the proceedings". This assumes that there already are proceedings. What can those proceedings be? Only the pre existing proceedings which have been brought at an earlier time by the parties initiating it. This view of the operation of Pt R4(2) of the Rules is confirmed by reference to Pt! R2(2) which contains a number of definitions. Thus, "applicant" and "respondent" are defined "in relation to Court proceedings" to mean the applicant and respondent respectively in an application "whether that application is made by application for determination or by notice of claim.. The one person may be an applicant in one application and a respondent in another application in the same proceedings". (emphasis added). The definition of "Notice of Claim" is "the document ordinarily appropriate for a further application to be made in an existing proceeding by a party to such proceeding". As this is the procedure by which the appellant was joined as a party to "the proceeding" in this case it is made clear beyond argument by the Rules that the appellant was made a party to "an existing proceeding". Thus the definition of a "Notice of Claim" makes completely clear what Pt! R4(2) in any case suggested. This is that the added respondent becomes a party to the proceeding which is already in existence. But that proceeding was, in this case, commenced before the commencement of the Amending Act; and 4. If there is any remaining ambiguity, there are reasons of principle for confirming the view just stated. They arise from the great inconvenience which would be presented if different regimes of appeal governed appeals, as in this case, by the widow, the employer itself and the WorkCover Authority (on the one hand) (all bound to an appeal in point of law) and the appellant, as putative insurer of the employer (which could raise, upon its argument, challenges to findings of fact). This dichotomy would cause considerable confusion in the hearing of the appeals. It could result in a serious injustice to one party to the appeals. Thus, the employer could be bound by a perverse finding of fact in respect of the widow's claim that her late husband was a worker. But the insurer, as the later added party, would be entitled to appeal against that finding, quite possibly to the detriment of the employer. Thus, if the widow were to prove that her late husband was a worker, the insurer would, upon the appellant's argument, be permitted to establish that the deceased was not a worker in fact. Yet, so far as the employer was concerned, it would be fixed with the finding that the deceased was a worker. It could not challenge that finding, even though it was perverse, so long as there was some evidence to support it. Clearly, this disharmony between the appellate rights of parties to the initial proceedings and patties later joined to those proceedings would be a source of confusion and potential injustice. This consequence can be avoided by giving the words in the 6 UNREPORTED JUDGMENTS Act and the Rules their primary meaning. By that meaning, parties joined subsequently become parties to the proceedings. Their appellate rights depend not upon the date of their joinder but, as the Act provides, upon the date of the commencement of the proceedings themselves. CONCLUSIONS AND ORDERS Once it is determined that the appellant's appeal is limited to a grievance in point of law (or in the admission of evidence) it is clear that the appeal against the determination of Moroney CCJ that the deceased was a worker of the second respondent must fail. There was certainly some evidence pointing to the fact that he was a worker. The question is fundamentally one of fact. No suggestion can be made that the judge applied an incorrect statutory test. Cf NSW Associated Blue Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509, 511f; National Insurance Co of New Zealand Ltd v Watts and Ors [1971] WCR 331; Azzopardi, above, 1517 156. The remaining legal challenge on the award in favour of the widow harkens back to the arguments which came into vogue when Azzopardi ruled. It was urged that Moroney CCJ's reasons did not reach the standard required by this Court in Pettitt v Dunkley [1971] 1 NSWLR 376 (CA) 389. However, as explained in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA), 281, it is sufficient if the reasons adequately expose the grounds for the judge's decision. Although Moroney CCJ's reasons are brief the reasons advert to a number of indicia which would support a conclusion that the deceased was a "worker" within the meaning of the Act. In my view they adequately expose the grounds of Moroney CCJ's decision. Applying the Azzopardi test, the appeal fails to present a single grievance in point of law. It must therefore be dismissed. In case I am wrong on this conclusion, and it is proper to consider the factual (but so called legal) arguments of the appellant, I agree with what Meagher JA has written about them. However, with respect, I consider that Meagher JA has demonstrated conclusively that all that is involved in the appeal are disputes of fact. And at the relevant time they could not in my view, be ventilated in this Court. The appeal should be dismissed with costs. Priestley JA The materials relevant to the question of fact argued in this case are sufficiently set out in the reasons of Meagher JA for the purpose of understanding the appellant's contention. On those materials, it seems to me clear that there was evidence before Moroney CCJ upon which it was open to him to decide the factual question in the way that he did. I do not see that the trial judge made any error in coming to his conclusion. The efforts of the appellant to persuade us otherwise seemed to be fuelled mainly by reliance on Jones v Dunkel (1960) 101 CLR 298 which in my opinion was not justified in the circumstances of the case. The next matter argued for the appellant concerned the construction of an insurance policy, the relevant provisions of which are set out in Meagher JA's reasons. Substantially for the reasons given by Meagher JA, it is my opinion that what was being done by Mr Smith when he suffered the injuries from which he died was comprehended by the insurance policy. It follows from these conclusions that the appeal, in my opinion, must fail. It is therefore unnecessary to deal with another matter that was argued, whether it was open to the appellant, in this appeal, to seek to rely on a ground of appeal which did not raise any question of law. \WROMMERCIAL UNION WORKERS' COMPENSATION NSW LTD v SMITH (Meagher JAY T agree with both Kirby P and Meagher JA that the appeal should be dismissed with costs. Meagher JA The essential facts are clear enough: the respondent Mrs Smith is the widow (or, as the trial judge quaintly put it, the "lawful widow') of the late Mr Terence Smith, who, on 16 December 1988, fell to his death from the roof of a building on 46 Flinders Street, Wollongong which he was helping to demolish. She successfully sought from Judge Moroney an award under the Workers' Compensation Act. Although the personae involved in the proceedings varied from time to time, both at the time of trial and on the hearing of the appeal they consisted of the following persons: Mrs Smith; Jeff Miller Motors Pty Ltd; the Commercial Union Workers' Compensation NSW Ltd, the apparent insurer of Jeff Miller Motors Pty Ltd; and WorkCover Authority, the statutory insurer of last resort. Jeff Miller Motors Pty Ltd was a company whose sole shareholders and directors were Jeffrey Miller and his wife Robyn. As I read the evidence, Mr and Mrs Miller were the owners in fee of both numbers 46 and 48 Flinders Street Wollongong; number 48 they had owned for some time, number 46 they had acquired but recently, on or about 16 June 1988. His Honour found that the company Jeff Miller Motors Pty Ltd was the occupier of both premises, and indeed the tenant of both. It paid all outgoings with respect to both premises and that was treated by Mr and Mrs Miller as the payment of rent. There was ample evidence to support their findings, and they were not challenged in any serious manner before this Court. Jeff Miller Motors Pty Ltd carried on the business of selling motor cars at number 48 Flinders Street. Number 46 was acquired so that the existing building on it would be demolished, a new building erected, and the new building used as an office for the car sales business. The builder in charge of the demolition was a personal friend of Mr Miller, called Walton, who apparently was supplying his serviceand free of charge. At the time of his death Mr Smith had been working on the demolition for but a few days. The issues below between Mrs Smith and Jeff Miller Motors Pty Ltd were whether the late Mr Smith was an employee of Jeff Miller Motors Pty Ltd or not and whether he was a "worker" within the meaning of the Workers' Compensation Act 1987: an answer to the first issue in the circumstances of this case necessarily provided an answer to the second. On the pleadings both issues were in dispute but at the hearing Jeff Miller Motors Pty Ltd conceded that Mr Smith was employed by it and hence that he was a "worker". The same issues arose between Commercial Union Workers' Compensation NSW Ltd, and the WorkCover Authority, because if Mr Smith had not been employed by Jeff Miller Motors Pty Ltd he was not a "worker" within the Act and his death would not be within the terms of the former's policy. The logical possibilities concerning Mr Smith are (a) that he was a mere volunteer, not an employee of anyone; (b) that he was employed by Jeff Miller Motors Pty Ltd; (c) that he was an employee of Mr and Mrs Miller; and (d) that he was employed by Mr Walton. His Honour came down in favour of possibility (b), and I think he was correct, although the relevant evidence is thin to the point of being anorexic. As to possibility (a): it is inherently unlikely for any person to consent to perform extended physical labour without remuneration, and this is particularly so when, as here, the labourer is both destitute and in need of money; it is true 8 UNREPORTED JUDGMENTS that Mr Walton happened to be working in a voluntary capacity, but it would be fanciful to assume his altruism was infectious; it is also true that the police Occurrence Pad Entry report that Mr Smith was working without remuneration, but that statement is on the face of it made in order to avoid reporting the incident to the Department of Labour and Industry. As to possibility (b): there is no evidence whatsoever. As to possibility (c): there is no evidence except that Mr and Mrs Miller were the owners in fee of number 46, and were the landlords. This is insufficient, particularly as Mrs Miller gave evidence and did not embrace any suggestion that she and her husband were Mr Smith's employees. As to possibility (d): it is, in the circumstances, the most rational possibility; it is supported by the evidence that Mr Smith told his neighbor Mrs Thurbon that he was to be employed by the Company; by Mrs Miller's evidence that she and her husband had decided that the company would employ him and pay him out of its money along with its other employees; and by the company's admission that it was in fact Mr Smith's employer. As Mr Adams QC, learned senior counsel for the company, said, any conclusion other than that the company employed Mr Smith was "quite absurd". Almost the only submission which was put by Mr McConachie QC, the senior counsel for the appellant insurance company, was that the rule in Jones v Dunkel (1959 and 1960) 101 CLR 298 had been infringed, as Mr Miller was available to give evidence although no party called him. This in some way was said to prevent any inference being drawn that the company was the employer of Mr Smith. This submission was made more than once, yet I cannot follow it. The "rule in Jones v Dunkel" can only operate against the party whom one would expect to call the witness in question, that party in whose "court" the witness stands. In the present case this could hardly be the company, which had unconditionally admitted employment by them of Mr Smith; it could hardly be the WorkCover Authority, which had no apparent connection with Mr Miller; if anyone, it would be the insurance company which is the present appellant and Mr McConachie QC's client. The appellant's appeal on the question of who, if anyone, was Mr Smith's employer therefore fails. The next contentious issue concerns the insurance policy which the company had with the appellant, which denies its liability to indemnify the company. The policy is in evidence. I shall quote the relevant provisions (emphasis supplied): "AND WHEREAS the Employer (as shown in the Schedule and in this Policy called "the Employer") is carrying on the business (as shown in the Schedule) and no other for the purpose of this indemnity and has made to City and Country Workers' Compensation NSW Ltd a licensed insurer a written Proposal and Declaration containing certain particulars and statements which it is hereby agreed shall be the basis of this contract and be considered as incorporated in this Policy. "NOW THIS POLICY WITNESSES that in consideration of the payment by the Employer to the Insurer of the Premium (shown In the Schedule which Premium is subject to adjustment as hereinafter provided)IF, between the Initial Period stated in the Schedule and thereafter to 4 pm. on the last day of any subsequent period in respect of which this Policy is duly renewed, the Employer becomes liable to pay compensation under the Act to or in respect of which this Policy is duly renewed, the Employer becomes liable to pay compensation under the Act to or in respect of any person who is or is deemed by the Act to be a worker of the Employer (including any person to whom the Employer is liable by \WROMMERCIAL UNION WORKERS' COMPENSATION NSW LTD v SMITH (Meagher JAD force of s20 of the Act to pay compensation) or becomes liable to pay any other amount in respect of the Employer's common law liability In connection with anything for which compensation is payable under the Workers' Compensation (Dust Diseases) Act 1942 of the Workmen's Compensation (Broken Hill) Act, 1920. "THEN, and in every such case, the Insurer will indemnify the Employer against all such sums for which the Employer shall be ando liable,: the Insurer will also pay all costs and expenses incurred with the written consent of the Insurer in connection with the defence of any legal proceedings in which any such liability is alleged. "PROVIDED that this Policy shall not extend to any business other than that described in this Policy, unless and until particulars of the business have been supplied to and accepted by the Insurer and the acceptance of that extension endorsed on this Policy by the Insurer." The "business described in the Schedule" was "Motor Car Sales". It was submitted by Mr McConachie QC that in the circumstances the activities being performed by Mr Smith when he died were not comprehended by the policy, because (as I understand it) he was employed in the business of demolition not in the business of selling motor cars. He took us to s159 of the Workers' Compensation Act, 1987 and the various cases which have discussed its ambit, to bolster his submission. I cannot understand why either the Act or the curial authorities are of assistance or relevance. In my view, the submission of Mr Deakin QC learned senior counsel for the WorkCover Authority in this appeal should be accepted. The company's workers compensation liability to the workers in its business is the subject of the insurance. Its business is the business of selling motor cars. There is no suggestion it was carrying on any other business. That business was being carried on at 46 - 48 Flinders Street, Wollongong. Mr Smith was employed in that business. He was ando employed notwithstanding the fact he did not personally sell any motor cars. Likewise, the tea lady and the gardeners employed by the company were employees of the "business". The only relevant question is whether Mr Smith was employed in the only business which the company carried on, and he clearly was. For these reasons the appellant must fail on this issue also. There was also an issue as to whether the appellant was entitled to agitate both the grounds it did, because each ground concerned a question of fact only. On this question Kirby P has also pronounced against the appellant. I probably agree with him, but will not opine on the matter as I think the appellant must lose In any event. I propose that the appeal be dismissed with costs. Appeal dismissed with costs. Counsel for Appellant: JE Maconachie QC / SG Campbell Instructed by: Leigh Virtue and Collins Counsel for 1st Respondent (Widow): G Little Instructed by: Mooney and Kennedy Counsel for 2nd Respondent (Employer): MM Adams QC / I Judd 10 UNREPORTED JUDGMENTS Instructed by: Hansons Counsel for 3rd Respondent (WorkCover): PD Deakin QC / B Kops Instructed by: Solicitor for WorkCover Authority