WORKCOVER AUTHORITY OF NEW SOUTH WALES v DEPENDABLE TAXI TRUCKS ANDCOURIERS (SYDNEY) PTY LTD and ORS [1994] NSWCA 352

WORKCOVER AUTHORITY OF NEW SOUTH WALES v DEPENDABLE TAXI TRUCKS AND COURIERS (SYDNEY) PTY LTD and ORS

SUPREME COURT OF NEW SOUTH WALES COMPENSATION COURT OF NSW - MORONEY CCJ

PRIESTLEY, MEAGHER and HADLEY JJA 3 May 1994, 17 June 1994 [1994] NSWCA 352

WORKERS COMPENSATION ACT 1987 s20(1) — in this case the application of s20(1) should have been considered — work for which contractor was engaged was work undertaken by principal in the course of its trade or business — work done was pursuant to contract — requirements of s20(1) fulfilled — WorkCover Authority to pay Mr Anevski's costs.

The worker was injured when he fell from his truck while unloading it at the premises of Rapid Metal Developments (Aust) Pty Ltd (RMD). The work was being done at the request of Dependable Taxi Trucks and Couriers (Sydney) Pty Ltd (Dependable). The worker claimed workers compensation from Dependable claiming that for relevant purposes he was a worker employed by Dependable. As Dependable did not have a policy of insurance under the Act covering Mr Anevski the WorkCover Authority of New South Wales was named as second respondent (under s140 of the Act). RMD was named as a third respondent, a claim being made against it under s20(1) of the Act. Moroney CCJ found the worker was relevantly employed by Dependable and that Dependable should pay compensation, but that as Dependable was not insured the WorkCover Authority should pay out of the statutory fund. In relation to the claim against RMD under s20(1) Moroney CCJ held that in view of his finding against Dependable it was not necessary to consider this alternate case.

Held: (1) Once it was found the worker was employed by Dependable it became necessary to consider whether the requirements of s20(1) were fulfilled. As Moroney CCJ had not done this it was necessary for the court to consider whether the requirements of s20(1) were, on the evidence before the trial judge, fulfilled. (2) The proper inference from the evidence was that the delivery of goods from and to the premises of RMD was part of the work undertaken by RMD and that it was in the course of RMD's trade or business that it engaged Dependable for the execution of part of that work. (3) The evidence showed that the business relationship between RMD and Dependable involved Dependable doing things for RMD which were done pursuant to contract. (4) Hence, the requirements of s20(1) were fulfilled so that RMD was the party liable to pay compensation payable under the Act and Moroney CCJ should have made declarations, awards and orders accordingly. (5) As the worker was justified in resisting the appeal (which until the hearing of the appeal began challenged the finding in his favour that he had been relevantly employed by Dependable) and instructing solicitors and counsel for this purpose, and as the WorkCover Authority did not take advantage of RSC Pt51 R6(5) and invite the worker to enter a submitting appearance and take no active part in the proceedings, the WorkCover Authority should pay the worker's costs of the appeal.