FRANK R WOLSTENHOLME PTY LTD v DAVIS [1995] NSWCA 155

FRANK R WOLSTENHOLME PTY LTD v DAVIS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY ACJ, ROLFE and BAINTON AJJA 18 July 1995, 28 July 1995

[1995] NSWCA 155

WORKERS' COMPENSATION — application of NSW Act — employer with business in Queensland advertises for stockman — worker telephones employer and applies for job — employer's officer says "All right, well I'll give you a two week trial" — worker says "Okay, I'll come up on the weekend" — whether acceptance of job offer occurred in New South Wales or Queensland — whether, within s13(1)(a) of NSW Act the employer employs a "worker" in New South Wales when the acceptance is received by telephone in New South Wales — whether employer made counter-offer of two week trial which was accepted by the worker with acceptance received in Queensland excluding application of NSW Act — Davidson CCJ concludes that employer accepted offer and that the suggested counter-offer incorporated trivial, usual or implied terms which did not prevent the application of s13(1)(a) of the NSW Act — on appeal to the Court of Appeal — held: (by the Court): (1) The word "employs" in s13(1)(a) of the Workers Compensation Act 1987, means "engages for employment".

Helmers v Coppins (1961) 106 CLR 156; Starr v Douglas and Ors (1994) 35 NSWLR 133 (CA) applied; Entores Ltd v Miles Far East Corp [1955] 2 QB 327 (CA) applied; New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29; BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1984) 180 CLR 266 applied; APPEAL - Court of Appeal - procedural fairness - application to raise additional ground - whether by any possibility such an issue, if raised at the trial, might have been resisted or met by evidence - held: (by the Court): It might. Leave refused. Coulton and Ors v Holcomb and Ors (1987) 162 CLR 1 applied. CONTRACT - making of - place of - offer and acceptance by telephone - where contract made - held: Made where acceptance received. Entores Ltd v Miles Far East Corp [1955] 2 QB 327 (CA) applied. WORDS and PHRASES - "there employs a worker". Workers Compensation Act 1987, s13(1). ORDERS 1. Appeal allowed; 2. Set aside the award in favour of the respondent in the Compensation Court of New South Wales; 3. In lieu thereof, order that an award be entered in favour of the respondent in that Court; 4. Order that the respondent pay the appellant's costs of the appeal but have a certificate under the Suitors' Fund Act 1951.