MULHALL v ROBERTS [1995] NSWCA 302

MULHALL v ROBERTS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY ACJ, HANDLEY JA and ROLFE AJA 19 July 1995, 19 July 1995

WORKERS' COMPENSATION — worker — whether employed under contract of service — whether independent contractor — carpenter — working on site with putative employer — detailed instructions given as to performance of work — suggested employer a builder with other work sites — exclusive engagement at daily rate — weekly payment and supply of some tools — workers' compensation form signed as employer — judge in Compensation Court (Egan CCJ) rejects claim — refers to income tax return showing work in private business — applicant concedes that records indicate an independent business — on appeal to the Court of Appeal claiming that the applicant was a "worker" under a contract of service, or was a deemed worker under Schedule 1, CL2(1) Workers Compensation Act 1987 — HELD: (1) (By the Court): The task of the characterisation of the relationship between a private worker and employer requires scrutiny of all of the facts of the case and consideration of the entirety of the relationship between the parties. Stevens v Brodribb Sawmilling Co Pty

Ltd (1986) 160 CLR 16; Commercial Union Workers' Compensation (NSW) v Smith, Court of Appeal (NSW), unreported, 19 May 1994; [1994] NSWJB 44; Connelly v Wells (1993) 55 IR 73 (NSWCA); Articulate Restorations and Development Pty Ltd v Crawford (1994) 57 IR 371 (NSWCA); Lee Ting Sang v Chung Chi-Keung and Anor [1990] 2 AC 374 (PC) and Market Investigations Pty Ltd v Minister for Social Security [1969] 2 QB 173 (CA) applied; (2) Upon an application of the relevant tests (per Kirby ACJ, Handley JA concurring; Rolfe AJA dissenting): The proper interpretation of the facts was that, whatever the normal business usually carried on by the applicant, at the relevant title he was working for the respondent as a worker under a contract of service, and so entitled to compensation under the Workers Compensation Act 1987; (3) Accordingly, the alternative case based upon notional employment did not have to be considered; (4) Appeal allowed. APPEAL - workers' compensation - characterisation of relationship of parties - whether employer and worker - observations by Kirby ACJ on the applicable legal principles, and the need for caution in applying a characterisation different from that adopted by the primary judge. Connelly v Wells (1993) 55 IR 73 (NSWCA) referred to.