VACIK DISTRIBUTORS PTY LTD v KELLY [1995] NSWCA 480

VACIK DISTRIBUTORS PTY LTD v KELLY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY ACJ, CLARKE and COLE JJA 21 July 1995, 28 July 1995

[1995] NSWCA 480

WORKERS' COMPENSATION — worker whether contract of service established whether alternatively deemed worker kangaroo shooter- informal arrangement licence in worker's name — payment for assistance — absence of formalities — held: Right to control reserved — employment correctly found.

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 applied. WORKERS' COMPENSATION - worker - kangaroo shooter - whether worker or deemed worker (Schedule 1 CLS Workers Compensation Act 1987) - absence of income tax deductions and actual supervision - engagement by "worker" of other persons to assist in loading and unloading kangaroos, paid in cash by himself- provision of substitute when away - licence issued to "worker" for shooting - absence of sick leave, holiday pay and superannuation - evidence discloses letters of instruction as to job to be performed and pay character of informal arrangements - in Compensation Court Geraghty CCJ finds employment established - on appeal - held: No error - the right of control was retained - employment rightly found. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 applied. Workers Compensation Act 1987, Schedule 1 CLS. ORDERS Appeal dismissed with costs.

Kirby ACJ I agree with Clarke JA.

Clarke JA The respondent sustained an injury to his left knee on 20 February 1992 while he was working in the vicinity of a chiller, owned by the appellant, and situated in Oliver Street, Carinda. He claimed that he was employed by the appellant and that his injury had occurred during the course of that employment. Accordingly, he brought proceedings under the Workers Compensation Act 1987 ("the Act") for weekly payments and also for lump sums pursuant to s67 and s67 of the Act. The appellant raised a number of defences including a denial of employment.