DALGETY FARMERS LTD T/A GRAZCOS v BRUCE and ANOR [1995] NSWCA 113

DALGETY FARMERS LTD T/A GRAZCOS v BRUCE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy ACJ, CLARKE and COLE JJA 21 July 1995, 3 August 1995

[1995] NSWCA 113

WORKERS' COMPENSATION — employment ascertaining employer — paper documentation — shearer signs employment engagement form — tax, superannuation and workers' compensation deducted or paid — documents not sham — held: Shearer employed by pastoralist, not contractor.

Pitcher and Anor v Langford and Anor (1991) 23 NSWLR 142 (CA) distd.

APPEAL - facts - need to show error - need to show primary decision wrong - respect for primary decision modesty in appellate classification of facts differently.

Articulate Restorations and Development Pty Ltd v Crawford (1994) 57 IR 371 (CA) applied.

WORKERS' COMPENSATION - employment - by whom employed - shearer in team provided by contractor to pastoralist - shearer under daily direction of overseer employed by contractor - shearer signs employment agreement with pastoralist - overseer under directions of pastoralist as to aspects of performance of work - specific agreement between contractor and pastoralist to employ shearers - upon injury, shearer makes application upon pastoralist and is paid compensation for extensive period - upon a dispute arising, the Compensation Court (Manser CCJ) awards compensation against contractor - upon appeal to the Court of Appeal - held: (1) Documentary arrangements will not necessarily indicate the true identity of the employment relationship between the parties. Pitcher and Anor v Langford and Anor (1991) 23 NSWLR 142; (2) In the disputes concerning ascertainment of employment, the Court of Appeal will only intervene if it is shown that the primary judge was wrong. Connelly v Wells (1994) 55 IR 73 (NSWCA); Articulate Restorations and Development Pty Ltd v Crawford (1994) 57 IR 371 (NSWCA) applied; (3) Documentary arrangements are not irrelevant to the determination and ascertainment of employment, at least where they are not shown to be a sham. WorkCover Authority of New South Wales v Billpat Holdings Pty Ltd and Ors, Court of Appeal (NSW), unreported, 14 July 1995;