VENEER AND TIMBER PRODUCTS PTY LTD v YARNOLD AND ORS [1995] NSWCA 486

VENEER AND TIMBER PRODUCTS PTY LTD v YARNOLD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY ACJ, ROLFE and BAINTON AJJA 18 July 1995, 4 August 1995

[1995] NSWCA 486

WORKERS' COMPENSATION employment — notional worker — rural work timber felling — whether legal error in finding of employment — sufficiency of "control test" whether sufficient but not necessary.

Connelly v Wells (1993) 55 IR 73 (CA) applied.

PRACTICE AND PROCEDURE - appeal limited to point of law - need to avoid artificial or unduly pernickety approach need to consider reasons in entirety.

EMPLOYMENT - employee/employer relationship - indicia of - "control test" whether necessary - whether sufficient.

WORKERS' COMPENSATION - employment - whether contract of service - rural work - whether contractor deemed to be "worker" - applicable test judge of Compensation Court (Thompson CCJ) applies "controls test" whether legal error shown in appeal limited to point of law - whether necessary to consider entirety of relationship - whether "controls test" constituted an unduly narrow legal criterion occasioning legal error susceptible to correction ki: (1) The question of the control by a putative employer of a worker and the extent and features of such control remain important indicia of the relationship of employment. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Connelly v Wells (1993) 55 IR 73 (NSWCA); Articulate Restorations and Development Pty Ltd v Crawford (1994) 57 IR 371 (NSWCA) applied; (2) Whether control may be a sufficient but not a necessary test for employment reserved to a case where it is necessary to decide the point;

(3) Upon a fair reading of the reasons of the primary judge, he had given consideration to the entirety of the relationship as disclosed in the evidence and no error of law was shown. Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 (CA); Mahoney v Industrial Registrar of New South Wales and Anor (1986) 8 NSWLR 1 (CA) applied.