GLENMASON PTY LTD v KRAMER and ORS [1996] NSWCA 218

GLENMASON PTY LTD v KRAMER and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, PRIESTLEY and MEAGHER JJA 28 May 1996, 28 May 1996

[1996] NSWCA 218

Was worker an employee of the appellant company — Did Judge adopted a correct principle in reviewing the Commissioner's findings — Was worker totally incapacitated for work

WORKERS COMPENSATION — Appeal against review by Judge of Commissioner's findings — Whether Judge applied correct test — Whether respondent was employee of company — Incapacity for work: Held, appeal dismissed.

Appeal dismissed with costs.

Mahoney P This is an appeal against a judgment of her Honour Judge Truss given on 29 September 1995. The applicant, Elizabeth Wilhelmina Kramer sustained an injury on 14 August 1986. She claimed worker's compensation in relation to that injury. The matter came before a Commissioner and was found in her favour. It then came on for appeal or review before Truss J and on 29 September 1995 her Honour held that the application for review should be dismissed. The result was that the conclusion of the Commissioner that the applicant had been injured and was totally incapacitated, remained in force.

In this Court the issues that have been raised are, in form, three: first, whether it was correct to hold, as was held below, that the applicant Mrs Kramer was the employee of the applicant company. (I shall refer to it as the Glenmason company). Second, whether the learned judge had adopted a correct principle in reviewing the Commissioner's findings. And, third, whether in the end the conclusion should be that she was totally incapacitated for work.

The other company respondent, the Kramer company, has not been represented, before the judge or before this Court. It was, I think, a necessary party. The Court has been pressed to proceed in its absence. As in the event it will suffer no detriment, the Court has proceeded with the appeal in its absence from the proceeding. If it should later be agreed that what has been done does not bind it, that is a matter that can then be dealt with.