KEMENY v GERGELY [1996] NSWCA 300

KEMENY v GERGELY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, CLARKE and POWELL JJA 15 April 1996, 15 April 1996

[1996] NSWCA 300

Whether applicant deemed worker within Schedule 1 CL2 of the Workers Compensation Act 1987

Mahoney P This is an appeal from a decision of his Honour Judge Burke in the Compensation Court given on 3 April 1995. The essential question is whether the applicant, the claimed worker, was a deemed worker within the provisions of Schedule 1 CL2 of the Workers Compensation Act 1987. The matter was considered at length by the judge in a long and detailed judgment.

This matter comes before the Court as one of a number of cases on appeal from the Workers Compensation Court and for myself I would ordinarily be content to affirm the judgment given by the learned judge for the reasons that the judge has given. However, in order to ensure that there is no misunderstanding as to the reasons why the Court is of the opinion that it is, I shall refer as briefly as may be to the circumstances of the case and to the main submissions that have been made.

The respondent, whom I shall describe as the worker, came to Australia from Hungary in about 1985. He was then a painter by trade. He worked in that trade for some seven or eight months but suffered heart attacks and as the result of that ultimately gave up his ordinary work as a painter. Thereafter he did not work for some time and ultimately undertook work for the appellant in or about 1991. The question at issue is whether the worker had done the things which he is alleged to have done prior to that time and whether by reason of what it is proper to find he had done and what he had done for the appellant, he is to be taken to have been a deemed worker within the provision to which I have referred.

Putting the matter shortly, it was suggested for the appellant that the worker had done painting work for payment for a Ms Rosenberg at Paddington, for a Mrs Wolfe at Bondi and, as it was suggested, for a Mr Kader at Earlwood. It was suggested, as I understand the evidence and the written submissions that have been prepared, that these jobs of work were done in or about July and August 1991.