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. It was then suggested that in August 1991 the worker sought from the present appellant work in the nature of painting, that in August 1991 or thereabouts he attended the appellant's premises and discussed the nature of the work and that ultimately they made a contract for the doing of the work. It was suggested that, having commenced the work in or about 28 August 1991, he slipped from a ladder while painting on 1 September 1991 and suffered the injuries in respect of which the present proceedings are brought. It was accepted that in order for the worker to succeed in a claim for worker's compensation in the present context, it was necessary for him to satisfy the provisions of Schedule 1 CL2 of the Workers Compensation Act 1987 in the form that provision was in at the relevant time. The terms of the provision are set out in the judge's judgment and I shall not repeat the whole of them. It was necessary, 2 UNREPORTED JUDGMENTS in order that he be deemed a worker under this provision, that there be a contract to perform work exceeding ten dollars in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor's own name or under a business or firm name) and that the contractor "neither sub-lets the contract or employs workers" within the terms of that provision. In order to establish whether what the worker had done for the appellant was done as being work incidental to a trade or business regularly carried on by him, an endeavour was made to show, as I have indicated, that he had done painting work for Ms Rosenberg, Mrs Wolfe and Mr Kader. There was a direct conflict of evidence before the judge as to whether work had been done by him for Ms Rosenberg or for Mrs Wolfe as alleged in the evidence on behalf of the appellant. The trial judge considered the evidence which had been given by the witnesses in this regard and came to the conclusion: "I am also not satisfied, on the balance of probabilities, that Mr Gergely painted either Clara Wolfe's or Tamera Rosenberg's premises. I think the probabilities are otherwise". If in fact that work was not done (I put aside the suggestion that work was done for Mr Kader, that being based essentially upon an alleged admission) then there is little or no evidence to support the view that the worker was carrying on a trade or business regularly at the relevant time. If that work was not done, then essentially the only work that was done in 1991 would have been the work done for the appellant. It was submitted that his Honour's findings in this regard should be put aside. Reference was made to the evidence which had been given on the one side and on the other. The learned judge had before him the worker; the worker gave evidence and was cross-examined. He had before him one of the ladies in question but not the other, and he had before him another witness, a Mr Hegedus, who had (I put the matter neutrally) assisted the worker in relation to what he was doing at relevant times. It was for the judge to come to a conclusion as to which of these witnesses he accepted and to what extent. It is, in my opinion, to be inferred from the judge's finding that he accepted the worker in preference to the evidence of Mrs Wolfe and Ms Rosenberg insofar as that evidence was inconsistent with his. In my opinion, having had the worker before him, he was entitled to come to that conclusion; having had one of the ladies before him he was entitled to come to the conclusion that her evidence was not cogent and did not convince him of the relevant matters or at least was unacceptable for the purpose of determining the existence of the relevant matters. I shall not reiterate the examination of the witnesses which his Honour set forth in his judgment; it would be pointless to do so. In my opinion it is apparent to anyone who reads the evidence and reads the judgment why the judge decided as he did. I do not think the law requires that the Court state these matters again in this Court. If that be so, then in my opinion the basis of the appeal in the present case goes. It is proper to record, again to prevent misunderstanding, that his Honour found that the gentleman to whom I have referred, Mr Hegedus, was not employed by the worker and that the relationship between them was one of friendship. I do not think that finding has been attacked; if it has I see no reason to come to any conclusion other than that adopted by the trial judge. In all the circumstances, I do not think that the appeal has been made out. I think that for the reasons to which I have referred, and the reasons given by the trial judge, it is proper that the appeal be dismissed. If it be dismissed it should be dismissed with costs. URJ KEMENY v GERGELY (Powell JA) 3 Clarke JA I agree. I only add that for my part I can see little, if any, evidence of the relationship of master and servant which was contended to exist between Mr Hegedus and the worker. In my opinion his Honour was correct to reject the claim based upon the supposed employment of Mr Hegedus and I agree with the orders proposed by the presiding judge. Powell JA For the reasons given by the President and the additional reasons given by Clarke JA, I also agree that the appeal should be dismissed with costs. Mahoney P: The order of the Court is therefore the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: JD Hislop QC Solicitors for the Appellant: Nevill and Edwards Counsel for the Respondent: KP Rewell Solicitors for the Respondent: Dennis and Co