Sandra Eldridge v Kemblawarra Child and Family Centre [1999] NSWCA 395

New South Wales Court of Appeal CITATION : Sandra Eldridge v Kemblawarra Child and Family Centre [1999] NSWCA 395 FILE NUMBER(S) : CA 40775/98 HEARING DATE(S) : 14/9/99 JUDGMENT DATE : 28 October 1999

PARTIES : Sandra Eldridge v Kemblawarra Child and Family Centre JUDGMENT OF : Meagher JA at 1; Sheller JA at 14; Fitzgerald JA at 15

LOWER COURT JURISDICTION : Compensation Court LOWER COURT FILE NUMBER(S) : 14008/97 LOWER COURT JUDICIAL OFFICER : Moran CCJ

COUNSEL : Appellant: J.D. Hislop QC\ G.R. Graham Respondent: A .Katzman S.C. SOLICITORS : Appellant: Rishworth Dodd & Co. Respondent: Hickson Wisewoulds CATCHWORDS : Employment contract- whether employee or volunteer - Workers Compensation Act 1926 ACTS CITED : Workers Compensation Act 1926 DECISION : Appeal dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA: 40775/98

MEAGHER JA SHELLER JA FITZGERALD JA

Thursday, 28 October 1999 Sandra ELDRIDGE v KEMBLAWARRA CHILD AND FAMILY CENTRE

EMPLOYMENT CONTRACT-WHETHER EMPLOYEE OR VOLUNTEER-WORKERS COMPENSATION ACT 1926

The appellant had been employed by the respondent for several years. The nature of employment tended to be sporadic as the respondent centre suffered from continuing financial crises. The appellant rejoined the respondent centre as a casual employee in July 1995. In October 1995 a new director was appointed to the centre. The appellant then ceased working for the centre, but recommenced employment in June 1996. In August 1996 the centre suffered a funding crisis and could no longer afford to pay the appellant. The appellant continued to offer her services to the centre. After some lengthy negotiations the respondent wrote to the appellant offering her employment for a 12 month period to commence on 13 January 1997. On 26 November 1996 the appellant was playing "chasings" at the centre when a child collided with her and she injured her back. The appellant claimed under the Worker's Compensation Act. This was contested, the centre arguing that at the time of the accident the appellant was not an employee but a volunteer. The trial judge found in favour of the respondents. On appeal the appellant argued that the circumstances surrounding the centre's financial position meant that fully employed staff would often be required to work without pay. A valid employment contract could therefore be inferred from her being at the centre. Held:. The trial judge's decision was based on the factual (not legal) evidence before him and so was non-appellable. The court found there had been no intention of either party to enter legal relations at the end of 1996. The contract was due to begin in early 1997 so at the time of the accident the appellant was only a volunteer at the centre. ORDER