Zebra Stoneworks Pty Ltd v Ferreira [2001] NSWCA 86

New South Wales Court of Appeal

CITATION : Zebra Stoneworks Pty Ltd v Ferreira [2001] NSWCA 86 FILE NUMBER(S) : CA 40951/99 HEARING DATE(S) : 05/04/01 JUDGMENT DATE : 5 April 2001

PARTIES : Zebra Stoneworks Pty Ltd v Manuel Ferreira JUDGMENT OF : Mason P at 1 & 43; Heydon JA at 44; Ipp AJA at 2

LOWER COURT JURISDICTION : Compensation Court LOWER COURT CC 45230/98 FILE NUMBER(S) : LOWER COURT Bishop CCJ JUDICIAL OFFICER :

COUNSEL : J Cummins QC/A Jungwirth (Appellant) P Webb QC/ L Grey (Respondent) SOLICITORS : W K Chambers (Appellant) McClellands (Respondent) CATCHWORDS : PERSONAL INJURY - Worker's compensation determination - PRACTICE & PROCEDURE - sole issue to be determined was whether respondent was a "worker" or "deemed worker" - appellant sought to raise further issues and call further evidence - parties had agreed in application and answer that there was only one issue for resolution - in argument in open court the appellant had abandoned the further grounds - this was a tacit admission of the respondent's allegations on the abandoned issues - the appellant had failed to seek leave to withdraw the admissions - the appellant was rightly precluded from raising the abandoned issues. ND LEGISLATION CITED : Workers Compensation Act 1987 DECISION : Appeal dismissed. The appellant to pay the respondent's costs of the appeal.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40951/00 CC 45230/98 MASON P HEYDON JA IPP AJA

Thursday 5 April 2001

ZEBRA STONEWORKS PTY LIMITED v MANUEL FERREIRA

JUDGMENT

1 MASON P: I will ask Ipp AJA to deliver the first judgment. 2 IPP AJA: This is an appeal against a decision of Bishop CCJ in the Compensation Court whereby he ordered the appellant to pay the respondent, "on the basis of total incapacity", weekly compensation at the rate of $525.50 from 20 December 1998 "and continuing", together with medical and other expenses under s 60 of the Workers Compensation Act 1987 and costs, as adjusted. 3 The appellant relies on four grounds of appeal. The first is that Bishop CCJ wrongly precluded the appellant "from relying upon any ground pleaded in its answer other than the denial that the respondent was a worker". The second is that the learned judge wrongly precluded the appellant from calling evidence or making submissions on the issues of incapacity or economic loss. The third is that the learned judge erred "in determining that the respondent was entitled to a weekly award in the sum of $525.50 contrary to the evidence before the court as to the respondent's worker's earnings". The fourth is that the learned judge "denied the appellant procedural fairness in that he accepted the tender of medical evidence in the respondent worker's case but refused to accept the tender of medical evidence on behalf of the appellant". 4 Essentially the issues that arise stem from a decision made by Bishop CCJ that the sole issue that the appellant was entitled to raise in the application for determination was whether or not the respondent was a worker, or deemed to be a worker, employed by the respondent at the relevant time. Having concluded that this was indeed the sole issue before him, Bishop CCJ refused to allow the appellant to lead any evidence on any other issue. After determining that the respondent was "a direct employee" of the appellant at the relevant time, his Honour made the orders the subject of this appeal. 5 His Honour's decision so to limit the issues requires some elaboration. 6 The respondent was injured on 22 July 1997 when he was assisting in the placement of a large marble slab into position above a fireplace opening. In the course of the work the marble slab fell and struck the respondent on the head, neck and back and knocked him to the ground. 7 The respondent claimed workers compensation from the appellant and the appellant paid him weekly compensation from the date of the injury to 20 December 1998. 8 On 9 November 1998 the appellant's insurer wrote to the respondent informing him that it had decided to cease paying "ongoing workers compensation benefits" because the respondent did not "fall within the legal definition of a 'worker'". The insurer stated: "We will keep paying you workers compensation benefits up to 20 December 1998 so long as you give us medical evidence that you are still incapacitated and unfit for work." 9 The respondent made an application for determination which, in its amended form claimed weekly payments of $525.50 to himself and his dependant wife and children. The particulars to the respondent's application alleged that his current weekly wage rate and his average weekly earnings were $1,200 gross. 10 The appellant filed an answer to this application. The appellant denied liability and alleged that the respondent was not a worker, that he did not receive any injury as alleged and if he did so the injury did not arise out of or in the course of his employment with the appellant, that he did not have dependants as alleged, that any incapacity from which he may have suffered was unrelated to his employment with the respondent and that payments of compensation that had been paid were paid under a mistake of fact and without admission of liability. In addition, the appellant stated that it relied on s 11A of the Act and asserted that the respondent was not entitled to compensation "for the alleged psychological, stress anxiety or depression type injury because employment was not a substantial cause of the injury." 11 It was submitted on the respondent's behalf that the issue of incapacity was not an issue on the pleadings. For the reasons that I expressed later it is not necessary to decide this question. 12 On 13 October 1999 the application for determination came on for hearing in the Compensation Court before Campbell CCCJ. The appellant was represented by Mr Perry and the respondent by Mr Bauer, both of counsel. Mr Bauer informed the court that he was ready to proceed but that Mr Perry wanted to make an application. Mr Perry thereupon applied for an adjournment as "a very significant witness on the issue of worker or non-worker" was seriously ill and not available to testify. 13 The following exchange then occurred: "HIS HONOUR: What is the position of this witness? The issue is worker, the witness is what? PERRY: Yes your Honour. He is the managing director of the respondent. HIS HONOUR: It might be a bit hard to resist Mr Bauer if-- BAUER: Your Honour, if the issue is confined to worker, I now understand that to be the position, because that was the basis on which compensation was stopped after 18 months, then that would be so. Perhaps it can just remain in the list your Honour. There are two matters of subpoenas to produce documents, one to Zebra and two to GO. We would like to have access to the documents if they have been produced."