Translock Industries Pty Ltd v GIO Workers Compensation (NSW) Ltd [2006] NSWSC 177

Reported Decision : 151 IR 54

New South Wales Supreme Court

CITATION : Translock Industries Pty Ltd v GIO Workers Compensation (NSW) Ltd [2006] NSWSC 177

HEARING DATE(S) : 27 & 28 February, 1 & 14 March 2006

JUDGMENT DATE : 22 March 2006

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : The second defendant was in the employ of the plaintiff when injured.

CATCHWORDS : WORKERS' COMPENSATION [14], [230] – Entitlement to compensation – Persons entitled to compensation – Who is a "worker" or "employee" – Generally – Whether contract of employment with one employer terminated – Whether contract of employment entered into with new employer – Whether worker temporarily lent or let on hire – Whether lending established – Necessity for privity between lender and borrower.

Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 CASES CITED : Byrne v Australian Airlines Limited (1995) 185 CLR 410 Fogarty v Dowerin Road Board (1935) 53 CLR 510 Mondy v Newman-Underwood Tile Co Pty Ltd [1963] WCR 82

Translock Industries Pty Ltd (P) PARTIES : GIO Workers Compensation (NSW) Ltd (1D) Alan Peter Cook (2D)

FILE NUMBER(S) : SC 4987/04

J Guihot (P) COUNSEL : D T Miller (1D) B G McManamey (2D)

Golotta Law Practise (P) SOLICITORS : Moray & Agnew (1D) Maurice Blackburn Cashman (2D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

WEDNESDAY, 22 MARCH 2006

4987/04 TRANSLOCK INDUSTRIES PTY LIMITED v GIO WORKERS' COMPENSATION (NSW) LIMITED & ANOR JUDGMENT 1 HIS HONOUR: The plaintiff Translock Industries Pty Ltd claims to be indemnified under a workers' compensation policy issued by the first defendant GIO Workers' Compensation (NSW) Limited against liability for a claim for damages in the District Court at Sydney brought by the second defendant, Alan Cook, against it in respect of an injury suffered by him in the plaintiff's employ on 20 November 2000. After an arbitrator had given an award for the second defendant for the sum of $500,000, the first defendant, which had until then conducted the proceedings on the plaintiff's behalf, declined liability under the policy on the ground that the second defendant was not employed by the plaintiff at the time of the accident. 2 The issues which arise in these proceedings are as follows: 1 Whether the second defendant was employed by the plaintiff on 20 November 2000. 2 Whether the first defendant is estopped from denying that the second defendant was employed by the plaintiff on 20 November 2000. FACTS RELATING TO EMPLOYMENT 3 In 2000 Mario Mariani ("Mariani") was the controller of three companies in a Group. The first two were the plaintiff and Mariani Enterprises Pty Ltd ("ME"). The third company, e-Motion Research Pty Ltd ("e-Motion"), was formed on 2 July 2000 by Mariani and the second defendant to develop a computer system known as Sport++. The second defendant was a shareholder and director, as well as Mariani. Mariani's son, Michael Mariani, was also a director. 4 On 3 July 2000 e-Motion and the second defendant entered into a written employment agreement. Under that agreement the second defendant was employed by e-Motion to act in the capacity of general manager/technical director at a salary of $56,700 per annum gross. It was stipulated under the heading "Position and Responsibilities" that he would perform his duties and exercise his powers: "(c) on behalf of any of the companies in the Group as if they were duties to be performed on behalf of the Company, as required by the Company CEO or MD, without further remuneration."