Ormwave Pty Limited & Anor v Smith [2007] NSWCA 210

New South Wales Court of Appeal

CITATION: Ormwave Pty Limited & Anor v Smith [2007] NSWCA 210

HEARING DATE(S): 25 July 2007

JUDGMENT DATE: 22 August 2007

JUDGMENT OF: Beazley JA at 1; Santow JA at 95; Ipp JA at 96

DECISION: Appeal dismissed, the appellants to pay the respondent's costs.

CATCHWORDS: APPEAL – appeal confined to a point of law – whether there was any evidence of a particular fact is a question of law - whether no evidence to support decision-maker's finding that the parties had entered into a contract in New South Wales - CONTRACT – offer and acceptance – in determining existence of a contract it is not necessary to identify precise offer or precise acceptance nor a precise time at which an offer or acceptance could be identified – whether decision-maker erred in finding offer made by appellants and accepted by respondent in New South Wales - CONTRACT – terms of contract – contract may be entered into notwithstanding that all terms have not been agreed to provided there has been a manifestation of mutual assent – whether decision-maker erred in finding contract formed between parties in New South Wales - WORKERS COMPENSATION – Workers Compensation Act 1987 (NSW) s 13 – jurisdiction of Workers Compensation Commission to hear application – whether contract of employment formed in New South Wales so as to allow Commission to determine application for compensation

Supreme Court Act 1970 (NSW) s 101 LEGISLATION CITED: Workers Compensation Act 1987 (NSW) s 13 Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 352, 353

Anson's Law of Contract (27th ed, 1998) Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Brambles Holdings Limited v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Brogden v Metropolitan Railway Co (1877) 2 App Cas 666 Brooker v Friend & Brooker Pty Ltd & Anor [2006] NSWCA 385 Bruce v Cole (1998) 45 NSWLR 163 Frank R Wolstenhome Pty Limited v Davis (Court of Appeal, 28 July 1995, unreported) Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158 Helmers v Coppins (1961) 106 CLR 156; [1961] HCA 88 Industrial Rollformers Pty Ltd & Anor v Ingersoll-Rand (Australia) Ltd [2001] NSWCA 111 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 CASES CITED: MacRobertson Miller Airline Services v Commissioner of State Taxation (Western Australia) (1975) 133 CLR 125; [1975] HCA 55 Magill v Magill (2006) 226 CLR 551; [2006] HCA 51 McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 Meates v Attorney-General [1983] NZLR 308 Noahs Limited (t/as The Lakeside Hotel) and Anor v Glover (Court of Appeal, 20 September 1995, unreported) Roads and Traffic Authority of New South Wales v Mosca (2006) 146 LGERA 335; [2006] NSWCA 159 Sinclair v Maryborough Mining Warden (1975) 132 CLR 473; [1975] HCA 17 Skiwing Pty Ltd v Trust Company of Australia (Trading as Stockland Property Management) [2006] NSWCA 276 Starr v Douglas (1994) 35 NSWLR 133 The Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126 Thompson v White & Ors (2007) NSW ConvR 56-171; [2006] NSWCA 350 Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32