Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125

Appeal Outcome: Special leave refused with costs by the High Court - 16 November 2007

New South Wales Court of Appeal

CITATION: Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17 May 2007

JUDGMENT DATE: 4 June 2007

JUDGMENT OF: Spigelman CJ at 1; Giles JA at 2; Basten JA at 76

DECISION: (By majority) (1) Refuse leave to amend the notice of appeal to add the proposed ground 6. (2) Appeal dismissed with costs.

CATCHWORDS: Personal injury - injury at processing plant - who was employer - employed by company conducting processing plant - then became trainee under training contract - different company named as employer in training contract - continued with same work - continued to be paid by first company - circumstances in which second company named as employer - not with clear consciousness it was to be the employer - effect of Apprenticeship and Training Act 2001 - if second company was employer, whether Workers Compensation Act 1987 or Workplace Injury Management and Workers Compensation Act 1998 made first company the employer for the purposes of those acts.

Apprenticeship and Traineeship Act 2001 Vocational Education and Training Accreditation Act 1990 LEGISLATION CITED: Vocational Education and Training Act 2005 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998.

Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 Bird v Commonwealth (1988) 165 CLR 1 Carroll v Mijovich (1991) 25 NSWLR 441 Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 Coulton v Holcombe (1986) 162 CLR 1 Ermogenous v Greek Orthodox Community of SA Inc (2001) 209 CLR 95 Hewitt v Benale Pty Ltd (2002) 27 WAR 91 Ingram v Little [1961] 1 QB 31 Klein v Minister for Education [2007] HCA 2 Kotevski v Esselte Australia Pty Ltd [2005] NSWCA 126 Lissenden v CAV Bosch Ltd (1940) AC 412 CASES CITED: National Transport Insurance Ltd v Chalker [2005] NSWCA 62 Ocean Road Motel Pty Ltd v Pacific Acceptance Corporation Ltd (1963) 109 CLR 276 OP Industries Pty Ltd v MMI Workers Compensation (NSW) Ltd (1998) 17 NSWCCR 193 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Pitcher v Langford (1991) 23 NSWLR 142 Rydelar Pty Ltd v Euphoric Pty Ltd [2001] NSWCA 65 State Planning Authority (NSW) v Nash [1974] 1 NSWLR 684 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Taylor v Johnson (1983) 151 CLR 422 Toll (FGCT) Pty Ltd v Alphaparm Pty Ltd (2004) 219 CLR 165 VACC Insurance Ltd v BP Australia Ltd (1999) 47 NSWLR 716 Water Board v Moustakas (1988) 180 CLR 491 Western Sydney Regional Organisation of Councils Group Apprentices v Statrona Pty Ltd (2002) 12 ANZ Ins Cas 61-530