Phung v Advanced Arbor Services Pty Ltd [2010] NSWCA 215

New South Wales Court of Appeal

CITATION: Phung v Advanced Arbor Services Pty Ltd [2010] NSWCA 215

HEARING DATE(S): 17 August 2010

JUDGMENT DATE: 30 August 2010

JUDGMENT OF: Beazley JA at 1; Basten JA at 45; Handley AJA at 46

DECISION: The appeal is dismissed with costs.

CATCHWORDS: EMPLOYMENT – trainees – deemed workers compensation insurance for trainees – Workers Compensation Act 1987, s 158(3) – identity of employer of trainee under Australian Traineeship Scheme - CONTRACT – formation – oral – contract for performance of service for benefit of third party - CONTRACT – mistake – whether entitled to restitution for payment made under a mistake of fact - INSURANCE – deemed statutory insurer under Workers Compensation Act, s 158(3) – subrogation – whether statutory insurer entitled to be subrogated to such rights as the employer had to the recovery of moneys paid under a mistake of fact for breach of contract

Civil Procedure Act 2005 Fair Trading Act 1987 Government Insurance Act 1927 Government Insurance Office (Privatisation) Act 1991 LEGISLATION CITED: NSW Self Insurance Corporation Act 2004 Trade Practices Act 1974 (Cth) Workers Compensation Act 1987 Workers Compensation (General) Regulation 1995 Workers Compensation Legislation Amendment (Trainees) Act 2003

CATEGORY: Principal judgment

Banque Financiere de la Cite v Parc (Battersea) Limited [1999] 1 AC 211 CASES CITED: Kelly v Solari (1841) 9 M & W 54 Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 Scottish Equitable Plc v Derby [2000] 3 All ER 793