Vlado Adonovski v Park Tec Engineering Pty Ltd and Anor [2009] NSWCA 305

Reported Decision: 191 IR 250

New South Wales Court of Appeal

CITATION: Vlado Adonovski v Park Tec Engineering Pty Ltd and Anor [2009] NSWCA 305

HEARING DATE(S): 9 September 2009

JUDGMENT DATE: 27 October 2009

JUDGMENT OF: Tobias JA at 1; Young JA at 2; Sackville AJA at 3

1. To the extent necessary, grant the appellant leave to appeal against Orders (c) and (d) made by Johnstone DCJ on 30 July 2008, dismissing the Appellant's Motion and ordering the appellant to pay the respondents' costs of the Appellant's Motion. 2. Appeal allowed in part. 3. Set aside Orders (a) and (b) made by Johnstone DCJ on 30 July 2008 striking out the appellant's Statement of Claim and dismissing the proceedings. 4. Pursuant to UCPR r 28.2, the following question be determined separately from any other question in the proceedings:"On 11 March 2004, the date the appellant alleges that he was injured, was he employed by Park-Tec or by Barbeques Galore?" 5. Answer the separate question as follows: "The appellant was employed by Barbeques Galore and not by Park-Tec." DECISION: 6. Set aside Order (d) made by Johnstone DCJ on 30 July 2008, insofar as it orders the appellant to pay the respondents' costs of the substantive proceedings. 7. In lieu of Order (d) made by Johnstone DCJ, insofar as it is set aside by Order 6 above, Park-Tec to pay the appellant's costs in relation to Park-Tec's amended Notice of Motion filed on 10 March 2008 (including the costs of determining the separate question identified in the judgment of Johnstone DCJ). 8. Remit the proceedings to the District Court for determination consistently with these reasons. 9. Appeal otherwise dismissed. 10. The respondents to pay the appellant's costs of the appeal, insofar as the appeal relates to the determination of Park-Tec's ANM and the orders striking out the appellant's statement of claim and dismissing the proceedings. 11. The appellant to pay the respondents' costs of the appeal (including any application for leave to appeal) insofar as the appeal relates to the orders dismissing the Appellant's Motion. 12. The respondents, if otherwise qualified, should have a certificate under the Suitors' Fund Act 1957 (NSW).