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[2002] NSWCA 207
Court of Appeal (NSW)
2002-07-31
Meagher JA, Burke AJ, Per Meagher JA, Burke J
Original judgment source is linked above.
CITATION : Zaronias v Papaiani [2002] NSWCA 207 FILE NUMBER(S) : CA 40442 of 2001 HEARING DATE(S) : 19/06/02 JUDGMENT DATE : 31 July 2002
Christine Louise Zaronias PARTIES : v Michael David Papaiani & JUDGMENT OF : Meagher JA at 1; Foster AJA at 11; Ipp AJA at 12
LOWER COURT JURISDICTION : Compensation Court LOWER COURT 1260 of 2000 FILE NUMBER(S) : LOWER COURT Burke AJ JUDICIAL OFFICER :
COUNSEL : Appellant: Mr D T Kennedy SC & Miss E E Welsh Respondent 2: Mr A T Candy Appellant: Taylor & Scott Respondent 1: Unknown SOLICITORS : Respondent 2 & 4: William Clinton Respondent 3: Stephen Bottrill Respondent 5 & 6: Taylor & Scott CATCHWORDS : Whether the deceased was entitled to an award under the Workers' Compensation Act - whether the deceased could be classified as an employee or volunteer - whether the trial judge's discretion miscarried for not allowing the case to be re-opened - appeal dismissed with costs. LEGISLATION CITED : Workers' Compensation Act 1987 DECISION : Appeal dismissed with costs.
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40442 of 2001
MEAGHER JA FOSTER AJA IPP AJA
Wednesday, 31 July 2002 CHRISTINE LOUISE ZARONIAS v MICHAEL DAVID PAPAIANI
FACTS The appellant, Ms Zaronias, was the widow of the deceased, who was killed when a wall collapsed on him. At the time of his death, the deceased was in receipt of worker's compensation payments which were made to him voluntarily following an accident which occurred in the course of his employment. These payments were also supplemented by occasional casual work for the first respondent, Mr Papaiani, and the third respondent, who were engaged in the business of demolition and tidying work on their premises. The arrangement between the deceased and the respondents, was that the latter would advise the former when any work was available at the demolition site.
The trial judge held that there was no contract of service between Mr Zaronias (the deceased) and the first respondent, and therefore, was not entitled to an award under the Workers' Compensation Act since he was a volunteer and not an employee.
On appeal, it was contended that (i) the trial judge failed to give adequate reasons for his decision, (ii) the trial judge wrongly concluded that the deceased was not a "worker" and (iii) the trial judge's discretion miscarried when he declined to permit the appellant to re-open her case.
HELD: Per Meagher JA (Foster AJA & Ipp AJA agreeing) (i) Once a judge has accepted the evidence, the necessity for formulating reasons has passed, unless the evidence is absurd or self-contradictory. A judge is not under any obligation to sift through all the evidence before him and explain at length why he rejects each item which is conceivably inconsistent with his decision. (ii) Even if one conceded that the question of whether the deceased was a worker was a mixed question of fact and law, once the trial judge made his primary findings of fact, the question of "employee or volunteer" could only be answered one way, i.e. a volunteer. (iii) The trial judge's discretion did not miscarry when he declined to permit the appellant to re-open her case. The point of any re-opening was to adduce further evidence, but that evidence had always been available, both before and during the trial. Further, it was not shown what error of law the trial judge made in the exercise of his discretion.
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40442 of 2001
MEAGHER JA FOSTER AJA IPP AJA
Wednesday, 31 July 2002 CHRISTINE LOUISE ZARONIAS v MICHAEL DAVID PAPAIANI Judgment 1 MEAGHER JA: This is an appeal from a judgment and award of Burke J, who entered an award in favour of the respondent employer. The applicant was the widow of the deceased, who was killed on 3 September 1998 when a wall at the rear of premises at 730 Bourke Street Redfern collapsed on him. 2 At the time of his death, Mr Zaronias was in receipt of worker's compensation payments which were made to him voluntarily following an accident on 3 August 1992 when, in the course of his employment, he was injured whilst working at the Clock Hotel, Surry Hills. In addition to those payments, he had, for about twelve months, been supplementing his income with occasional casual work. 3 It would appear that the first respondent, Mr Papaiani, and the third respondent, Mr Hamilton, were together engaged on some demolition and tidying work on the premises at 720 Bourke Street. The deceased worked at that site intermittently about 6 or 7 days, before 31 August 1998. For each day he worked he was paid $100. He worked there also on 2 September. The arrangement between the deceased and Mr Papaiani was that the latter would advise the former when any work was available at the site for him. 4 On 2 September 1998, the deceased's last day of work, Mr Papaiani, the worker, a Mr Lazarus and a few others dined at a local Chinese restaurant. During that dinner Mr Papaiani advised the deceased not to come the following day. Mr Papaiani gave evidence to that effect. So did Mr Lazarus. His Honour believed them. The deceased said he might turn up anyway. 5 And turn up he did. At about 11am on the following day. In his good clothes, having just taken his children to school and having visited his bank. Mr Papaiani declared an early lunch, as everybody was waiting for the arrival of the pest exterminators. All concerned had a somewhat leisurely lunch, and then the various actors dispersed about sundry tasks. Mr Papaiani devoted himself to tidying up a trench, which had filled with spillage. As he was doing so, on his evidence, he looked up and noticed the deceased, this time apparelled in his work clothes, doing similar work in the same trench. According to him, he said to the deceased: "You're just not needed." However, the deceased stayed there, and 10 or 15 minutes later the wall collapsed. There was no evidence that Mr Papaiani went further, and said to the deceased: "Go home, we don't want you here" or words to that effect. 6 Not surprisingly, on the facts I have endeavoured to set out, his Honour held that there was no contract of service between Mr Zaronias and Mr Papaiani (or Mr Hamilton, or both of them), and that therefore Mr Zaronias was not entitled to an award under the Workers' Compensation Act, that he was a volunteer, not an employee. 7 Mr Kennedy QC, learned senior counsel for the applicant, in what looked like at first blush an attempt to re-argue the facts of the case, made two submissions on this material. One was that his Honour had failed to give adequate reasons for his decision. In my view, this submission should be rejected. I have set out the substance of Mr Papaiani's evidence: his Honour accepted it. There does not need to be any explanation of why he did. Once a judge says "This is the evidence I accept", the necessity for formulating reasons has passed - unless, perhaps, the evidence is absurd or self-contradictory. A judge is certainly not under any obligation to sift through all the evidence before him and explain at length why he rejects each item which is conceivably inconsistent with his decision. The present case furnishes a good example of this. Mr Papaiani said that 10 or 15 minutes elapsed between his saying to Mr Zaronias "You're just not needed" and the collapse of the wall. There was some evidence, Mr Kennedy said, which might tend to support that the time was 25 or 30 minutes. In my view, if a judge accepts Mr Papaiani's estimate of 10 -15 minutes, he is under no obligation - at least, generally speaking, - to explain why he does not accept the 25 - 30 minute estimate, particularly in circumstances where it simply does not matter. 8 Mr Kennedy then argued that on the evidence his Honour wrongly concluded that the deceased was not a "worker". Even if one concedes that the question of whether the deceased was a worker was a mixed question of fact and law, once his Honour made his primary findings of fact by believing what Mr Papaiani said, the question "employee or volunteer" could only be answered one way, i.e. volunteer. 9 Finally, Mr Kennedy submitted that his Honour's discretion miscarried when he declined to permit Mrs Zaronias to re-open her case. There are three answers to this submission. The first is that the point of any re-opening was to adduce further evidence, but that evidence had always been available, both before the trial and during the trial. The second is that it was not shown what error of law his Honour had made in the exercise of his discretion. And the third is that the only point of the new evidence was to found a case that by acquiescing in Mr Zaronias' continuing to work after he had declined the invitation to leave, a new contract of employment arose. But this case had never been argued until the hearing of the appeal. Accordingly, that submission must also fail. 10 The appeal should be dismissed with costs. 11 FOSTER AJA: I agree with Meagher JA. 12 IPP AJA: I agree with Meagher JA.
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Zaronias
Papaiani