QBE WORKERS COMPENSATION (NSW) LIMITED v SIMARU PTY LIMITED & ANOR [2005] NSWCA 464

QBE WORKERS COMPENSATION (NSW) LIMITED v SIMARU PTY LIMITED & ANOR [2005] NSWCA 464

Mrs Santelli was a deemed worker of Bessemer Sales under Schedule 1 cl 5 because her activities were those of a salesperson of Bessemer products: she promoted products, recorded sales, collected payment and attended to delivery. The 24% margin retained by her was a commission in substance despite the post-GST terminology of distributor, discount or margin, and her separate managerial role generated an overriding commission also sufficient to fall within cl 5. The exception for commission connected with work incidental to an independent trade or business did not apply because she registered a business name at Bessemer's bidding and conducted selling work exclusively for Bessemer rather...

Jurisdiction
Australia
Judgment Date
20 December 2005
Procedural Posture
Insurance Appeal Concerning Indemnity and Deemed Worker Status Under Workers Compensation Legislation / Appeal From the District Court of New South Wales
Outcome
Appeal dismissed with costs.
Legal Topics
["employer's Insurance Policy Indemnity" 'public Liability Insurance Exclusion' 'deemed Worker' 'salespersons Paid by Commission' 'work Incidental to Independent Trade or Business' 'direct Selling Arrangements']
['insurance' 'workers Compensation' 'negligence'] ["employer's Insurance Policy Indemnity" 'public Liability Insurance Exclusion' 'deemed Worker' 'salespersons Paid by Commission' 'work Incidental to Independent Trade or Business' 'direct Selling Arrangements']

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Procedural Posture

Insurance Appeal Concerning Indemnity and Deemed Worker Status Under Workers Compensation Legislation / Appeal From the District Court of New South Wales

Legal Issues

  1. 1 ['Whether Mrs Rita Santelli was a deemed worker of Bessemer Sales under Schedule 1 cl 5 of the Workplace Injury Management and Workers Compensation Act 1998.' 'Whether the 24% mark-up retained by Mrs Santelli after 1 July 2000 was properly characterised as a commission.' 'Whether any commission was received for or in connection with work incidental to a trade or business regularly carried on by Mrs Santelli.' 'Whether cl 2 of Schedule 1 applied because Mrs Santelli was performing work under a contract exceeding $10 in value.']

Ratio Decidendi

Mrs Santelli was a deemed worker of Bessemer Sales under Schedule 1 cl 5 because her activities were those of a salesperson of Bessemer products: she promoted products, recorded sales, collected payment and attended to delivery. The 24% margin retained by her was a commission in substance despite the post-GST terminology of distributor, discount or margin, and her separate managerial role generated an overriding commission also sufficient to fall within cl 5. The exception for commission connected with work incidental to an independent trade or business did not apply because she registered a business name at Bessemer's bidding and conducted selling work exclusively for Bessemer rather...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']