TRANSCRIPT OF PROCEEDINGS

Transcription

1 TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND No 780 of 1992 CIVIL JURISDICTION MACKENZIE J THE WORKERS' COMPENSATION BOARD OF QUEENSLAND Plaintiff and DENNIS PETER JURAN First Defendant and TAYLOR ROOFING PTY LTD (IN LIQUIDATION) Second Defendant BRISBANE..DATE 11/02/94 JUDGMENT HIS HONOUR: The formal orders are that: 1. I declare that Dennis Peter Juran was not, in respect of work being done by him at premises situated at 30 Lochaber Street, Dutton Park in the State of Queensland on or about 22 January 1987 a worker as that term is defined in section 3 of the Workers' Compensation Act 1916 in the employ of the second defendant Taylor Roofing Pty Ltd (In Liquidation). 2. I declare that, in respect of any judgment obtained by him in Action No 4148 of 1989 in the Supreme Court of Queensland, Dennis Peter Juran is not

2 ... entitled to indemnity from the Workers' Compensation Board of Queensland in respect of those damages. 3. I order the defendant to pay the plaintiff's costs of and incidental to the action to be taxed. HIS HONOUR: The reserved costs of the application before Mr Justice Thomas on 26 August 1992 shall form part of the costs payable by the defendant to the plaintiff. I publish my reasons IN THE SUPREME COURT OF QUEENSLAND No. 780 of 1992 Brisbane Before Mr Justice Mackenzie [Re: Juran & Ors] BETWEEN: WORKERS' COMPENSATION BOARD OF QUEENSLAND Plaintiff AND: DENNIS PETER JURAN First Defendant AND: TAYLOR ROOFING PTY LTD (IN LIQUIDATION) Second Defendant REASONS FOR JUDGMENT - MACKENZIE J. Judgment delivered 11/02/1994 Counsel: Solicitors: Mr Richard Douglas for Plaintiff Mr P Lane for First Defendant Quinlan Miller & Treston for Plaintiff

3 Bennett Carroll & Gibbons for First Defendant Hearing Dates: 4, 7 February, IN THE SUPREME COURT OF QUEENSLAND No. 780 of 1992 Brisbane Before Mr Justice Mackenzie [Re: Juran & Ors] BETWEEN: WORKERS' COMPENSATION BOARD OF QUEENSLAND Plaintiff AND: DENNIS PETER JURAN First Defendant AND: TAYLOR ROOFING PTY LTD (IN LIQUIDATION) Second Defendant REASONS FOR JUDGMENT - MACKENZIE J. Judgment delivered 11/02/1994 The defendant was on 22 January, 1987 working on the roof of a residence at Dutton Park when he fell to the ground and suffered injuries. His primary task on the day of the incident was to cover an existing roof with Decrabond metal tiles. This involved constructing a wooden framework over the existing roof and fixing the tiles to the frame with nails. The defendant was responsible for supplying the necessary nails, tools of trade and ladders. As a matter of convenience, because of the buying power of Taylor Roofing Pty Ltd which ensured a good price, the nails were purchased from Taylor Roofing Pty Ltd. Taylor Roofing provided the tiles and timber and any other necessary material. The company's employees entered into the contracts for the replacement of roofs with

4 householders and estimated the quantity of necessary materials. On the day of the accident it became apparent while the work was being done that there was an existing bow in the roof and after discussions between the defendant and Mr Taylor, a director of Taylor Roofing Pty Ltd, steps were taken to correct the bow. The defendant commenced an action for damages alleging, inter alia, that a person engaged by Taylor Roofing Pty Ltd had inadequately attached the fascia board which gave way when Mr Juran put his weight upon it. The issue in the present proceedings is whether the defendant is a worker within the meaning of s.3 of the Workers' Compensation Act 1916 as it then stood. As Mr Douglas, for the Board, pointed out if the incident had occurred more than about six months later the defendant would have been clearly excluded by s.3(h) of the definition of worker which specifically excluded members of a partnership. At the time of the accident the defendant was in partnership with his wife. However the amendment in question did not come into operation until 1 July The construction of the Act prior to the amendment is the issue before me. Mr Lane for the defendant submitted that at least for 18 months before the accident, the defendant was a worker within the meaning of s.3. Mr Douglas submitted that the defendant's relationship with Taylor Roofing Pty Ltd was a contract for services and that in any event para.(e) of the definition of worker excluded the defendant and that s.3(2) was of no assistance to him. The relevant provisions in s.3 are the following: Worker - Any person... who has entered into or works under a contract of service or... otherwise with an employer,... : The term includes a person working under a contract or at piecework rates for labour only or substantially for labour only (including any such person

5 who supplies his own tools of trade, being tools designed for use by hand) but does not include-... (e) A person who supplies any material used in the performance of a contract or of his labour at piecework rates;... (2) Where a contract to perform any work... (not being work incidental to a trade or business regularly carried on by the contractor in his own name or under a firm name) is made with a contractor who - (a) (b) Neither sublets the contract nor employs wages-men; or Though employing wages-men, actually performs any part of the work himself, such contractor and also such wages-men so employed shall for the purposes of this Act be deemed to be workers employed by the person who made such contract with such contractor.... The first question is whether there is a contract of service. The parties were in substantial agreement on the applicable principles. The question is one of fact (Ziujs v. Wirth Bros Pty Ltd (1955) 93 CLR 561). A most important factor, but not the only one, in determining the relationship between the parties is the extent to which the person whose status as employee or independent contractor is in issue, is under the direction and control of the other party to the contract with regard to the manner in which he does his work under it (Australian Mutual Provident Society v. Chaplin (1978) 18 ALR 385; Narich Pty Ltd v. Commissioner of Payroll Tax (1983) 50 ALR 417). Mr Douglas also submitted that the terms in which the parties described their relationship is not conclusive as to its true nature. That is self-evident where the parties use terms in the witness box without purporting to have the background to attempt to define the relationship with legal precision. Authorities which are concerned with written

6 clauses describing the relationship (e.g. The Queen v. Foster;Ex Parte The Commonwealth Life (Amalgamated) Assurances Limited (1951) 85 CLR 138; Narich Pty Ltd v. Commissioner of Payroll Tax; Massey v. Crown Life Insurance Co. (1978) 1 WLR 676) simply re-enforce the proposition that it is necessary to consider all of the indicia of the relationship to determine its nature (Stevens v. Brodribb Sawmilling Co Pty Ltd (1985-6) 160 CLR 16) rather than the words in which it is described. I find that Taylor Roofing Pty Ltd operated by using a pool of contractors the size and composition of which varied from time to time to carry out roof tiling and other associated work which had been contracted for between the company and householders. Mr Juran was one of those contractors. It was accepted that he was a good tradesman and a reliable worker. Mr Taylor's aim was to have access to a pool of such persons. Over the years of his association with Taylor Roofing, Mr Juran worked to an increasing extent for it and, unlike the preceding years, in the 18 months or so before the accident devoted the vast majority of his time performing contracts on behalf of the company. The invoices disclose that from July 1985 to July 1986 he performed five jobs for persons other than Taylor Roofing Pty Ltd and from July 1986 until 22 January 1987 when the accident occurred he performed three contracts for other companies. There was a degree of dispute as to whether the defendant was only able to do those jobs because Mr Taylor had given him permission. The most enlightening passage of the evidence is the following: So you do remember now that Mr Taylor told you that; you should go down to Apex Roofing to get this job done?-- Mr Taylor would have said: Apex Roofing have rang me and would you like to go and do that job. You don't remember whether or not he did, do you?-- Okay, I will say, no, then. And you did work for Noobell, as well, did you not?-- Yes.

7 You are not suggesting that Mr Noone, who gave evidence here today, rang Mr Taylor to get his permission to employ you to do that job in August 1986; that's recorded in your invoices?-- He may not have rang Mr Taylor, no, because he was a different tiler. He was a fellow who would ring you directly in order to have the work done?-- Yes. And, again, you didn't get Mr Taylor's permission to do that job for Mr Noone of Noobell in August of 1986?-- No. The work must have been that slow that I didn't have to go into Mr Taylor's office for a few days, so -- Do I understand your evidence to be from your last answer that it was only when the work was very slow at Taylor Roofing that you could do work for other roofing companies and not have to get Mr Taylor's permission first?-- If the work was really slow I could have went somewhere else, yes. And you wouldn't have to get Mr Taylor's permission?-- No, because I wouldn't turn up in the morning every day. I am satisfied that the defendant, for commercial reasons pursued the course of making himself available to perform contracts on behalf of Taylor Roofing Pty Ltd. The availability of other contracts was brought to his attention, on occasions, by Mr Taylor. On one occasion he was directly contacted by the person who wanted work done. It was common ground that the work with other companies occurred at times when work was not immediately available from Taylor Roofing Pty Ltd. I do not accept that his availability to undertake those jobs was dependent upon the consent of Mr Taylor in the same way that it would have been if he was an employee. The situation was that there was mutual benefit in the arrangement between the defendant and Taylor Roofing Pty Ltd. Mr Taylor valued the defendant as a competent and reliable tradesman. The defendant by holding himself available for work with Taylor Roofing Pty Ltd had a steady supply of work. Any acquiescence obtained by the defendant from Mr Taylor was simply a manifestation of the defendant's understandable wish not to jeopardise his relationship with the company by performing work for

8 others when Taylor Roofing Pty Ltd might want him to do a job for it. Other aspects of the relationship were explored in some detail in the evidence. So far as supervision was concerned I am satisfied that except to the extent that Taylor Roofing as the entity entering into the contract with the householder made sure that the work had been done properly, Mr Juran was left to his own devices to carry out his trade. It was not a case where Mr Taylor or other employees of the company purported to direct the defendant how to carry out the trade work. The company's role was to negotiate the contract and the householder, estimate the materials required and supply them. Mr Juran was not required to work particular hours. The only constraint in that respect was the practical constraint that the work had to be done with satisfactory expedition which normally involved working ordinary building trade hours. However that was not something which was imposed upon him by direction from Taylor Roofing Pty Ltd. Each job was invoiced to Taylor Roofing on behalf of the partnership constituted by the defendant and his wife. The only deductions made were the prescribed payments tax. No PAYE deductions or allowances for holiday pay were made. From time to time other people were employed by the partnership constituted by the defendant and his wife. They were paid wages by the partnership. Any jobs which were done for companies other than Taylor Roofing Pty Ltd were invoiced to those companies by the partnership. Taylor Roofing Pty Ltd derived no benefit from these jobs. Mr Douglas also relied on the proportion of expenses to income (over 50 per cent) in the partnership tax returns. He submitted that this was consistent with the existence of an independent business. This proposition derives some support from Australian Mutual Provident Society v. Chaplin. Massey v. Crown Life Insurance Co and Barro Group Pty Ltd v. Fraser (1985) VR 577.

9 Mr Lane submitted that on the whole of the evidence including some matters to which I have not made specific reference the relationship was that of a contract of service. In my view the contract was not a contract of service. It was a contract for services. In those circumstances the primary requirement under the definition of worker that the person has entered into or works under a contract of service has not been made out. While the words or otherwise are words of extension, they do not assist the defendant on the facts of the case. (Ritchie v. The Swan Hill District Hospital (1931) VLR 57; Bailey v. Victorian Soccer Federation (1976) VR 13). Mr Douglas submitted that even if I had found against him on that point the defendant fell within the exclusion contained in paragraph (e) of the definition of worker, that is to say, a person who supplies any material used in the performance of a contract or of his labour at piecework rates. The evidence establishes beyond dispute that the defendant was required to supply and did supply the nails used in the performance of his work. Notwithstanding Mr Lane's dismissive description of the extent of this the expenses involved were not minor. I am satisfied that the exclusion applies with the result that the defendant is not a worker within the meaning of the definition in s.3(1). I should note that there was some evidence, albeit not specific to Mr Juran, that suggested that, occasionally, contractors supplied other materials such as sealant. I am satisfied that, if this was done, it was done as a matter of convenience rather than obligation. It is clear enough that the obligation to supply materials other than nails was the company's. Mr Lane also submitted that the defendant fell within s.3(2) of the Act. The classic statement of the meaning of a provision like s.3(2) is that of Dixon J in Humberstone v. Northern Timber Mills (1949) 79 CLR 389, On the evidence neither of the exclusions in paras. (a) and (b)

10 applies. Such evidence as there is supports the view that even on the occasions when employees were engaged by the partnership, the defendant performed part of the work himself. If it be relevant to the present case (although Mr Lane did not rely on anything but the extended relationship between the defendant and Taylor Roofing Pty Ltd) the defendant did not employ anyone in connection with the job which was being performed when he was injured. The critical question in this case is whether the exclusion with respect to work incidental to the trade or business regularly carried on by the contractor in his own name or under a firm name applies. There is no dispute that the defendant carried on a trade or business under the name of D.P. & G.D. Juran. The limited clientele of the firm does not preclude the defendant's activities from qualifying under that description (Higgins v. Jackson (1976) 11 ALR 441). The issue was whether because, on occasions, the defendant, who was a skilled roof tiler, performed other minor carpentry jobs in connection with the particular job meant that he was performing work that was not incidental to a trade or business carried on by him. The fact that he was, as well as installing a roof on the occasion when the injury occurred, repairing a bow in the roof became the focus of attention in argument. In my view the proper construction of the evidence is that the defendant was carrying on a trade or business of installing Decrabond roofs and any minor building work that might be necessary in connection therewith or, alternatively, was carrying on the trade or business of roof tiling and that the work that was being done on the day in question and which was done, as necessary, on other occasions was incidental to that trade or business. If forced to choose between the two characterisations, I prefer the former. In view of that finding, the defendant is not within s.3(2). It becomes unnecessary, therefore, to consider Mr Douglas' argument that where an exclusion in s.3(1) is established s.3(2) cannot apply. Mr Douglas conceded that to be successful in that argument a finding that Chambers v. Workers' Compensation Board of Queensland (1980) 105 QGIG 4 was wrongly decided would have to be made.

11 The result, having regard to the findings that I have made, is that the defendant was not a worker within the meaning of s.3(1) or s.3(2) of the Workers' Compensation Act Accordingly the plaintiff is entitled to a declaration in that respect. The formal orders are that: 1. I declare that Dennis Peter Juran was not, in respect of work being done by him at premises situated at 30 Lochaber Street, Dutton Park in the State of Queensland on or about 22 January 1987 a worker as that term is defined in s.3 of the Workers' Compensation Act 1916 in the employ of the second defendant Taylor Roofing Pty Ltd (In Liquidation). 2. I declare that, in respect of any judgment obtained by him in Action No 4148 of 1989 in the Supreme Court of Queensland, Dennis Peter Juran is not entitled to indemnity from the Workers' Compensation Board of Queensland in respect of those damages. 3. I order the defendant to pay the plaintiff's costs of and incidental to the action to be taxed.