Australian Institute of Management v Rossi
[2004] WASCA 302
•16 DECEMBER 2004
AUSTRALIAN INSTITUTE OF MANAGEMENT -v- ROSSI [2004] WASCA 302
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 302 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:103/2003 | 10 JUNE 2004 | |
| Coram: | MALCOLM CJ MCLURE J LE MIERE J | 16/12/04 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed, Matter remitted to the Compensation Magistrate | ||
| A | |||
| PDF Version |
| Parties: | AUSTRALIAN INSTITUTE OF MANAGEMENT ALLAN ROSSI |
Catchwords: | Appeal from decision of Compensation Magistrate Whether respondent a "worker" for the purposes of the Workers Compensation and Rehabilitation Act 1981 "Worker" Contract for services Whether respondent's remuneration was in substance for personal manual labour or services Determining whether remuneration is in substance for personal manual labour or services is not an exercise of characterisation Three stage test Whether remuneration which is a return for something other than manual labour or services is comparatively so insignificant that in reality the total remuneration is a return for manual labour or services Compensation Magistrate erred in applying test |
Legislation: | Workers' Compensation and Rehabilitation Act 1981 (WA), s 18 |
Case References: | Charleston v Smith [1999] WASCA 261 Garrett v Nicholson (1999) 21 WAR 226 Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 Mount Lawley v Western Australian Planning Commission [2004] WASCA 149 Summit Homes v Lucev (1996) 16 WAR 566 Duffy v Notch Pty Ltd t/a Foxline Express Network, unreported; Compensation Magistrate (CM19/96); 10 May 1996 Galipo v Messina Building Co Pty Ltd, unreported; Compensation Magistrate (CM71/99); 21 June 2000 Lloyd v Faraone [1989] WAR 154 Pallot & Ors v Harrison, unreported; SCt of WA; Library No 950261; 12 May 1995 Pettitt v Dunkley [1971] 1 NSWLR 367 Scope Investigation Services Pty Ltd v Kelly, unreported; Compensation Magistrate (CM52/00); 10 July 2000 Tolchard v Mansard Homes, unreported; SCt of WA; Library No 4522; 26 May 1982 Water Board v Moustakas (1988) 180 CLR 491 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : AUSTRALIAN INSTITUTE OF MANAGEMENT -v- ROSSI [2004] WASCA 302 CORAM : MALCOLM CJ
- MCLURE J
LE MIERE J
- Appellant
AND
ALLAN ROSSI
Respondent
ON APPEAL FROM:
For File No : FUL 103 of 2003
Jurisdiction : COMPENSATION MAGISTRATE'S COURT
Coram : J R PACKINGTON CM
Citation : ALLAN ROSSI v AUSTRALIAN INSTITUTE OF MANAGEMENT
File No : CM 222 of 2001
(Page 2)
Catchwords:
Appeal from decision of Compensation Magistrate - Whether respondent a "worker" for the purposes of the Workers' Compensation and Rehabilitation Act 1981 - "Worker" - Contract for services - Whether respondent's remuneration was in substance for personal manual labour or services - Determining whether remuneration is in substance for personal manual labour or services is not an exercise of characterisation - Three stage test - Whether remuneration which is a return for something other than manual labour or services is comparatively so insignificant that in reality the total remuneration is a return for manual labour or services - Compensation Magistrate erred in applying test
Legislation:
Workers' Compensation and Rehabilitation Act 1981 (WA), s 18
Result:
Appeal allowed
Matter remitted to the Compensation Magistrate
Category: A
Representation:
Counsel:
Appellant : Mr C Pruiti
Respondent : Mr R R Cywicki
Solicitors:
Appellant : Basile Hawkins
Respondent : E N Stamatiou & Co
Case(s) referred to in judgment(s):
Charleston v Smith [1999] WASCA 261
Garrett v Nicholson (1999) 21 WAR 226
Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210
Mount Lawley v Western Australian Planning Commission [2004] WASCA 149
(Page 3)
Summit Homes v Lucev (1996) 16 WAR 566
Case(s) also cited:
Duffy v Notch Pty Ltd t/a Foxline Express Network, unreported; Compensation Magistrate (CM19/96); 10 May 1996
Galipo v Messina Building Co Pty Ltd, unreported; Compensation Magistrate (CM71/99); 21 June 2000
Lloyd v Faraone [1989] WAR 154
Pallot & Ors v Harrison, unreported; SCt of WA; Library No 950261; 12 May 1995
Pettitt v Dunkley [1971] 1 NSWLR 367
Scope Investigation Services Pty Ltd v Kelly, unreported; Compensation Magistrate (CM52/00); 10 July 2000
Tolchard v Mansard Homes, unreported; SCt of WA; Library No 4522; 26 May 1982
Water Board v Moustakas (1988) 180 CLR 491
(Page 4)
1 MALCOLM CJ: In my opinion, this appeal should be allowed on the basis that grounds 1 and 5 have been made out and the matter remitted to a different Compensation Magistrate to determine the appeal from the Review Officer. I have reached this conclusion for the reasons to be published by McLure J. I also agree with McLure and Le Miere JJ that none of the other grounds of appeal have been made out.
2 MCLURE J: I have had the advantage of reading in draft form the judgment of Le Miere J. I agree with the orders he proposes for the reasons I now give.
3 The respondent suffered an injury in the course of providing gardening services to the appellant. His eligibility for workers' compensation under the Workers' Compensation and Rehabilitation Act 1981 ("the Act") depends on whether he was, at the material time, a "worker" within the meaning of par (b) of the extended definition of that word in s 5 of the Act. A review officer concluded that he was not a worker. The respondent appealed to the Compensation Magistrate from the decision of the Review Officer. The appeal was successful. The Compensation Magistrate concluded that the respondent was a worker within the extended definition and ordered the appellant to make weekly payments of compensation to the respondent. The appellant appeals to this Court from the decision of the Compensation Magistrate.
4 Section 5 of the Act provides that the term "worker" includes:
"(b) any person engaged by another person to work for the purpose of the other person's trade or business under a contract with him for service, the remuneration by whatever means of the person so working being in substance for his personal manual labour or services …".
5 There are four grounds of appeal, one of which (ground 3) was abandoned. The grounds of appeal concern the test for determining whether the respondent's remuneration was in substance for his manual labour or services and whether certain payments he received constituted "remuneration by whatever means".
Background
6 The respondent provided gardening services to the appellant pursuant to a contract, the terms of which (or some of them) are evidenced in a letter dated 29 March 2000 from the appellant to the respondent. The letter materially provides:
(Page 5)
- "[The respondent] will provide [the appellant] with gardening services at a fixed rate of $28.00 per hour. [The respondent] will invoice [the appellant] fortnightly based on hours worked. All invoices must be approved by the Manager Finance & Administration prior to payment. Reimbursement for gardening supplies will be paid at cost and should be accompanied by appropriate invoices and receipts, where possible."
7 In December 2002 the respondent injured his shoulders while carrying out gardening services for the appellant. At that time, the respondent had been providing gardening services to the appellant for about 15 years.
8 The Review Officer found that the respondent provided gardening service to the appellant pursuant to a contract for services. That is, the respondent was an independent contractor.
9 The Review Officer was not required to resolve any relevant conflict of evidence. The appellant provided a ride-on lawnmower and a blower/vacuum cleaner for the use of the respondent in the provision of gardening services. The respondent supplied other equipment which he confirmed was required by him to complete the contractual work. In particular, the respondent agreed that all the equipment identified in a depreciation schedule in his income tax return for the year ended June 2000 was equipment he used in the performance of his contractual obligations to the appellant. The equipment included lawnmowers, edgers, drills, ladders, saws, a station wagon and a trailer.
10 The respondent also purchased various items, including plants, fertilisers and herbicides, to ensure the gardens were properly maintained and when he did so, he submitted an invoice confirming the purchased materials for which he was reimbursed. The respondent charged an additional 10 per cent to the cost of the materials for the "time and effort in purchasing and transporting" them. In any 12-month period, 80 per cent of the respondent's gross income was generated by the work he undertook for the appellant.
11 The Review Officer found that the respondent was not paid the hourly rate of $28 to provide personal manual labour and service alone. In making that finding, he relied on the respondent's evidence that he was required to provide the equipment to which I have referred in order to carry out the contractual work and that the respondent did not use his motor vehicle and trailer simply to transport himself and his equipment to
(Page 6)
- the workplace, but rather used the vehicle and trailer to pick up, collect and deliver various materials for the appellant and when he did so, charged the 10 per cent loading.
12 The Review Officer then addressed the question of the extent of the costs incurred by the respondent in performing the contractual work. He referred to the respondent's evidence that 80 per cent of his gross income for any 12-month period was generated by the work he undertook for the appellant and continued that although the costs could not be identified with any certainty, "there was nothing to suggest [the respondent's] operating costs in his contracts with other companies in question were disproportionate to the costs he incurred in his contract with [the appellant]". These findings were not challenged.
13 The Review Officer then concluded:
"On the balance of probabilities I must conclude the respondent was not paid 'in substance' for his personal manual labour and services alone. [The respondent] was required to provide a considerable amount of mechanised equipment, ranging from a motor vehicle, lawn mowers, power tools, etc, as well as a trailer to transport not only his equipment but also soils and other materials to the [appellant's] worksite. Without this equipment he could not have done his job and this equipment had to be serviced, repaired and costs outlaid for fuel, oils etc."
The Decision of the Compensation Magistrate
14 The Compensation Magistrate concluded that the Review Officer reached his decision solely on the ground that the respondent carried with him an array of mechanised equipment to assist him with his work and that he had wrongly regarded the decision of the High Court in Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 as authority for the proposition that any contract which requires the provision of some power equipment cannot by definition be one under which remuneration is in substance for personal manual labour or services. That may not be a fair reading of the Review Officer's reasons and analysis. However, that is not raised by the grounds of appeal and I say nothing further on the matter.
15 Having found the Review Officer had erred in law, the Compensation Magistrate proceeded to determine whether the respondent's remuneration was in substance a return for his manual labour and services. This brings me to the first ground of appeal.
(Page 7)
Ground of Appeal 1
16 The appellant contends the Compensation Magistrate erred in law in misinterpreting and misapplying the principles for determining whether a worker's remuneration was in substance for his manual labour or services. In particular, the appellant contends the Compensation Magistrate "failed to properly take into account the affect [sic] of the various items of equipment and tools, supplied by the Respondent in his performance of gardening services for the Appellant". It was said the Compensation Magistrate followed the approach of Windeyer J who was in dissent in Marshall.
17 Before going further it is necessary to consider that case and another relevant case on the subject, Summit Homes v Lucev (1996) 16 WAR 566. In Marshall the contractor, an experienced timber faller, entered into an oral contract with the respondent company pursuant to which the contractor was to fell, trim and haul specific logs to the respondent's sawmill. The contractor was required to deliver approximately 50 loads weekly for which he was to be paid at the rate of ₤3 per load. He was also obliged to supply his own falling equipment and a truck with a power winch for hauling and to employ a "swamper" at his own expense. The contractor was killed and his widow claimed compensation under the Act as it stood at the relevant time.
18 The Workers' Compensation Board stated a case to the Full Court of the Supreme Court of Western Australia on the question whether the deceased was working under a contract of service or was a worker by virtue of the extended definition. The Full Court decided that the contract was a contract for service and the extended definition did not apply. By a majority, the High Court (Kitto, Taylor, Menzies and Owen JJ) held that the payments made to the deceased were not in substance a return for manual labour and that he did not fall within the extended definition of "worker". The majority said:
"The words 'in substance' do not mean, as the Board appears to have thought, 'to any substantial extent'. Their function is to enlarge the description which the words immediately following provide, so that the definition may apply not only where the remuneration is a return for manual labour bestowed by a person upon the work in which he is engaged and for nothing else, but also where, although the remuneration is a return for something else also, the something else is comparatively so
(Page 8)
- insignificant that in reality, or as one might say to all intents and purposes, it is a return for manual labour so bestowed."
19 As to the case at hand, the majority concluded:
"A contract, which by its terms requires not only the labour of the contracting party but his employment of other labour and his provision of power equipment to do the job and which provides for payment according to the results of the combined activity, cannot in law be regarded as a contract which provides for remuneration 'of the person so working' as 'in substance a return for his manual labour'. The ₤3 per load here could not be so described."
20 Windeyer J dissented. The approach of Windeyer J differs from that taken in the Supreme Court and by the majority in the High Court. He focused on the substance of the contractual task which he characterised as being to fell and cart timber. An appreciation of his approach and how it differed from the majority (and the Supreme Court) emerges from the following lengthy extract from his judgment (at 223):
"The answer that the Supreme Court gave was that his remuneration was a return for all that he provided, his equipment, the work of the swamper, his own labour. From the point of view of economic theory and accounting that unquestionably is so. Then, by dissecting the total sum received by the deceased under his contract, it can be shown that after deducting the swamper's wages and the cost of maintaining the equipment less than half that total sum remains as the net income of the deceased; and that amount it is then said is the most that can be considered as his return for manual labour bestowed by him upon the work. I see the force of this. But in my opinion the proportion the net income of the working contractor bears to the total amount of his contractual remuneration is not the proper determinant of whether or not that remuneration was in substance a return for his own work. … The question appears to me to be whether in substance the contractor earned his pay for his work as a tree feller and carrier of timber. The amount he was paid for his services reflected no doubt, the cost to him of equipping himself with the necessary plant and assistance and getting them and himself to the job. But, as I see it, what he was to do was to fell and cart timber, manual labour. The Board could I think consider that his
(Page 9)
- remuneration was, in substance, for doing just that, not for providing a truck and power saw, but for using them."
21 In Summit Homes v Lucev the respondent contractor entered into a contract to provide bricklaying services to the appellant at a property in Ocean Reef. The respondent was required to supply all tools, plant and equipment necessary to perform the bricklaying services. There appears to be no reference in the Court's reasons to the nature or extent of the contractual consideration. A review officer assessed what the respondent was being remunerated for by reference to particular items that the respondent deducted from his income in his annual taxation return. He concluded that the relevant expenses amounted to about 8 per cent of the respondent's income and concluded that the payment was comparatively so insignificant that for all intents and purposes the remuneration was in substance for the respondent's personal manual labour. On appeal to the Compensation Magistrate it was contended that the Review Officer should have taken into account all items claimed as deductions by the respondent in his taxation return. However, the Compensation Magistrate took a different approach; he did not attempt to assess the matters for which the respondent was being remunerated by reference to the items which he deducted from his taxation returns. The Compensation Magistrate referred to the fact that the respondent provided minimal tools (in the form of trowels, lines, cement mixers); used his utility and trailer for bringing tools and equipment to the worksite and was not in bricklaying; and did not engage subcontractors or employees. Taking a broad view of the matter, the Compensation Magistrate determined that the remuneration received by the respondent from the appellant was in substance for the respondent's personal manual labour.
22 Ipp J, with whom Kennedy and Rowland JJ agreed, gave the leading judgment. He identified a three-step process for the determination of the matter. The first question is whether the person alleged to be a worker is being remunerated for personal manual labour or services alone. If the answer to that question is in the negative, findings have to be made as to the extent to which the person concerned is being remunerated for personal manual labour or services, and the extent to which he or she is remunerated for matters which cannot be so classified. These two issues having been determined, the final step is to make a judgment as to whether the remuneration, overall, is "in substance" for the personal manual labour or services provided.
23 Ipp J then turned his attention to the means of proving whether an independent contractor fell within the extended definition of worker. He
(Page 10)
- was critical of the approach taken by the Review Officer who, as I said, relied upon the annual expenses of the contractor as shown in his taxation returns. However, the criticism has to be seen in context. There was little evidence of and no findings made by the Review Officer as to the actual equipment used by the respondent for the particular job and there was no evidence of any correlation or connection between the remuneration for that job and the expenses deducted from his annual income. As Ipp J noted, the respondent had provided bricklaying services to an indeterminate number of employees over the financial year; the expenses represented by the deductions might be incurred erratically over that period and more may be incurred for one job than another; and in that context, the items claimed as deductions by the respondent in his taxation return were, without more, irrelevant to the determination of the issue of whether the remuneration received by the respondent was in substance for his personal manual labour or services. The Judge's comments and observations relating to annual costs and expenses cannot properly be described as stating any legal principle, general or otherwise.
24 The relevance of, and weight to be given to, a matter may vary according to the broader evidential context in which it is adduced. For example, if it is open on the evidence to find, whether by direct evidence or inference, that the amount an independent contractor is paid for his contractual services includes (in whole or in part) the cost to him of equipping himself for the contractual task, then the first question will be answered in the affirmative. The extent to which the costs incurred in performing the contractual task in question are reflected in the remuneration will then be relevant to determining the extent to which he is being remunerated for matters other than his personal manual labour or services.
25 I can now return to the approach taken in this case by the Compensation Magistrate. The Compensation Magistrate concluded that the relevant legal principles could be extracted from Marshall and Summit Homes and included the proposition that "expenses incurred by the person concerned and items claimed as deductions in the person's taxation returns are likely to have little bearing on the matter; a broad view may be taken of the evidence …". For the reasons I have given, the statements made by the Full Court in Summit Homes relating to costs and expenses are not statements of legal principle and do not support the unqualified proposition formulated by the Compensation Magistrate.
26 Further, his view as to the marginal relevance of the costs incurred in performing the contractual services casts light on the nature of, and reason
(Page 11)
- for, the approach taken by the Compensation Magistrate. Following his statement that the Review Officer had concluded that the requirement for the respondent to provide mechanised equipment prevented a conclusion that the remuneration was in substance for personal manual labour or services, the Compensation Magistrate said:
"13 … I have difficulty with the proposition that the fact that the [respondent] has chosen to take advantage of modern technology to assist him with his work has changed the nature of that work. It seems to me that the essential question is still: what is it that the appellant was being remunerated for? And the answer to that question, it seems to me, must be that he was being remunerated for gardening. I have no doubt that the [appellant] could not have cared less what tools were being used by the [respondent], as long as he achieved a result which was in the [appellant's] view commensurate with the $28.00 per hour that the [appellant] had been happy to pay him over a long period of time."
"14 … Like the bricklayer, the [respondent] had to make his way to the workplace. Like the bricklayer, he needed a vehicle (and possibly a trailer) suitable for the transportation of the tools of his trade. As with the bricklayer, the [respondent's] mode of movement to and from his workplace could not in my view be regarded as something for which he was being remunerated. Unlike the bricklayer, the [respondent] from time to time purchased items for use in the provision of gardening services and transported them to the workplace. He was reimbursed by the [appellant] for the cost of those purchases. That reimbursement was not remuneration. For his delivery (as opposed to gardening) services, the [respondent], as I understand the review officer's findings, placed a ten per cent surcharge on the amount of his reimbursement. Assuming that the period accepted by way of example by the review officer is truly representative, then it seems to me that the ten per cent
(Page 12)
- surcharge for that period ($242.87) is by comparison with the amount invoiced for gardening services for the same period ($22,998.50) so insignificant that … it can be, at least in its own right, disregarded. I say in its own right, because the review officer came to the conclusion that the fuelling and maintaining of his array of gardening equipment was something for which the appellant was being remunerated. If the review officer's approach were correct, then one would have to add the surcharge to the cost of fuel and maintenance (and, I dare say, some amount for depreciation) and compare the total of those amounts with the respondent's total remuneration. As I have indicated, however, that is not in my view the correct approach in this case."
28 Then, taking "a broad view of what it is that the [respondent] was remunerated for", the Compensation Magistrate concluded that his remuneration should have been characterised as being in substance a return for his manual labour or services.
29 The approach taken by the Compensation Magistrate is the same as, or substantially similar to, that taken by Windeyer J in Marshall. He characterises the substance of the remuneration of $28 per hour as being for the provision of gardening services (being manual labour and services) and that being so, it was irrelevant whether or not the hourly rate reflected the cost to the respondent of equipping himself and, if so, the extent thereof. In particular, I infer from his (erroneous) statement of general legal principle relating to costs and expenses that the Compensation Magistrate concluded, without analysis, that they were irrelevant.
30 Finally, I do not understand the basis for the Compensation Magistrate's observation that the appellant could not have cared less what tools were being used by the respondent. There is an obvious correlation between having the necessary tools for the task when the contractor is being remunerated at an hourly rate rather than by results or productivity.
31 The characterisation approach taken by the Compensation Magistrate is inconsistent with that taken by the majority of the High Court in Marshall. Summit Homes is not inconsistent with the majority view in Marshall. In particular, Summit Homes is not authority for the characterisation approach adopted by Windeyer J or for the proposition that, if it is open to find that the remuneration in fact incorporates a component to cover the non-personal costs of providing the contractual
(Page 13)
- services, the fact and extent of the costs are irrelevant. I would uphold ground of appeal 1.
Grounds 2, 4 and 5
32 By ground 2 the appellant contends that the Compensation Magistrate erred in failing to give any, or any adequate reasons for decision regarding what matters constituted the respondent's "remuneration by whatever means". In particular, it is contended the Compensation Magistrate failed to clearly state whether the payments made by the appellant to the respondent for reimbursement of costs and the 10 per cent surcharge on the costs (defined as "out-of-pocket" expenses) form part of the respondent's remuneration.
33 The appellant further contends that if the Compensation Magistrate did not include the out-of-pocket expenses as part of the respondent's remuneration, he erred in not doing so (ground 4) and in failing to give any, or any adequate reasons for not doing so (ground 5).
34 It is clear from par 14 of his reasons set out earlier that the Compensation Magistrate did conclude that reimbursement was not remuneration. I am also satisfied the Compensation Magistrate concluded that the surcharge was "remuneration by whatever means" for the purposes of analysing whether the respondent was a worker. Having regard to the way in which ground 2 is particularised, I would not uphold this ground of appeal. However, the adequacy of the reasons on the issue of reimbursement remains alive in ground 5.
35 It is accepted that a compensation magistrate has a duty to state his or her reasons for decision. The function of reasons is to preserve the integrity of the appeal process and to satisfy the requirements of natural justice. In determining the sufficiency of reasons, it is necessary to look at the reasons as a whole and, if necessary, in the context of the evidence to see if they give the sense of what was intended in a way that achieves the required function and purpose of reasons: Garrett v Nicholson (1999) 21 WAR 226 per Owen J at 248; Charleston v Smith [1999] WASCA 261 per Malcolm CJ at 15; Mount Lawley v Western Australian Planning Commission [2004] WASCA 149 at 13.
36 The Compensation Magistrate simply states a conclusion in relation to the reimbursement (and surcharge) without any accompanying reasons or analysis in support of the conclusion. I am unable to infer from the evidence or the context of the reasons as a whole the intellectual process by which the Compensation Magistrate's decision was arrived at. I am
(Page 14)
- satisfied that the reasons are deficient so as to give rise to an error of law. However, nothing turns on that conclusion in this appeal because the appellant in ground 4 challenges the correctness of the conclusion that the out-of-pocket expenses are not remuneration by whatever means. I agree with the reasons and conclusion of Le Miere J in relation to ground of appeal 4.
Conclusion
37 For the reasons given, I would uphold grounds of appeal 1 and 5. In this appeal, the appellant did not challenge the correctness of the Compensation Magistrate's conclusion that the Review Officer erred in his approach to the question whether the respondent's remuneration was in substance for his manual labour or services. In those circumstances, I would uphold the appeal, set aside the orders made by the Compensation Magistrate and remit the matter to a different compensation magistrate for further hearing and determination of the appeal from the Review Officer in accordance with these reasons.
38 LE MIERE J: The appellant appeals, by leave of this Court, against a decision of the Compensation Magistrate's Court allowing an appeal against a decision of a Review Officer that the respondent was not a worker for the purposes of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Act").
Background
39 The respondent is a 55-year-old gardener/handyman. The respondent injured his shoulders on 5 December 2002 whilst carrying out work for the appellant. At that time, the respondent had been working as a contractor for about 15 years. He had a registered business name of AM Gardening. The appellant was the respondent's major client. The respondent had been working for the appellant for approximately 15 years and derived about 80 per cent of his income from the appellant.
40 The appellant commenced paying weekly payments of compensation to the respondent. On 15 May 2001, the appellant applied to the Directorate of Conciliation and Review, pursuant to s 60 of the Act, for an order that weekly payments be discontinued on the ground that there was a serious dispute as to the liability of the appellant to pay compensation to the respondent. The appellant stated that the nature of the dispute was whether the respondent was a worker within the meaning of that word in the Act and hence entitled to compensation pursuant to s 18 of the Act. On 12 July 2001 the respondent filed an application for a determination
(Page 15)
- that he was a worker. The applications of both the appellant and the respondent came on for hearing before the Review Officer on 12 October 2001.
41 The Review Officer found that there was doubt as to whether the respondent was a worker, and hence a genuine dispute as to the appellant's liability to pay compensation. For those reasons, the Review Officer found that the appellant's application pursuant to s 60 of the Act should succeed and an order issue that the respondent's payments of weekly compensation be suspended. The Review Officer then went on to consider the respondent's application. The Review Officer held that the respondent was not a worker and dismissed the respondent's application.
42 The respondent appealed to the Compensation Magistrate against the decision of the Review Officer that the respondent was not a worker within the meaning of that word in the Act. The Compensation Magistrate allowed the appeal, quashed the Review Officer's decision and ordered that the appellant make weekly payments of compensation to the respondent. The appellant now appeals against that decision.
The Issue before the Review Officer
43 Section 18 of the Act provides that if a disability of a worker occurs, the employer shall, subject to the Act, be liable to pay compensation in accordance with Sch 1. "Worker" is defined in s 5(1). The definition is a long one. It is not necessary to set it out in full. The first part of the definition defines a "worker" to mean, subject to a number of qualifications, any person who has entered into or works under a contract of service or apprenticeship with an employer. The definition then goes on to extend the meaning of worker beyond its primary definition by means of the following provision:
"The term 'worker' save as aforesaid, also includes –
(a) …
(b) any person engaged by another person to work for the purpose of the other person's trade or business under a contract with him for service, the remuneration by whatever means of the person so working being in substance for his personal manual labour or services,
…"
(Page 16)
44 The respondent did not claim that he was a worker within the primary definition. The respondent submitted that he was a worker as defined by par (b) of the extended definition.
Decision of the Review Officer
45 At par 4 of his reasons for decision the Compensation Magistrate summarised the Review Officer's findings of fact as follows:
• The [respondent] undertook gardening duties for the [appellant] at the [appellant's] premises, for which he was paid $28 per hour.
• The [respondent] was not subject to direction as to the manner in which he did his work or the hours and days on which he did it.
• The [appellant] provided a ride-on lawnmower and a blower/vacuum cleaner.
• The [respondent] provided all other necessary equipment when required. [The Compensation Magistrate set out a list of 41 items taken from the depreciation schedule annexed to the respondent's income tax return. The items included a Ford station wagon, lawnmowers, gardening or handyman tools, and office or personal items such as a mobile telephone, a portable telephone, half-share computer, fax machine and water kettle.]
• The [respondent] did not charge an extra or separate amount for the provision of that equipment; it was covered by the sum of $28 per hour.
• The [respondent] purchased various other items, eg, plants, fertilisers, herbicides and reticulation equipment, and when he did so he would submit an invoice for the purchase price plus an additional 10 per cent for his time and effort, and the use of his vehicle and trailer, in purchasing and transporting those items.
• In the period 15 December 1999 to 30 June 2000, as an example, the [respondent] submitted invoices for gardening services in the total sum of $22,998.50, and for the cost of materials in the total sum of $2671.60.
• The [respondent] did not himself engage labour to assist him. Other tradesmen required for particular tasks, eg, tree loppers, contracted directly with the respondent.
46 The Review Officer found, and it was not disputed on appeal to the Compensation Magistrate, that the respondent was employed by the appellant under a contract for services and that the work performed by the
(Page 17)
- respondent was for the purpose of the appellant's business. The only question then was whether the respondent's remuneration was "in substance for his personal manual labour or services".
47 The Review Officer stated that that issue had been considered by the Full Court in Summit Homes v Lucev (1996) 16 WAR 566 and referred to observations of Ipp J at page 576 in his Honour's judgment. The Review Officer referred to the decision of the High Court in Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 and set out an extract from pages 214 and 215 of the joint judgment of Kitto, Taylor, Menzies and Owen JJ.
48 The Review Officer then referred to his findings of fact and concluded as follows:
"(28) As the High Court concluded in Marshall v Whittaker's Building Supply Co, a contract, which by its terms requires not only the labour of the contracting partner but also the provision of power equipment to do the job, could not be regarded as a contract which provides for remuneration of the person so working as 'in substance a return for his manual labour'. The [respondent] agreed 80 per cent of his gross income for a 12-month period was generated by the work he undertook for the [appellant]. Although it is not possible to identify with any certainty what his costs were in the 12-month period when fulfilling his contract with the [appellant], there was nothing to suggest his operating costs in his contracts with the other companies in question were disproportionate to the costs he incurred in his contract with the [appellant].
(29) On the balance of probabilities I must conclude that the [respondent] was not paid 'in substance' for his personal manual labour and services alone. The [respondent] was required to provide a considerable amount of mechanised equipment, ranging from a motor vehicle, lawnmowers, power tools, etcetera, as well as a trailer to transport not only his equipment, but also soils and other materials to the [appellant's] worksite. Without this equipment he could not have done his job and this equipment had to be serviced, repaired and costs outlaid for fuel, oils, etcetera. In view of the above I have no option other than to
(Page 18)
- conclude the [respondent] is not a worker as claimed and in the circumstances his application ought to be and is hereby dismissed."
Decision of the Compensation Magistrate
49 In his reasons for decision the Compensation Magistrate summarised the Review Officer's findings of fact and the Review Officer's application of the law to the facts as so found. At par 9 of his reasons, the Compensation Magistrate said that the relevant legal principles could be extracted from Marshall v Whittaker's Building Supply Co and Summit Homes v Lucev. His Worship summarised those principles as follows:
"(a) The first question to be addressed is whether the person alleged to be a worker is being remunerated for personal manual labour or services alone (Summit Homes v Lucev per Ipp J at 16-17).
(b) If the answer to that question is in the negative, findings have to be made as to the extent to which the person concerned is being remunerated for personal manual labour or services and the extent to which he or she is being remunerated for matters which cannot be classified as the provision of personal manual labour or services (ibid).
(c) Expenses incurred by the person concerned and items claimed as deductions in the person's taxation returns are likely to have little bearing on the matter; a broad view may be taken of the evidence (ibid).
(d) Those issues having been determined, a judgment has to be made as to whether the remuneration, overall, is 'in substance' for the personal manual labour or services provided (ibid).
(e) The function of the words 'in substance' in par (b) of the definition is to enlarge the description which the words immediately following provide, so that the definition may apply not only where the remuneration is a return for manual labour bestowed by a person upon the work in which he or she is engaged and for nothing else, but also where, although the remuneration is a return for something else also, the something else is comparatively
(Page 19)
- so insignificant that in reality, or to all intents and purposes, it is return for manual labour so bestowed (Marshall v Whittaker's Building Supply Co at 214-215).
- (f) The definition could cover someone who provides hand tools to do the manual work required of him or her by the contract for service, or a person whose work in performing his or her contract is not wholly manual (ibid)."
50 His Worship then referred to the respondent's submission that in coming to his decision the Review Officer failed to follow what counsel for the respondent described as the three-tier approach proposed by Ipp J in Summit Homes v Lucev and referred to at subparagraphs (a), (b) and (d) in his Worship's summary of relevant principles in par 9 of his reasons for decision.
51 The Compensation Magistrate concluded that the Review Officer had erred in law in misdirecting himself concerning the relevant principles. His Worship said at par 12 of his reasons:
"That complaint, it seems to me, is not without justification. The Review Officer's reasons suggest that he came to the decision that he did because the appellant carried with him an array of 'mechanised' equipment to assist him with his work. Of greater concern, moreover, the Review Officer, when paraphrasing the passage from the majority judgment in Marshall v Whittaker's Building Supply Co set out above, which he did in par 28 of his reasons, left out two crucial considerations arising from the peculiar facts of that case. The Review Officer said that the High Court concluded that a contract which by its terms requires not only the labour of the contracting party but also the provision of power equipment to do the job could not be regarded as a contract which provides for remuneration of the person so working as 'in substance a return for his manual labour'. As noted above, the High Court was speaking of a contract which required not only the labour of the contracting party and the provision of power equipment, but also the employment of other labour, and which provided for payment according to the results of the combined activity. It is not the law that any contract which requires the provision of some power equipment cannot by definition be one under which
(Page 20)
- remuneration is in substance for personal manual labour or services."
52 Having found that the Review Officer had erred in law, the Compensation Magistrate went on to determine whether the remuneration of the respondent by the appellant was in substance for his personal manual labour or services and hence whether the respondent was a worker for the purposes of s 18 of the Act. The Compensation Magistrate acknowledged that whether a person is remunerated in substance for his personal manual labour or services involves questions of degree and judgment. His Worship concluded that "taking a broad view of what it is that the [respondent] was remunerated for, … I have come to the conclusion that the [respondent's] remuneration should have been characterised as being in substance a return for his manual labour or services".
Appeal to this Court
53 An appeal to this Court under s 84ZW of the Act is confined to an appeal "on a question of law".
Grounds of Appeal
54 There are five grounds of appeal. The appellant does not press ground 3. Ground 1 is as follows:
"The Compensation Magistrate erred in law in misinterpreting and misapplying the principles for determining whether a worker's remuneration was in substance for his manual labour or services for the purposes of the definition of the term 'worker' in s 5 of the [Act]."
55 In his oral submissions, Mr Pruiti, counsel for the appellant, submitted that the Compensation Magistrate had misinterpreted or misapplied the principles for determining whether a worker's remuneration was in substance for his manual labour or services by asking himself the wrong question and misconstruing the test to be applied. Counsel submitted that the Compensation Magistrate had asked himself what the respondent was engaged to do rather than what he was being remunerated for. Counsel submitted that the Compensation Magistrate had characterised the contract between the appellant and the respondent rather than determining what the respondent was being remunerated for.
(Page 21)
Remuneration in substance for personal manual labour or services
56 Mr Pruiti illustrated his submissions by reference to the judgments of the majority and Windeyer J, in dissent, in Marshall v Whittaker's Building Supply Co. In that case the respondent company was engaged in the timber industry. It entered into an oral contract with M for the felling and hauling of timber. M was to fell marked trees and to trim and haul the resultant logs to the respondent's mill. He was required to deliver approximately 50 loads weekly, and for this was to be paid at the rate of £3 per load. He was obliged to supply his own felling equipment and a truck with a power winch for hauling and he also had to employ a swamper at his own expense. The contract was to continue for an unspecified period. M was killed whilst performing work under the contract and his widow claimed compensation under the Workers' Compensation Act 1912-1960 (WA) contending that the deceased was a worker within s 5 of that Act. The definition of "worker" included any person working in connection with specified activities for another person who was engaged in specified industries for the purpose of such other person's trade or business where the remuneration of the person so working was in substance a return for manual labour bestowed by him upon the work in which he is engaged.
57 Kitto, Taylor, Menzies and Owen JJ, in a joint judgment, found that M was not a worker within the extended definition. Their Honours said that in Australia certain work is normally carried out under contracts providing for payment by results under which the contractor works as he thinks fit rather than in accordance with the directions of the person for whom the work is being performed and it is common to find in workers' compensation legislation limited provisions for bringing such contractors within the scope of the legislation. Their Honours then continued at pages 214 – 215:
"The definition with which we are here concerned is clearly enough such a provision and its effect is that in the cases specified where there is a contract for services providing for remuneration which appears in reality to be payment for manual labour, the person providing the services is a worker for the purposes of the Act. The words 'in substance' do not mean, as the Board appears to have thought, 'to any substantial extent'. Their function is to enlarge the description which the words immediately following provide, so that the definition may apply not only where the remuneration is a return for manual labour bestowed by a person upon the work in which he has engaged
(Page 22)
- and for nothing else, but also where, although the remuneration is a return for something else also, the something else is comparatively so insignificant that in reality, or as one might say to all intents and purposes, it is a return for manual labour so bestowed. For instance, the definition could cover a tradesman who provides his hand tools to do the manual work required of him by his contract or a man whose work in performing his contract is not wholly manual.
The meaning which we have attributed to the definition, however, renders it entirely inapplicable to the facts found by the Board. A contract, which by its terms requires not only the labour of the contracting party but his employment of other labour and his provision of power equipment to do the job and which provides for payment according to the results of the combined activity, cannot in law be regarded as a contract which provides for remuneration 'of the person so working' as 'in substance a return for his manual labour'. The £3 per load here could not be so described."
58 Windeyer J dissented. His Honour held, at page 222-223, that the phrase "in substance" referred to the essential character of the remuneration, not whether it was a large part of the remuneration. That is, it involved a question of characterisation. At page 223, Windeyer J said:
"[The inquiry that the Act requires is] what is it that the man does for which his remuneration is a return? Does he earn his remuneration in substance by manual work? The answer that the Supreme Court gave was that his remuneration was a return for all that he provided, his equipment, the work of the swamper, his own labour. From the point of view of economic theory and accounting that unquestionably is so. Then, by dissecting the total sum received by the deceased under his contract, it can be shown that after deducting the swamper's wages and the costs of maintaining the equipment less than half that total sum remains as the net income of the deceased; and that amount it is then said is the most that can be considered as his return for manual labour bestowed by him upon the work. I see the force of this. But in my opinion the proportion the net income of the working contractor bears to the total amount of his contractual remuneration is not the proper determinant of whether or not that remuneration was in substance a return for his own work. So to regard it too readily leads to 'in substance'
(Page 23)
- being read as if it meant 'in the main' or 'for the most part'; and that would be an error similar to that which I think the Board made. The question appears to me to be whether in substance the contractor earned his pay for his work as a tree feller and carrier of timber. The amount he was paid for his services reflected, no doubt, the cost to him of equipping himself with the necessary plant and assistance and getting them and himself to the job. But, as I see it, what he was to do was to fell and cart timber, manual labour. The Board could, I think, consider that his remuneration was, in substance, for doing just that, not for providing a truck and power saw, but for using them."
59 The majority held, in effect, that determining whether the remuneration of a person is in substance for his personal manual labour or services is not an exercise of characterisation. It is not a matter of determining what it is that the person is engaged to do. In Summit Homes v Lucev (1996) 16 WAR 566, Ipp J, with whom Kennedy and Rowland JJ agreed, said that the test which has to be applied in determining whether a person is a worker as defined by the extended definition is as follows:
"The first question, it seems to me, is whether the person alleged to be a worker is being remunerated for personal manual labour or services alone. If the answer to this question is in the negative, findings have to be made as to the extent to which the person concerned is being remunerated for personal manual labour or services, and the extent to which he or she is being remunerated for matters which cannot be classified as the provision of personal manual labour or services. These two issues having been determined, a judgment has to be made as to whether the remuneration, overall, is 'in substance' for the personal manual labour or services provided."
60 The third stage in the test outlined by Ipp J is not an exercise of characterisation. It involves an analysis or dissection, from an economic and accounting point of view of what the person's remuneration was a return for. It may be difficult, if not impossible, to precisely dissect the person's remuneration into remuneration that is a return for manual labour and remuneration that is a return for something else. A broad view may be taken of the evidence. Nevertheless, the decision-maker must determine the extent to which the remuneration is a return for his personal manual labour or services and the extent to which it is a return for bringing something else to the undertaking for which he is being remunerated. It is necessary for the decision-maker to determine whether
(Page 24)
- or not the remuneration which is a return for something other than manual labour or services is comparatively so insignificant that in reality, or as one might say, to all intents and purposes, the total remuneration is a return for manual labour or services.
Compensation Magistrate erred
61 In my view, the Compensation Magistrate fell into error in applying the test. At par 13 of his reasons, the learned Compensation Magistrate said:
"It seems to me that the essential question is still: what is it that the [respondent] was being remunerated for? And the answer to that question, it seems to me, must be that he was being remunerated for gardening. I have no doubt that the [appellant] could not have cared less what tools were being used by the [respondent], as long as he achieved a result which was, in the [appellant’s] view, commensurate with the $28 per hour that the [appellant] had been happy to pay him over a long passage of time."
62 In answer to his question: "What is it that [the respondent] was being remunerated for?", the learned Compensation Magistrate answered that he was being remunerated for gardening. The Magistrate focused on what it was that the respondent was engaged to do. The learned Compensation Magistrate determined the essential character of the contract between the appellant and the respondent – it was a contract to provide gardening services.
63 The respondent's remuneration was a return for all that he brought to his undertaking in providing gardening services to the appellant. That included plant and equipment and the purchasing and obtaining of plants, fertilisers, herbicides and reticulation equipment as well as his own labour. The Magistrate's comment that the appellant could not have cared less what tools were being used by the respondent as long as he achieved a result which was in the appellant's view commensurate with what he was paid shows that the Magistrate was wrongly looking at the character of the contract between the appellant and the respondent and what it is that the respondent was to achieve under that contract. The Magistrate should have been inquiring what the respondent was being remunerated for in the sense of what the respondent brought to the undertaking for which he was being remunerated.
(Page 25)
64 The Compensation Magistrate did not attempt to quantify the extent to which the respondent was being remunerated for providing equipment rather than his manual labour. The Magistrate found that the 10 per cent surcharge charged by the respondent for purchasing plants and fertilisers is, by comparison with the amount invoiced for gardening services, so insignificant that it can, at least in its own right, be disregarded. The learned Magistrate then said:
"I say in its own right, because the Review Officer came to the conclusion that the fuelling and maintaining of his array of gardening equipment was something for which the appellant was being remunerated. If the Review Officer's approach were correct, then one would have to add the surcharge to the cost of fuel and maintenance (and, I daresay, some amount for depreciation) and compare the total of those amounts with the respondent's total remuneration. As I have indicated, however, that is not, in my view, the correct approach in this case."
65 In my view, that passage again reveals that the learned Compensation Magistrate applied the wrong test. The learned Magistrate asked himself what was the essential character of the contract between the appellant and the respondent and what was it that the respondent was engaged to do. As I have explained, that is not the correct test. The Magistrate is required to make findings as to the extent to which the respondent was being remunerated for personal manual labour or services and the extent to which he is being remunerated for providing equipment or other things. That question is not answered by inquiring what is it that the appellant engaged the respondent to do. The Review Officer was correct to attempt to determine what part of the respondent's remuneration for providing gardening services to the appellant was attributable to the fuelling and maintaining of the gardening equipment he used in providing those services, what part was attributable to the surcharge for purchasing and delivering plants, fertilisers, herbicides and reticulation equipment and what part was attributable to the respondent's manual labour.
66 In this case, the respondent was not remunerated for personal manual labour or services alone. In return for his remuneration, he also provided equipment that he owned and maintained, and purchased and delivered plants, fertiliser, herbicides and reticulation equipment. The Compensation Magistrate was required to determine the extent to which the respondent was remunerated for personal manual labour or services and the extent to which he was remunerated for providing equipment and purchasing and obtaining plants and fertiliser. The learned Magistrate
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- failed to do that. Instead, the learned Magistrate considered what was the essential character of the contract between the appellant and the respondent. In taking that approach the learned Magistrate fell into error.
67 For those reasons, ground 1 of the appeal is made out. The appeal must succeed and it is strictly unnecessary to consider the other grounds of appeal. However, I will consider the other grounds of appeal because the matter will have to be reheard by the Compensation Magistrate.
Ground 4
68 Ground 4 of the appeal is that the Compensation Magistrate erred in law by not including the out-of-pocket expenses as part of the respondent's "remuneration by whatever means".
69 The Review Officer's finding in relation to the gardening supplies for which the respondent was reimbursed by the appellant was as follows:
" … the contract allowed for the [respondent] to be reimbursed for any gardening supplies he purchased for and on behalf of the [appellant] as these materials allowed him to complete the necessary tasks required of him in maintaining the garden in a satisfactory condition."
70 In my view, in this context remuneration is different from reimbursement. Remuneration refers to the act of paying or rewarding a person for services and materials provided. Reimbursement is the act of paying back a person for expenses incurred on behalf of the person making repayment.
71 The Review Officer found that the respondent purchased gardening supplies "for and on behalf of the [appellant] and that the [appellant] reimbursed the [respondent] for those items". In my view, no part of that reimbursement was remuneration for any services provided by the respondent. A worker, including an employee employed under a contract of service, may from time to time incur expenses on behalf of his employer for which he is reimbursed. If the worker is otherwise remunerated solely for his personal labour, that conclusion is not affected by the fact that the worker is also reimbursed for expenses incurred on behalf of the person so engaging him. It would be different if the respondent had purchased the items on his own behalf for supply to the appellant and then sold them to the appellant. In that case the "reimbursement" would form part of the respondent's remuneration.
(Page 27)
72 Ground 4 of the appeal is not made out. I wish to make some further brief observations concerning the surcharge.
73 In addition to being reimbursed by the appellant for gardening supplies purchased for and on behalf of the appellant, the respondent was also paid a fee or surcharge of 10 per cent of the cost of the gardening supplies. The "surcharge" fee forms part of the respondent's remuneration. The Compensation Magistrate had regard to that fact. In par 14 of his reasons, his Worship said:
"Assuming that the period accepted by way of example by the Review Officer is truly representative, then it seems to me that the 10 per cent surcharge for that period ($242.87) is by comparison with the amount invoiced for gardening services for the same period ($22,998.50) so insignificant that, in terms of the majority judgment in Marshall v Whittaker's Building Supply Co, it can be, at least in its own right, disregarded".
74 It was open to Compensation Magistrate to take the view that the amount of the remuneration received by the respondent by way of the surcharge for purchasing gardening supplies was, by comparison with his total remuneration, so insignificant that it did not, of itself, prevent the respondent's remuneration being in substance for his personal manual labour or services. However, as I have found in considering ground 1 of the appeal, the learned Compensation Magistrate erred in applying the wrong test to determine whether the respondent's remuneration was in substance for his personal manual labour or services. In doing so, the Compensation Magistrate failed to properly consider all of the things for which the respondent was remunerated, including the plant and equipment used by the respondent in providing gardening services and the surcharge fee, in determining whether he was being remunerated in substance for his personal manual labour or service.
Ground 2
75 Ground 2 is that the Compensation Magistrate erred in failing to give adequate reasons for his decision "regarding what matters constituted the respondent's 'remuneration by whatever means' for the purposes of the definition of the term 'worker' in s 5 of the Act."
76 In my view, this ground of appeal is not made out. The appellant paid to the respondent $28 per hour for gardening services. In addition, the appellant reimbursed the respondent for any gardening supplies he purchased for and on behalf of the appellant, and paid to the respondent
(Page 28)
- an additional 10 per cent surcharge on the materials the respondent purchased on behalf of the appellant. The learned Compensation Magistrate found that the payments at the rate of $28 per hour and the surcharge payment formed part of "the remuneration by whatever means" of the respondent, but that the reimbursement did not form any part of that remuneration.
Ground 5
77 Ground 5 is that the Compensation Magistrate erred in failing to give adequate reasons for not including the out-of-pocket expenses as part of the respondent's "remuneration by whatever means".
78 The learned Compensation Magistrate had an obligation to provide reasons for his decision. The necessary content of those reasons depends upon the circumstances of the particular case. One element of a statement of reasons is that a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable. In this case it was necessary for the Compensation Magistrate to decide whether the out-of-pocket expenses, or amount reimbursed, was part of the respondent's "remuneration by whatever means". The Compensation Magistrate found that the reimbursement of those out-of-pocket expenses was not part of the respondent's remuneration. However, the Compensation Magistrate failed to state his reasons or the process of reasoning which led him to that conclusion. In my view, the Compensation Magistrate thereby erred in law. Ground 5 of the appeal is made out.
Conclusion
79 For the reasons stated, the appeal succeeds. Section 84ZY(2) of the Act provides that the Full Court may make such orders as it thinks fit with regard to the appeal. The notice of appeal seeks an order that the judgment of the learned Compensation Magistrate be set aside.
80 The Compensation Magistrate found that the Review Officer had erred in law in misdirecting himself concerning the relevant principles. The Compensation Magistrate then went on to determine for himself whether the remuneration of the respondent by the appellant was in substance for his personal manual labour or services and hence whether the respondent was a worker for the purposes of s 18 of the Act. I have found that in doing so the Compensation Magistrate himself erred in law. However, the appellant did not appeal against the finding of the
(Page 29)
- Compensation Magistrate that the Review Officer had erred in law and that matter was not argued. Accordingly, it would be inappropriate for this Court to consider for itself whether the Review Officer had erred in law and hence whether the Review Officer's decision should have been set aside by the Compensation Magistrate. For that reason, the appeal should be allowed and the matter should be remitted to a different Compensation Magistrate to determine the appeal from the Review Officer.
81 That is an unfortunate result. It involves not only a further hearing before the Compensation Magistrate, but leaves open the possibility of yet a further appeal to this Court. However, that is a consequence of the manner in which the appeal was argued before this Court.
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