Australian Timber Workers' Union v Monaro Sawmills Pty Ltd

[1980] FCA 53

Re: THE AUSTRALIAN TIMBER WORKERS UNION
And: MONARO SAWMILLS PTY. LTD. (1980) 42 FLR 369
No. V32 of 1978
Industrial Law - Conciliation and Arbitration - Justices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
VICTORIAN DISTRICT REGISTRY
Sweeney(1), Evatt(1) and Keely(2) JJ.

CATCHWORDS

Industrial Law - breach of award - failure to pay amount due for annual leave - appeal against dismissal by magistrate of summons - s.119 - questions of fact and law before magistrate decided on balance of probabilities - failure of magistrate to state reasons or primary facts found - construction of contract - whether contract of service or for services - whether reservation of right of control of manner of performance of work - countervailing factors - piece worker or independent contractor - appeal upheld and penalty imposed

Timber Industry Consolidated Award

Conciliation and Arbitration Act, 1904, s.119

Conciliation and Arbitration - Alleged breach of award - Failure to pay worker amount due for annual leave - Contract of service or for services - Dismissal of summons by magistrate - Failure of magistrate to state facts found or reasons therefor - Mixed questions of fact and law before magistrate - Onus of proof - Terms of contract - Construction of contract - Conciliation and Arbitration Act 1904 (Cth), s. 119 - Federal Court of Australia Act 1976 (Cth), s. 27.

Justices - Dismissal of summons - Duty to state facts found and reasons for decision.

HEADNOTE

The appellant, a registered organization under the Conciliation and Arbitration Act 1904 ("the Act"), by a summons under s. 119 of the Act sought the imposition of a penalty on the respondent for an alleged breach of the Timber Industry Consolidated Award 1974. It was alleged that the respondent had failed to pay to one W. an amount prescribed by the award as being payable to employees in lieu of accrued annual leave. W. at material times cut timber pursuant to a contract between himself and the respondent. The summons was dismissed by a stipendiary magistrate.

On appeal,

Held: Per J.B. Sweeney and Evatt JJ. - (1) (a) It was necessary to determine first the terms of the contract and then whether the contract so ascertained was a contract of service or for services. This process involved mixed questions of fact and law. Price v. Grant Industries Pty. Ltd. (1978), 21 ALR 388, referred to. (b) The judgment of the magistrate showed ex facie an error of law in that there was a determination of the question of the classification of the contract as a question of fact or alternatively a determination of a question of law on the balance of probabilities.

(2) (a) In any case such as the present, the primary Tribunal should state the facts found and the reasons for the decision and if this was not done a request for those reasons should be made by the parties or their legal representatives. Donovan v. Edwards, (1922) VLR 87; Carlson v. King (1947), 64 WN (NSW) 65, referred to. (b) Although the magistrate had stated only briefly his conclusions, not specifying in any way the facts found and the facts on which he based his conclusion, this did not amount to an error of law in itself. Pettitt v. Dunkley, (1971) 1 NSWLR 376, distinguished.

(3) (a) The court was in a position to determine the facts deposed to before the magistrate as, although there was no transcript of those proceedings, affidavits filed by both parties set out those facts. (b) Having determined the facts the court was in a position to decide on the proper inference to be drawn from them and to ascertain the terms of the contract and whether it was a contract of service or for services. Warren v. Coombes (1979), 53 ALJR 293; Tillmanns Butcheries Pty. Ltd. v. Australasian Meat Industry Employees' Union (1979), 42 FLR 331, referred to.

(4) The circumstances of the agreement between W. and the respondent pointed clearly to the existence of the relationship of employer and employee as: (a) the respondent had reserved a right to control W.'s work; (b) there were no countervailing features; (c) W. was not conducting a business of his own and his activities could be regarded as part and parcel of the respondent's organization. Stevenson Jordan & Harrison Ltd. v. McDonald & Evans, (1952) 1 TLR 101; Bank voor Handel en Scheepvaart N.V. v. Slatford, (1953) 1 QB 248, applied.

(5) Although the civil onus of proof was appropriate in proceedings under s. 119 of the Act the application sought both a finding that a breach of an award had been committed and the imposition of a penalty and accordingly a proper degree of satisfaction was required.

Gapes v. Commercial Bank of Australia Ltd. (1979), 38 FLR 431; Briginshaw v. Briginshaw (1938), 60 CLR 336, referred to.

(6) (a) Appeal be upheld and order dismissing summons set aside. (b) The respondent to pay a penalty of $100. (c) The penalty be paid to the Australian Timber Workers' Union.

Per Keely J. - (1) The absence of the findings of fact by and the reasons for decision of the magistrate constituted an error of law warranting the granting of a new trial.

Pettitt v. Dunkley, (1971) 1 NSWLR 376; Brittingham v. Williams, (1932) VLR 237, applied.

(2) It was not possible for the court on the material before it to decide that the Magistrates' Court was obliged to conclude that W. was an employee and accordingly the proper course was to set aside the order of the Magistrates' Court and grant a new trial.

HEARING

Melbourne, 1979, February 19-20; March 30; 1980, March 11; April 29. #DATE 29:4:1980

APPEAL.

The facts appear from the joint judgment of J.B. Sweeney and Evatt JJ.

D. M. Ryan, for the appellant.

C. N. Jessup, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Warren, Graham & Murphy.

Solicitors for the respondent: Moule, Hamilton & Derham.

T. J. GINNANE

ORDER

1. That the appeal be upheld and the order dismissing the summons set aside.

2. That the respondent pay a penalty of $100.

3. That the penalty be paid to the Australian Timber Workers Union.

JUDGE1

This is an appeal against the dismissal by Mr. J.N. Dugan, S.M. of a summons seeking the imposition of a penalty pursuant to s.119 of the Commonwealth Conciliation and Arbitration Act, 1904 on the defendant for a breach of the Timber Industry Consolidated Award (134 C.A.R. 763) in respect of the failure to pay an amount due for annual leave to an employee, Mr. Wilfred Harry Wales. The respondent was Monaro Sawmills Pty. Ltd. ("Monaro") and the complainant the Australian Timber Workers Union ("the Union").

At the hearing it was admitted that:
1. The Australian Timber Workers Union is an organization of employees registered under the Conciliation and Arbitration Act, 1904.

2. The defendant Monaro Sawmills Pty. Ltd. is a company duly incorporated under the Companies Act of the State of Victoria.

3. The defendant has at all material times been a respondent to the Timber Industry Consolidated Award 1974.

4. Between 12 July 1977 and 13 September 1977 Wilfred Harry Wales cut timber pursuant to a contract between himself and the defendants.

5. The defendant did not pay to the said Wilfred Harry Wales any money in lieu of annual leave in respect of the said period from 12 July 1977 to 13 September 1977.

After the admissions had been made, evidence was called and addresses heard and the learned Magistrate gave his judgment in the following terms:
"It was agreed that if Mr. Wales is to be regarded as an employee of the Company then the Company is bound by the award and Mr. Wales is entitled to payment in respect of annual leave accrued under the award.

The question to be determined in the matter is whether Mr. Wales is an employee subject to the award either as an incentive employee or an employee performing under "piece work" conditions, or whether he was an independent contractor.

The onus of proof in these matters rests with the complainant to satisfy me on the balance of probability that he was an employee within the terms of the award.

Neither the evidence adduced nor the arguments put have convinced me that the Complainant has discharged this onus with which he is charged.

I am satisfied that there did not exist between the Defendant and Mr. Wales a relationship of master and servant but rather that Mr. Wales was engaged by the Defendant on a contractual basis as an independent contractor."

It will be noted that the Magistrate treated all the questions arising at the hearing as appropriate to be dealt with according to the balance of probabilities. In fact there were three groups of issues. The first was to determine the terms of the contract entered into between Mr. Wales and Monaro and included the conduct of the parties to the contract entered into, with a view to ascertaining whether, and if so what, inferences could be drawn from that conduct to assist in the determination of the question of what the contract was.

The issue which then arose was whether the contract, the terms of which had been ascertained, was a contract between employer and employee: a contract of service or a contract for services. It appears, however, that the learned Magistrate treated all these issues as governed alike by the question of the proper onus to be applied. He poses the question to be determined as whether Mr. Wales was an employee subject to the Award either as an incentive employee or an employee performing under piece work conditions, or whether he was an independent contractor and he states that he decided these questions by applying the civil onus of proof.

It is clear that not all of these are questions of fact. If a contract is in writing its proper construction is clearly a matter of law and in our view this is also the position when the contract is not in writing or when its terms must be inferred from circumstances including the conduct of the parties in carrying out the contract (Price v. Grant Industries, 21 A.L.R. 388 at 393).

To this extent the determination of an issue such as this may well be said to involve mixed questions of law and fact; the fact being the ascertainment of the relevant conduct of the parties under their contract and the inferences proper to be drawn therefrom as to the terms of that contract. Once the terms have been sufficiently ascertained, however, the classification of the contract, whether as one for services or of service, is a question of law. We are of opinion then that the judgment of the Magistrate shows an ex facie error of law in that he appears to have determined the question of the classification of the contract as a question of fact, or alternatively to proceed to determine a question of law on the balance of probabilities.

During the hearing a question was raised whether proceedings under Section 119 were civil or criminal and if the latter, whether an appeal lay against an acquittal. Since at the time it was known that same question was to be argued before a bench of five members of the Court, that question was adjourned until judgment in the other matter had been delivered. The Court held in Gapes v. Commercial Bank of Australia (4th October, 1979) that proceedings under Section 119 were not criminal and we propose to follow that decision.

During the hearing before the Magistrate, witnesses were called by both the complainant and the respondent. Unfortunately, no transcript of the hearing was taken. However, in the appeal in this Court, affidavits were filed which set out what had been deposed to in the Court below. There were some relatively minor points of conflict as to what had been said. But the parties before us agreed that where there was such a conflict, the account of the evidence deposed to set out in the affidavits filed by the respondent should be accepted. Having done that, and on a consideration of the whole of the matters deposed to, it seems to us that there was no material difference between the evidence of the sets of witnesses. This being so, we are in a position to determine the facts which were deposed to before the Magistrate. Having determined them we are, we think, in a position to decide on the proper inference to be drawn from them and so ascertain the terms of the contract. There was and is no question of credibility. Having done so it is our duty to determine whether it was a contract of service or for services, (Warren v. Coombs, 23 A.L.R. 405; Tillmann's Butchery Pty Ltd v. Australian Meat Industry Employees Union and Ors, 1979 A.T.P.R. 18,489).

It will be noted that the learned Magistrate stated only briefly his conclusions. He did not specify in any way the facts he found and the facts on which he based his conclusion.

This factor, the failure to state the facts found and the reasons therefore, has created problems. Courts have over the years repeatedly stressed the need for reasons to be given by a Tribunal. For example, in Donovan v. Edwards (1922) V.L.R. 87 at 88 Irvine C.J. said: "In the exercise of their judicial functions justices are not exempt from the duty which attaches to every judicial officer to state to the best of his ability the facts he finds and the reasons for his decision." See also Brittingham v. Williams (1932) V.L.R. 237; Lock v. Gordon 66 V.R. 185. Similar statements have long been made in other Courts. In Carlson v. King 64 W.N. (N.S.W.) 65, Jordan C.J. in delivering the judgment of the Full Court of the Supreme Court of New South Wales said:
"It has long been established that it is the duty of a Court of first instance, from which an appeal lies to a higher Court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision. The duty is incumbent not only upon magistrates and District Courts but also upon this Court, from which an appeal lies to the High Court and the Privy Council."
See also Pettit v. Dunkley (1971) 1 N.S.W.L.R. 373.

It is unnecessary, we think, to refer to further authorities on this point, but we take the view that, in any case such as the present, the primary tribunal should state the facts found and the reasons for the decision and if this is not done a request for those reasons should be made by the parties or their legal representatives.

The question was raised whether this failure by the Magistrate amounted to an error of law as stated in Pettit v. Dunkley (supra). The appeal in that case, however, was limited to a question of law which became impossible of resolution without reasons stated by the learned trial judge and, while the position is more difficult here than it should be, we do not think we should regard the failure as being an error in law itself.

We turn then to the evidence of the making of the contract. It appears that Monaro conducted a sawmill in the Bairnsdale region in the State of Victoria. It secured its logs for the operation of the sawmill by engaging (to use a neutral term) fallers to fell trees on an area specified in a licence issued to it by the Forests Commission. Evidence of the precise arrangements with the Forests Commission was somewhat scanty, but it appears that it was a requirement of the licence that Monaro should clear the area allotted to it to the satisfaction of that Commission. The evidence does not disclose the nature of the timber or of the areas, whether it was a forest established by the Commission or land uncultivated for forestry purposes. It appears that the felling of trees was required to be done in such a manner as to secure "good timber", that the feller had to present the article, the felled tree, to the satisfaction of the sawmiller. After felling, it appears that the fallen tree was snigged and handled by what were described as independent contractors not employees of the respondent. No doubt the logs were conveyed to the mill or some like place where final inspection and measurement could be done. In addition to the falling of trees the feller was required to obey any instructions given by the Forests Commission. He was also required to fall culls which we presume were trees of no commercial value.

The evidence showed that Wales had felled trees for Monaro on previous occasions and that he was experienced in the work.

The evidence as to the manner in which Wales was engaged is meagre. His evidence was that he learned from a timber hauling sub-contractor that work was available with Monaro and that he then attended at Monaro mill and agreed to cut timber standing on blocks of which Monaro was a licensee from the Forests Commission. The remuneration for such work was agreed to be the rate of $1.35 per cubic meter of timber cut. The respondents evidence was that the only recollection the manager who made the engagement had of the conversation was that he said he was interested only in getting good timber. He agreed that the rate was worked out having regard to what a faller could earn in the light of the nature of the timber.

Some picture of the working of the industry can also be gleaned from the award. It was admitted that Monaro was a respondent to the award. Perusal of the award which binds a large number of respondents in various States shows that fallers may be weekly employees. Classification 26 of Clause 4 provides a wage rate for "a faller who works alone, selects his trees and sharpens his own saws" and provides a lower rate for other fallers. Provision is also made by the award in Clause 8 for "piece work fallers". They are persons who, with the concurrence of the employer, supply, operate and maintain their own power saws and receive a rate which would enable them to earn not less than 12 1/2% in excess of the ordinary time rate. In addition they receive an allowance for power saws as may be agreed upon, but not less than $8 per week in 1974.

The provisions of the award relating to piece workers for whom no hours or days of work were fixed were inserted in 1976.

It will be noted that in the making of the contract there was no discussion as to hours or days to be worked or as to quantities. There was no discussion about the supply of tools and none about the method of payment of public holidays, annual leave or like matters. We think it follows from this that both parties accepted that, by reason of the Award which admittedly bound the respondent and also bound Mr. Wales who was a member of the organization, the provisions of the award were incorporated in the contract of employment. It then becomes necessary, we think, to examine the conduct of the parties thereafter in order to deduce the nature of the agreement between Mr. Wales and the respondent. There were a number of matters which were not in dispute which are relevant to decide if there was a reservation of a right to control in material aspects.
1. Wales admittedly performed work as a faller on the relevant dates under an arrangement with Monaro. He had previously been engaged as a faller with Monaro and was experienced in work of this nature.

2. Upon engagement Monaro notified the Forests Commission of Wales' engagement.

3. Wales performed work in an area allotted to him by Mr. Smith described as the "bush boss" of Monaro. It appears that the Forests Commission marked out in the licensed area blocks of approximately 10 chains x 10 chains and that one of these was then assigned to each faller. He would then continue working solely within that block until another was allotted to him. His duty was to cut the trees and clear the area to the satisfaction of the Commission as well as cutting culls.

4. Wales and the other fallers were paid sums of money according to the quantity of millable timber cut by them. The logs were snigged and removed from the block allocated to the faller and measured. The rate of payment was $1.35 per cubic metre. In addition payment was made for culls. This appears to have been calculated as a fixed amount payable to Monaro by the Commission for each cull felled and there was deducted from this amount some of the cost to Monaro of procuring workers' compensation insurance. The precise method of calculation did not appear.

5. Wales generally worked Monday to Friday but he could work such hours as he pleased and take such meal breaks or smokos or the like as he pleased.

6. Wales supplied his own saw, files and axe, and spare parts and fuel were purchased by him from Monaro.

7. There were some huts which had been used for employees in other capacities and these were made available to Wales and to other fallers to use if they desired to do so and they resided in them during the week.

8. Wales used his own motor vehicle for transport from the huts to the actual place of employment.

9. At some periods instalments of income tax were deducted but generally this was not done.

10. Monaro took out a workers' compensation policy covering the fallers and kept it in operation.

11. During the period of Wales' work as a faller with Monaro the records of the company appear to show that two persons were engaged as partners in felling timber and clearing one block. In addition the persons who snigged and hauled the logs after they had been felled were in the records of the company described as contractors. Wales himself was described in records kept by the company as a contract faller.

12. In his income tax returns Wales claimed depreciation on the saws and other tools used in the work.

The first aspect to be considered is whether there was a reservation of a right to control and this we think is shown by the facts. The area in which he was to cut was allocated to him. Mr. Smith was employed as a bush boss by Monaro and one of his main duties was quality control of the timber cut. He visited each block daily. When the mill required logs to be cut to special lengths he so informed the fallers. This happened occasionally. If long butting was required he also so directed the faller and if a defect appeared he would direct the cutting off of a section of the log. He conveyed to men such as Wales instructions from the Forestry Commission relating to the falling of trees and if necessary he gave directions designed to keep up a supply of logs to the mill. Officers of the Forestry Commission from time to time instructed fallers to cut certain trees.

All these aspects show that, without any express terms when the agreement was made, a degree of control was exercised and this is consistent only with a reservation of the right so to do. We think that in determining the nature of the contract which did exist, what matters is lawful authority to command so far as there is scope for it (Cf. Zuijs v. Worth Bros Pty Ltd, 93 C.L.R. 561, as a modern exposition of the control test.)

Wales was employed in an isolated area, one man on a block 10 chains x 10 chains and unless one bush boss had been employed to each faller there is probably no closer control which could have been exercised.

We do not regard the question of the right to control as conclusive in itself as there may be other countervailing features (Queensland Stations Pty Ltd v. The Federal Commissioner of Taxation, 70 C.L.R. 539). The countervailing features here were said to consist of various matters. In the first place that Wales was free to work whichever days and whatever hours he chose, although he generally worked Monday to Friday. Next he provided his own saw and purchased fuel and parts for it from the respondent. Thirdly, he was paid a piece work rate. As against these features there is the fact that Wales did not, during the period this engagement lasted, work for any other person. The Company records showed Wales described as a contractor but as against this, Wales' evidence was that he was known as a faller and never as a falling contractor. The evidence was that the provisions of Clause 39 of the Award dealing with contractors were not complied with in Wales' case.

As to these matters, the Award provides that provisions relating to -

10 - Travelling Allowance
12 - Camping Allowance
14 - Mixed Functions
17 - Hours
19 - Overtime, Saturday, Sunday and Holiday Payments
30 - Shifting Camp

do not apply to piece workers. The Award also provides for piece workers to be paid a rate of renumeration fixed by agreement which would enable him, if of average capacity, to earn for 40 ordinary hours per week, not less than 12 1/2% above the appropriate award weekly time rate for the class of work performed.

It is in our view, impossible to regard a term, incorporated in a contract of employment, by reason of an award, as constituting a countervailing factor which should be used to find that the contract was one with an independent contractor. Matters such as terms used in the Company's own records or the term used by Wales seem to us of little value. In addition it is the fact that on some occasions Monaro made deductions from the payments due for income tax purposes. But this does not constitute any admission on their part for the payments made after receipt of a letter from the Commissioner of Taxation advising that persons of this class were employees and that the deductions should be made. We regard this fact as quite neutral, (R.E.S. Logging Co. Pty Ltd v. Bridge, 1969 N.S.W.A.R. 604). In addition payments were made on premiums for workers' compensation insurance, but since workers' compensation may be payable in appropriate circumstances to Wales, whether he was an employee or an independent contractor, this does not help.

Wales cut from the block trees which were designated as culls by the Forestry Commission and a payment per tree for these was made by the Forestry Commission to Monaro and then an amount for each tree so cut less some deduction for workers' compensation premiums was paid to Wales and each of the fallers. We do not think there is any room for regarding Wales as working for the Forestry Commission in any sense.

One fact should be added and that is that logs were measured and payment made at fortnightly intervals to Wales. None of these matters relied upon as countervailing measures seems to us to cut down in any way the effect of the reservation of control or to show that the relationship was not one of master and servant.

In our view, the circumstances point clearly to the existence of the relationship of employer and employee. We do not think there is any sense in which it could be said that Wales was conducting some sort of business of his own. So far as the tests proposed by Denning L.J., as he then was, in Stevenson, Jordan and Harrison Ltd. v. McDonald and Evans (1952) 1 T.L.R. at page 111 and Voor Handel en Scheepvaart N.V. v. Slatford (1952) 2 All E.R. 956 at 971, in these terms: "In this connection I would observe the test of being a servant does not rest these days on submission to others, it depends on whether the person is part and parcel of the organisation." Without feeling the need to define the term "part and parcel" of an organisation, we think that here Wales in his activities was part and parcel of the organisation.

The purpose of Monaro was to have logs cut, conveyed to their mill and there manufactured. Wales was not in any sense carrying on a business of his own. The work he performed was not peripheral, but was integral to the organisation.

For these reasons we are satisfied that the appeal should be upheld. In reaching these conclusions we have had regard to the decision of the learned Magistrate treating it as more likely to be right. At the same time we regard the matter as a civil proceeding in which the civil onus of proof is the correct one, but taking into account that it involves a finding that a breach of an award had been committed and that a penalty is to be imposed. While this is a lower onus than the criminal one, it still requires a proper degree of satisfaction (Briginshaw v. Briginshaw, 60 C.L.R. 363).

The appeal is allowed and the order dismissing the summons and complaint set aside. In lieu thereof, the Court finds that the respondent committed a breach of the award as alleged and imposes a penalty of $100 and directs that the penalty be paid to the organisation, The Australian Timber Workers Union.

We have taken the course of allowing the appeal rather than sending the matter for retrial, since in our view it is preferable that the matter be so disposed of with a view to bringing the litigation to an end and we have felt able to do this by reason of the agreement of the parties as to the version we should accept of the material evidence before the learned Magistrate.

JUDGE2

I have had the advantage of reading in draft form the reasons for judgment of J. B. Sweeney and Evatt JJ. which set out the circumstances relating to this appeal and the terms of the decision of the Magistrate's Court. I agree that this Court's task has been made more difficult by the absence of a transcript or depositions of the evidence given and by the failure of the Magistrate's Court to state its findings of fact and its reasons for decision.

In my view in a proceeding under s.119 of the Conciliation and Arbitration Act 1904 the Magistrate's Court is under a duty "to give reasons for a decision such as will facilitate a litigant, who may be aggrieved, exercising rights he has to appeal" Pettitt v. Dunkley (1971) 1 N.S.W.L.R. 376 at p.387 per Moffitt J.A. (with whom Manning J.A. agreed). Such a proceeding is within the principle laid down in Brittingham v. Williams (1932) V.L.R. 237 (at p.239) where the Full Court (Cussen A.C.J., Mann and Lowe JJ.) said:
"A case may turn entirely upon a finding in relation to a single and simple question of fact, or be so conducted that the reason or reasons for the decision is or are obvious to any intelligent person; or a claim or defence may be presented in so muddled a manner that it would be a waste of public time to give reasons; and there may be other cases where reasons are not necessary or even desirable. But in many cases, of which this was one, we agree with Irvine C.J. in Donovan v. Edwards (1922) V.L.R. 87 that a judicial officer should state the facts he finds and the reasons for his decision. Such a statement is desirable for the information of the parties, and in order to offer assistance to the court of appeal in the event of there being an appeal."
I accept the submission by Mr Ryan of counsel for the appellant that the present case does not fall within the classes of cases referred to in Brittingham v. Williams "where reasons are not necessary or even desirable".

In my opinion the absence of such findings of fact and reasons for decision constitute an error of law which warrants granting a new trial, as was done by the Court of Appeal in Pettitt v. Dunkley (supra) and by O'Bryan J. in Lock v. Gordon (1966) V.R. 185. By reason of s.27 of the Federal Court of Australia Act 1976 this Court "shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact". However, in hearing this appeal, the Court has neither a transcript nor depositions of the evidence given in the Magistrate's Court. The material before this Court includes an affidavit of Cecil Colin Weekley, the Secretary of the Victorian Branch of the appellant, who deposed to what he described as "a substantially accurate account of" the evidence before the Magistrate's Court.

Three of the four affidavits filed by the respondent referred to the evidence given in the Magistrate's Court. In each of those three affidavits the deponent states "the respects in which the said affidavit (of Cecil Colin Weekley) contains details which do not correspond with, or are less comprehensive than, my own recollection of the evidence" which was given at the hearing. Mr Richards, the manager of the respondent, who gave evidence in the Magistrate's Court, in his affidavit expressly denied (paragraphs 5 and 21) that certain evidence was given. Mr Smith, the bush boss of the respondent who had also given evidence, in his affidavit expressly denied (paragraphs 4, 8, 9 and 10) that he had given certain evidence. The desirability of having a full transcript of the evidence given in the Magistrate's Court for the assistance of this Court in hearing an appeal is underlined by the fact that, in each of the three affidavits filed on behalf of the respondent, the "recollection of the evidence" was sworn on 14 February 1979, i.e. some five months after the hearing in the Magistrate's Court. After some discussion of this aspect during the hearing of the appeal, counsel for both parties agreed that, where there was a conflict as to what evidence was given in the Magistrate's Court, this Court should consider the appeal on the basis of the account of the evidence set out in the affidavits filed on behalf of the respondent.

Mr Ryan on behalf of the appellant submitted that, even if the Magistrate's Court had accepted completely those parts of the evidence which were most favourable to the contention of the respondent, the only proper conclusion open to it was that Mr Wales was an employee. However, considering the appeal on that basis I am unable to come to the conclusion that the Magistrate's Court was required to decide in favour of the complainant irrespective of the view taken by it of the evidence. On the account of the evidence given in the respondent's affidavits it was open to the Magistrate's Court to decide that under his contract with the respondent Mr Wales was entitled, without the need to obtain the prior consent of the defendant, to absent himself from work for an indefinite number of successive days for his own purposes, i.e. apart from absences by reason of illness or incapacity. Similarly it could have decided that Mr Wales was entitled to work whatever hours suited him on the days on which he chose to work.

In my view on that account of the evidence it was also open to the Magistrate's Court to decide that Mr Wales was entitled under the contract to take in a partner to assist in the performance of the work. Dr Jessup of counsel on behalf of the respondent conceded that Mr Wales could not have done so without the consent of the respondent but he submitted that that requirement was not significant. In this connection he relied upon the following passage from the judgment of the Privy Council in Australian Mutual Provident Society v. Chaplin and another (1978) 18 A.L.R. 395 at p.391:
"The matters so far mentioned are inconclusive on the question of whether the contract is one of service or for services. But there are a number of clauses which, in the opinion of their Lordships, point clearly to the latter conclusion. The first of these is cl 12 which recognizes that the respondent has a right to enter into a partnership in connection with the Society's business. It may not be absolutely inconsistent with a relationship of master and servant that the alleged servant should be a partnership, but it would certainly be unusual. Its significance is not affected by the requirement for the Society's prior consent."

Again, on that account of the evidence it was open to the Magistrate's Court to decide that it was not satisfied that Mr Wales was required under the contract to perform all the work himself - as distinct from employing labour to assist him in the performance of the work or being assisted by a son or other relative on a voluntary basis without any contract of employment.

Because the Magistrate's Court failed to give full reasons for its decision including its findings of fact on the evidence before it - a full transcript of which evidence is not available to this Court - I am unable to decide that the Magistrate's Court was obliged to conclude that Mr Wales was an employee. In all the circumstances, in my view the proper course is to set aside the order of the Magistrate's Court and grant a new trial.