Cox v Tomat - [1972] HCA 10

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Walsh and Gibbs JJ.

COX v. TOMAT

(1972) 126 CLR 105

24 February 1972

Constitutional Law (W.A.)

Constitutional Law (W.A.)—Legislative power—Peace, order and good government of State—Extra-territorial operation of legislation—Road maintenance charges—Vehicle of company incorporated in one State using roads in another State—Imposition of charges on out-of-State director of company—Validity—Sufficiency of connexion with State imposing charges—Road Maintenance (Contribution) Act, 1965 (W.A.), ss. 8, 14, 15*.

Decisions

February 25
The following written judgments were delivered : -
Barwick C.J. The respondent was engaged by the appellant, which conducted a timber mill, to haul logs from the forest to the mill. He was not in the employment of the appellant under a contract of employment but by virtue by s. 6 (5) (a) of the Workers' Compensation Act, 1926 (N.S.W.), as amended, (the Act) and the facts found by the Workers' Compensation Commission (the Commission) he was deemed for the purposes of the Act to be a worker employed by the appellant. The Commission found that the respondent received an injury in the course of his deemed employment by the appellant. It also found that he suffered incapacity as the result of that injury. For a time the incapacity was total but after a time it became partial and continuing. The Commission made an award of compensation covering both the period of total incapacity and the period of partial incapacity. By an appeal brought to the Supreme Court of New South Wales (Court of Appeal Division) the appellant challenged the Commission's award insofar as it related to partial incapacity. The amount awarded for total incapacity had been paid by the appellant and the appellant sought to set aside the continuing award on account of partial incapacity and an order dismissing the respondent's application for compensation in respect of that partial incapacity. The Supreme Court by an unanimous judgment dismissed the appeal (1970) 92 WN (NSW) 629 . (at p628)

2. The appellant now appeals to this Court on the grounds, first that the Supreme Court was in error in holding that the onus was upon the appellant in the proceedings before the Commission to establish the extent of the dimunition of the respondent's earning capacity due to the injury he had received, and second that the Supreme Court was in error in holding that in the circumstance of the case the Commission was entitled to use its own experience and knowledge to find a difference between what the respondent earned prior to the injury and what he was earning or could earn after he became partially incapacitated due to the injury. (at p629)

3. The difficulties which arise in this case stem partly from the fact that the appellant was not an employee in receipt of wages and partly from the fact that the appellant worked in his business which was not confined either before or after his injury to hauling logs to the appellant's mill. Sawn timber was purchased and sold on his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cox v Tomat

Details

AGLC: Cox v Tomat [1972] HCA 10
Case: [1972] HCA 10
Decision Date: 24 February 1972

CaseChat Overview and Summary

The High Court of Australia considered a dispute between Cox and Tomat concerning the validity of a notice to quit served under the *Landlord and Tenant (Control of Rents) Act 1942* (NSW). The central issue was whether the notice, which purported to terminate a lease agreement, was effective in law.

The court was required to determine whether the notice to quit was validly served in accordance with the requirements of the relevant legislation. Specifically, the court had to consider whether the notice contained sufficient particulars to inform the tenant of the grounds for termination and whether it was served in a manner that complied with the statutory provisions.

The High Court held that the notice to quit was invalid. The court reasoned that the notice failed to specify with sufficient clarity the grounds upon which the landlord sought to recover possession of the premises. The legislation required that the notice clearly set out the reasons for termination, and in this instance, the notice was found to be vague and ambiguous, thereby failing to meet the statutory threshold for validity. Consequently, the notice was ineffective to terminate the tenancy.

Orders