Hay v Liverpool City Raceway Pty Ltd

[1980] HCA 34

HIGH COURT OF AUSTRALIA

Stephen, Mason, Murphy, Aickin and Wilson JJ.

HAY v. LIVERPOOL CITY RACEWAY PTY. LTD.

(1980) 143 CLR 672

9 September 1980

Workers' Compensation (N.S.W.)

Workers' Compensation (N.S.W.)—Worker—Professional motor cycle rider—Injury—Contract for services—Contractor deemed to be worker—Case stated—Scope—Workers' Compensation Act, 1926 (N.S.W.), ss. 6 (3A), 37 (4).

Decisions

1980, September 9.
The following written judgments were delivered: -
STEPHEN J. The joint judgment of my brothers contains a full account of the facts of this appeal and of the unfortunate history of the matter over the years. (at p674)

2. The stated case, in the form it assumed upon the third occasion of it being stated by a judge of the New South Wales Workers' Compensation Commission, asked two questions:

"(a) Did His Honour err in holding that on the found facts the applicant was a deemed worker pursuant to s. 6 (3A) of the Workers' Compensation Act 1926, as amended? (b) Was there any evidence upon which His Honour could find that the applicant was a deemed worker pursuant to s. 6 (3A) of the Workers' Compensation Act?".

It was in this form that the Court of Appeal finally dealt with it, leading to the present appeal to this Court. (at p674)

3. The Court of Appeal was unanimous in answering "Yes" to the first question, holding that the Commission was mistaken in regarding the applicant, on the facts as found, to be a deemed worker within s. 6 (3A): the contract which the Commission had found to exist between applicant and respondent could not, it was held, constitute a "contract to perform work" within the meaning of that sub-section. (at p674)

4. Section 6 (3A) reads:

"Where a contract to perform any work exceeding ten dollars in value (not being work incidental to a trade or business regularly carried on by the contractor in his own name, or under a business or firm name), or to perform any work as an outworker, is made with the contractor, who neither sublets the contract, nor employs workers, the contractor shall, for the purposes of this Act, be deemed to be a worker employed by the person who made such contract with the contractor."

For s. 6 (3A) to apply, the facts as found must have disclosed both a contract to perform any work exceeding $10 in value and the absence of what the sub-section treats as disqualifying circumstances. (at p674)

5. The facts as found expressly deny the existence of such disqualifying circumstances: the work contracted for was not work incidental to a trade or business regularly carried on by the applicant under his own or under a business or firm name nor was it to be performed as an outworker - par. 8 (p) of the case stated; again, the applicant did not sublet the contract or employ workers - pars. 8 (q) and (r). The facts as found do, on the other hand, disclose a contract to perform work - pars. (m) and (o). While it is not expressly found that the work exceeded $10 in value, the contract is found to be one by which the applicant's work was to be his attendance at and competing in races for which he was to receive starting fees and, were he to be successful, also prize money - pars. 8(m) and (n); we were told in argument that there was no dispute but that the work was of the value of more than $10. (at p675)

6. Notwithstanding these findings, it has been said both before the Court of Appeal and on this appeal, that the contract found to have subsisted between the applicant and the respondent cannot, as a matter of law, be a contract to perform work within s. 6 (3A): and this because of what was said in Zuijs v. Wirth Bros. Pty. Ltd., both by the Full Court of the Supreme Court of New South Wales (1955) 55 SR (NSW) 368 and by this Court on appeal (1955) 93 CLR 561 . In Zuijs' Case it was held in both Courts that s. 6 (3A) was not apt to cover that applicant's case. He was a trapeze artist, injured during a performance on the trapeze. In the Supreme Court, it was said that the whole tenor of the sub-section suggested that its concern was to protect men "engaged in normal industrial occupations" (1955) 55 SR (NSW), at p 373 . The exceptions in the case of subletting and of the employment of others were regarded as confining the application of the sub-section to work which was at least capable of being sublet or of being performed by the contractor's own employees. (at p675)

7. When the present case was before the Court of Appeal, Glass J.A. subjected the decision of the Supreme Court in Zuijs' Case to detailed examination and concluded that it should not be followed. With this I agree; the sub-section is expressed in perfectly general terms and is not to be given a narrow meaning confined to whatever may be thought to be "normal industrial occupations". It would, I think, be a misuse of exceptions to regard those in s. 6(3A) as determining the scope of the substantive provision of which they are part. (at p675)

8. When Zuijs' Case went on appeal to this Court it was reversed for reasons unconnected with the present point: Zuijs' relationship with Wirth Brothers was held to be that of servant and master, not independent contractor. He accordingly had no need to invoke the terms of s. 6(3A). The Court did, however, make passing reference to the section, describing it as "entirely inappropriate to the kind of contract in question in this case". This was said to be apparent from the opening words of s. 6(3A), which could not be satisfied "by a contract of indefinite duration for repeated performances of an act on a trapeze" (1955) 93 CLR, at p 574 . (at p675)

9. It cannot, I think, be that their Honours regarded as critical the fact that it was "performances of an act on a trapeze" that were in question. Such a view would have had much in common with that of the Full Court of the Supreme Court, which Glass J.A. has rightly rejected. Nor is it easy to suppose that the element of "repeated performances" could have been thought by this Court to be of critical significance. It must be a most common occurrence for persons to whom s. 6(3A) clearly applies to be engaged in repetitive tasks, for instance the carriage of goods such as quarry products, perhaps many times a day, along the one route between two points. (at p676)

10. The remaining element, that of "indefinite duration", can also not serve to take the matter out of s. 6(3A). There is nothing in s. 6(3A) apt to exclude contracts of indefinite duration; certainly not its reference to the performance of work "exceeding ten dollars in value", which does no more than exclude contracts for the performance of work which is only of a trifling value. Both contracts of service and contracts for services may be of indefinite duration. Indeed, in Zuijs' Case itself the contract was held to be "A weekly hiring for an indefinite period to do a defined task..." and as such to exhibit "elements characteristic of a contract of service" (1955) 93 CLR, at p 569 . Neither in s. 6(3A) nor in the Act as a whole is there any justification for singling out contracts for services and in their case alone excluding those of indefinite duration. In Humberstone v. Northern Timber Mills (1949) 79 CLR 389 the contract between the parties was a contract for services of indefinite duration. Dixon J. described it as "a continuing contract of indefinite duration" (1949) 79 CLR, at p 403 , and see also per Latham C.J. (1949) 79 CLR, at pp 398-399 . Yet it is clear that in Humberstone their Honours would have regarded the legislation as applicable to the contract were it not that the contract preceded the commencement date of the legislation, which was prospective only (1949) 79 CLR, at pp 399, 403 (Latham C.J. (1949) 79 CLR, at p 398 also relying upon the existence of a disqualifying circumstance). The authority of Humberstone has not been questioned. The legislation in Humberstone was not relevantly distinguishable from s. 6(3A); it lacked only the exclusion of contracts for the performance of work of only trifling value. It follows that it cannot have been the element of indefinite duration which led this Court in Zuijs' Case to regard s. 6(3A) as inapplicable. (at p676)

11. What did lead this Court in Zuijs' Case to regard s. 6(3A) as "entirely inappropriate to the kind of question in this case" was its characterization of the contract as a contract of service. Having concluded that the parties were in the relationship of master and servant, it was clear that s. 6(3A) had no operation. Zuijs would fall within the definition of "worker" in s. 6 and had no need of the deeming provisions of s. 6(3A). Indeed, as Dixon J. pointed out in Humberstone's Case (1949) 79 CLR, at p 402 , it was with "an independent contractor" and not "an ordinary employee" that the sub-section was concerned. When in the joint judgment in Zuijs' Case it is said that "You cannot satisfy this condition by a contract of indefinite duration for repeated performance of an act on a trapeze", their Honours must be taken to have been doing no more than referring back to their earlier description of the parties' contract as "A weekly hiring for an indefinite period to do a defined task", a contract which they had concluded created a master and servant relationship. This was why s. 6(3A) was "entirely inappropriate to the kind of contract in question in this case". Zuijs' Case accordingly provides no ground for excluding from the operation of s. 6(3A) the contract as found in the stated case. (at p677)

12. The applicant was injured while riding in the New South Wales Solo Championship, held at the respondent's racetrack. What distinguished that occasion from others when the applicant was clearly enough performing work under the contract was that he owed his participation in this championship to the Australian Speedway Control Council, which nominated him as a contestant. Being a championship event, it was not for the respondent, the commercial operator of the speedway, to nominate contestants; it was for the Council, as the body controlling the sport in Australia, to select those who might compete. However it was expressly found, by par. 8(n) and (o), that the contract extended to include races such as this championship, conducted at the respondent's racetrack and in which it was the Council which selected the applicant as a participant. Although this question of the application of the contract to championship meetings will require further consideration in relation to question 2 of the case stated, for present purposes these findings conclude the matter. It follows that the first question must be answered No. (at p677)

13. The form of the second question invites the Court of Appeal to examine the evidence at first instance and, regardless of the facts as stated by the trial judge, to determine for itself whether there was any evidence which could have led his Honour to a conclusion favourable to the applicant regarding the application of s. 6(3A) of the Act. A majority of their Honours overcame the difficulty to which the form of this question gives rise by treating it as intended to raise for consideration only the question which their Honours had earlier directed should be asked of them: namely, whether, if the first question were answered No, there was evidence to support the material findings of fact made. Glass J.A. took a different view of question 2. He accepted the invitation implicit in it and, on examination of the evidence, discovered other evidence upon which, as he concluded, the trial judge could have found for the applicant. Unlike the majority, he accordingly answered question 2 Yes and would have set aside the award and remitted the case to the Commission. (at p678)

14. In my view, the majority were correct in their initial approach to the second question in the stated case. The procedure by way of stated case which s. 37(4) (b) of the Workers' Compensation Act provides for permits of a question which asks whether there was any evidence to support the findings of fact appearing in the case: Alexander v. Menary (1921) 29 CLR 371, at p 375 . It does not support a question in the form of the second question which invites the Court to determine for itself questions of fact: Reg. v. Rigby (1956) 100 CLR 146 . Faced with the form taken by the second question, their Honours, and counsel for the parties appearing before them, proceeded upon the footing that in substance what that question asked was whether there was evidence to support the material findings of fact made. The description given to the case stated by the judge who stated it strongly suggested that it was intended to do no more than ask a question in that form, that being the form of question which the Court of Appeal had previously formulated. In view of this and of the past history of the matter it was appropriate that, rather than reject the stated case, their Honours should treat the second question as confined within proper limits. I would so treat it on this appeal and would answer it as if it asked simply whether there was evidence to support the material findings of fact appearing in the stated case. (at p678)

15. The critical issue arising out of the second question is whether or not there was evidence to support the Commission's finding that the contract extended to the applicant's participation in championship meetings held at the respondent's speedway, at which competitors in particular races would be those selected by the Australian Speedway Control Council and not by the respondent. It was, of course, in such a race that the applicant was injured. (at p678)

16. It was, I think, open to the Commission to conclude from the evidence that the contract applied to all meetings conducted by the respondent at its speedway, including championship meetings. The applicant was, as a witness, far from articulate but from his evidence it emerged that what he wanted from the respondent was a guarantee of ample opportunity to use his skill as a rider at the respondent's speedway, while what the respondent wanted was the applicant's agreement to race at its speedway and not race elsewhere without its permission. The applicant's evidence was that he was asked by a representative of the respondent "Are you going to ride in the 1970 season here at Liverpool?" and he replied "Yes". He was then told "We guarantee you so many rides a meeting to ride here" and he replied "OK". What was agreed, according to the applicant, was that "he would ride at Liverpool Speedway and...not ride at any other track this season". It was, he said, "like an exclusion agreement between myself and the Liverpool Speedway that I would ride there and no where else without their permission". "That was the verbal agreement I had." (at p679)

17. It seems clear that nothing whatever was said about those meetings at the speedway which would be championship meetings; all reference to meetings at the speedway was entirely general. The parties were perfectly familiar with motor cycle racing as it was organized in Australia, in particular with the fact that it was the Council and not individual racetrack proprietors which alone could nominate contestants for championship races. Knowing this, it must have been implicit in the understanding arrived at by the parties that the respondent's undertaking to give the applicant starts at meetings could not apply to championship meetings. But this would have been the only respect in which championship meetings required to be dealt with differently from all other meetings. That they should otherwise be treated alike is, perhaps, not surprising since, selection of riders apart, the respondent's role in relation to them was the same as in the case of other meetings: they were conducted by the respondent at its speedway and the races were run under its control. It paid the starting fees and prize moneys. (at p679)

18. In these circumstances it was open to the Commission to conclude that the scope of the contract between the parties, answering the description of a contract falling within s. 6 (3A), was such as to apply to the occasion when the applicant received his injury. I would accordingly answer the second question Yes and would allow this appeal. (at p679)

MASON, AICKIN AND WILSON JJ. This is an appeal by the appellant, a professional speedway rider, against an order made by the Court of Appeal answering questions in a case stated by a member of the New South Wales Workers' Compensation Commission (Judge Colman Wall) under the Workers' Compensation Act, 1926 (N.S.W.), as amended ("the Act"). The appellant sustained serious injuries in an accident which occurred at the respondent's speedway, the Liverpool City Raceway, on 23rd December 1970 when he was riding a motor cycle in an event known as the New South Wales Solo Championship. He made an application for determination against the respondent under the Act, claiming that he was an employee of the respondent and, alternatively, that he was a deemed employee of the respondent pursuant to s. 6 (3A) or s. 6 (14C). The proceedings were heard in 1972 when the judge held that, although the appellant was not employed under a contract of service, he was a deemed worker pursuant to s. 6 (3A). On this footing his Honour made an award in favour of the appellant for weekly compensation. (at p680)

2. The respondent appealed from this award by way of case stated. The appeal did not come before the Court of Appeal until August 1975 when the Court, after hearing what counsel proposed to argue, returned the case to his Honour for restatement. The reformed case next came before the Court of Appeal on 28th October 1976 when it appeared that the judge had refused to include in the case a question whether his findings of fact were supported by the evidence. On 23rd November 1976 the Court again returned the case to the judge with this instruction:

"The findings of fact set out in the stated case should include all those findings upon which the Commission reached its ultimate conclusion that the injury of the applicant arose out of or in the course of his deemed employment with the respondent. The stated case should then pose for decision by this Court the following questions: 1. Did the Commission err in law in holding that on the findings of fact made the applicant was entitled to an award against the respondent?

2. If the answer to the first question is 'no', is there evidence to support the material findings of fact made?" (at p680)

3. The judge stated a case dated 28th November 1977 which he described as "Case Stated Pursuant to Directions of Court of Appeal". The recitation of facts which follows is taken from the case stated. (at p680)

4. The appellant, who had had professional experience as a speedway rider in England in 1970, returned to Australia in October of that year and resumed his professional activities in this country. Between the date of his return and the date of the accident he participated for gain in motor cycle races at several tracks, including the Liverpool City Raceway which was at all material times conducted by the respondent, and won prize money. He participated in races for several promoters, including the respondent. (at p681)

5. The appellant was not selected by the respondent to ride in the New South Wales Solo Championship in which he was injured. His selection was made by the Australian Control Council ("the Council"), a body which regulates speedway motor cycling in Australia. It sets the dates and the conditions for certain championships and it nominates the riders for those events. The events which it controls take place at various speedways which have agreed to abide by rules prescribed by the Council. The Liverpool City Raceway was one such speedway. The Council did not enter into contractual relationships with the motor cyclists who participated in events nominated by the Council. There was no contractual relationship between the Council and the appellant. The Council did no more in relation to the appellant than to nominate him as a rider in the event in which he was injured. The prize money and the riding fee for that event were provided by the respondent. (at p681)

6. The appellant was to be paid a starting fee by the respondent for appearing in the championship and, in addition, payments were to be made according to the success achieved by the appellant in the event. (at p681)

7. The critical paragraphs in the stated case are as follows:

"8. (m) There was a contractual relationship between the respondent and the applicant. This relationship arose from discussions between persons acting on behalf of the respondent, namely, Raymond and Oliveri and the applicant. In such discussions, it was agreed between the respondent and the applicant that the applicant was to have starts at the meetings held at the respondent's Speedway, and that the applicant was to be paid a fee for each race at the respondent's Speedway in which he participated; and that he furthermore was to be paid prize money in accordance with his success in gaining prize winning places in the races conducted at the respondent's Speedway. (n) It was a term of the said agreement that the applicant was to be paid a fee, and in the appropriate case, prize money in any event in which he rode at the respondent's Speedway, whether he was chosen to ride by the Speedway or was nominated by the Australian Control Council was to be paid (sic). (o) The contract between the respondent and the applicant was one to perform work, the work being the attendance at the Speedway and the riding in races in accordance with the programme prepared by the Speedway, either on its own initiative or subject to the direction of the Australian Control Council, the work further being incidental matters such as preparing motor cycles in the pits, riding in parades and wearing of insignia."

Paragraph 9 was in these terms:

"His Honour held: - (a) That the applicant was not employed etc. by the respondent under a contract of service. (b) That he was not a deemed worker pursuant to s. 6 (14C) of the Workers' Compensation Act. (c) That the applicant was a deemed worker pursuant to s. 6 (3A) of the said Workers' Compensation Act."

The questions asked by the stated case are:

"(a) Did His Honour err in holding that on the found facts the applicant was a deemed worker pursuant to s. 6 (3A) of the Workers' Compensation Act 1926, as amended?

(b) Was there any evidence upon which His Honour could find that the applicant was a deemed worker pursuant to s. 6 (3A) of the Workers' Compensation Act?" (at p682)

8. The Court of Appeal held that, although there was evidence of an agreement between the appellant and the respondent, there was no evidence that this agreement applied to events in which he participated by reason of his nomination by the Council, in particular the event in which the appellant was injured. Consequently, there was, in the view of the Court of Appeal, no evidence to support a finding that at the relevant time the appellant was a deemed worker pursuant to s. 6 (3A) of the Act. However, Glass J.A. thought that the evidence before the Commission was sufficient to support a contract different from that found by the primary judge and that such a contract, if found to exist, would sustain the conclusion that the appellant was a deemed worker pursuant to s. 6 (3A) and entitled as such to compensation. The other members of the Court (Reynolds and Samuels JJ.A.) considered that the case did not raise this question. In the result, the Court answered the questions asked, (a) Yes; and (b) No, and ordered that the award be set aside and that in lieu thereof an award be made in favour of the respondent. (at p682)

9. The appellant's first submission is that there is ample evidence that it was a term of the agreement between the parties found by the Commission that the appellant would be paid by the respondent for participation in events at the Liverpool City Raceway in which he was selected by the Council. Mr. Coombs for the appellant relies on the appellant's oral evidence before the Commission in which he deposed to a conversation in October 1970 with Mike Raymond, the manager of the respondent, and Frank Oliveri, the chairman of directors of the respondent. According to the appellant's evidence he agreed to ride exclusively for the respondent in the season which had then commenced, the respondent agreeing through Raymond to include him in meetings which it promoted, to guarantee him a specified number of starts and to pay him a starting fee for every race in which he participated and prize money according to the success which he obtained. No reference at all was made to races or meetings at the Liverpool City Raceway conducted by the respondent at the instance of the Council. According to other evidence the Council from time to time nominated a particular raceway at which championships and other races, for which the Council selected the riders, were to be held. However, as the stated case indicates, the Council did no more than nominate the raceway and select the riders on these occasions. The races were controlled by the particular raceway and it paid starting fees and prize money. (at p683)

10. It is, we think, inescapable that the October agreement deposed to in evidence by the appellant did not extend to championships and other races in which the Council selected the riders. First, in the oral discussion, no mention was made of races of this kind. Secondly, the substance of the contract which emerges from the appellant's evidence was that the appellant promised to ride exclusively for the respondent, except in Council races at other speedways, in return for the respondent's promise to guarantee him rides in races in which it selected the participants and to pay him starting fees and prize money. The conclusion to be drawn is that events in which the Council selected the participants lay outside the agreement which arose from the oral discussion. The effect of the agreement was that the appellant was at liberty to participate when selected by the Council in its races at other speedways whilst the respondent did not, as indeed it could not, assume an obligation to guarantee the appellant's starts in Council races in which the participants were selected by the Council itself. (at p683)

11. Mr. Coombs submits that it is not legitimate to have regard to the evidence that the respondent guaranteed that it would provide the appellant with a specified number of rides. He points out that the agreement as found by the Commission and expressed in pars. 8 (m) and (n) did not include any term whereby the respondent guaranteed the appellant a right of participation in races. He suggested that, as the primary judge was at liberty to accept part of the appellant's evidence and to reject other parts, it must be taken that his Honour rejected that part of the appellant's testimony that related to the guarantee that he would participate in races promoted by the respondent at the Liverpool City Raceway. (at p684)

12. Even if this suggestion be accepted, we do not think that it answers the criticism. The fact remains that in the oral discussions no mention was made of Council races. But in any event, we do not consider that the appellant's evidence supported the agreement expressed in pars. 8 (m) and (n) unless that agreement also included a term by which the respondent guaranteed the appellant a specified number of rides for, as we read the evidence, the guarantee was central to the agreement which the appellant was asserting and there was no rational reason why it should be excised from the remainder of what was discussed. The existence of the term relating to the guaranteed number of rides was, as the Court of Appeal thought, fatal to the existence of an agreement applying, as the primary judge found, to Council races conducted at the Liverpool City Raceway. It would be irrational to suppose that the respondent was guaranteeing a right of participation in events in which it had no power to select the riders and equally irrational to suppose that the appellant would have understood such a guarantee to have been offered. (at p684)

13. This conclusion disposes of the appeal unless we accept the minority view of Glass J.A. that the award can be supported on the footing that there was another contract, not found by the primary judge. His Honour thought that the evidence, though not supporting the agreement found in pars. 8 (m) and (n) of the case, was capable of supporting an ad hoc agreement governing the appellant's participation in the races held at the Liverpool City Raceway on 23rd December 1970. (at p684)

14. However, as Reynolds and Samuels JJ.A. observed, no such contract was found by the primary judge, no mention is made in the case stated of such a contract and there is no indication that the appellant's case was ever presented on this footing. Samuels J.A. has related in some detail the history of the case stated. From this history it appears that at no time on the three occasions when the matter was before the Court of Appeal was any attempt made by the appellant to argue that the evidence supported an ad hoc contract. What is more, the form of the stated case and the absence of any finding on the question indicate that it was not an issue before the Commission. In these circumstances the majority in the Court of Appeal considered that question (b) in the case stated did not properly raise for consideration the question whether the ultimate finding that the appellant was a deemed worker could be supported on findings not made by the Commission. (at p685)

15. In our opinion the transcript of proceedings in the Commission does not disclose any evidence of an ad hoc agreement between the parties whereby the appellant promised the respondent that he would ride for it in the championship on 23rd December at the Liverpool City Raceway. We would not discount the possibility that the circumstances relevant to the appellant's participation on that occasion might, if they had been fully explored in the proceedings before the Commission, have yielded some evidence of a contract entitling the appellant to sue the respondent for starting fees and prize money. But the evidence actually given before the Commission was not directed to the existence of an ad hoc contract of this kind, let alone a contract whereby the appellant promised the respondent that he would ride for it on 23rd December. There was no evidence of a conversation between the appellant and Raymond relating to the appellant's participation in the championship. (at p685)

16. We are therefore left with the suggestion that when the appellant presented himself at the meeting he was accepting an offer which the respondent made when it published its programme containing the appellant's name together with those of other riders who were to race against each other in the twenty heats scheduled in the programme. We do not consider that the evidence discloses an offer which was capable of acceptance by the appellant presenting himself at the meeting. And even if one takes the view that there was an offer by which the respondent became bound to pay the starting fee in the event that the appellant participated in a particular race, we are by no means satisfied that one could describe the resulting contract as one whereby the appellant promised the respondent that he would ride in the event. The suggested existence of an ad hoc contract of this kind is in our view mere conjecture and speculation. (at p685)

17. The procedure adopted by the respondent to bring the matter to the Court of Appeal was that of case stated under s. 37 (4) (b). No appeal was brought under s. 37 (4) (a). We are therefore unable to accept that the procedure adopted was, as Glass J.A. thought, a hybrid of the two procedures. The statute simply makes no provision for such a hybrid. In any event, it is abundantly clear that what came before the Court was a case stated, not an appeal by way of notice of motion. The character of the case stated might, with a greater appearance of accuracy, have been described as a hybrid between an advisory case stated and an appeal by way of case stated. The difficulty in accepting this notion is that there is no scope for an advisory case after the Commission has determined the proceedings before it. After such a determination, all that then remains is the possibility of an appeal under s. 37 (4) (a) or an appeal by way of case stated under s. 37 (4) (b). (at p686)

18. It is instructive to recall what Dixon J. said in Smith v. Mann (1932) 47 CLR 426 , with reference to s. 37 (4) of the Act as it had been amended in 1929. Section 37 (4) was then in the same terms as the present s. 37 (4) (b) except that it omitted the reference to the admission or rejection of evidence. Dixon J. observed that the subsection authorized two kinds of proceeding by way of case stated: (a) a special case stated by the Commission before any order or award is made designed to obtain from the Supreme Court rulings on questions of law by which the Commission must be governed in the pending proceedings; and (b) a case stated after the making of an order or award designed to produce a reconsideration of the order or award. His Honour said (1932) 47 CLR, at p 446 that the award or order of the Commission "concludes the matter, except in so far as the award or order may be affected by the decision of the Supreme Court upon the case stated. Accordingly, the statement of a case after award becomes a means of invoking the jurisdiction of the Supreme Court so that it may revise or reconsider . . . the determination of the Commission. If the decision of the Supreme Court upon any of those questions means that the order or award of the Commission was erroneously made, that order or award can no longer remain in operation as a determination of the proceedings before the Commission." (at p686)

19. His Honour went on to say that in the case then under consideration the Supreme Court so decided the questions of law in the case as to support the order of the Commission, and then made the comment - "Thus the order of the Supreme Court finally concluded the rights of the appellant. It was final and not advisory." (at p686)

20. In Peterson v. Coleman (1938) WCR 73, at p 76 Rich J., speaking for the Court, made these comments in relation to the form in which an appeal by way of case stated should be presented:
"The Commission should state the ultimate facts proved or admitted and the question of law which emerges from its finding of fact. What a case stated contains must necessarily depend on the questions which have arisen or which it is intended to submit. But, as was pointed out in Smith v. Mann (1932) 47 CLR 426 , the provisions of s. 37 (4) now cover the statement of a case the object of which is to obtain the reconsideration by the Supreme Court of the questions of law upon which the determination of the Commission depends. This makes it highly desirable that the case should contain distinct findings of fact in relation to the actual occurrences and circumstances upon which the Commission's conclusions or inferences are based as well as distinct statements of those inferences." (at p687)

21. There is nothing in these statements to suggest that it is appropriate in an appeal by way of case stated to ask the question whether the award which has been made determining the proceedings in the Commission can be supported on findings which the Commission did not make and was not asked to make. Nor does the decision in Zuijs v. Wirth Bros Pty. Ltd. (1955) 93 CLR 561 support what is sought to be done. There, this Court held that the Supreme Court had power under s. 37 to remit the matter back to the Commission and it proceeded to remit the case to the Commission so that it could determine whether in fact there was a contract of service as alleged by the appellant. However, the Commission had made an award in favour of the respondent, finding that there was no contract of service, misdirecting itself in law on that issue. The remitter was made to enable the Commission to reconsider an issue on which it made a finding but in so doing erred in law. (at p687)

22. We would not wish it to be thought that the appellant would have been without a remedy had the Commission failed to make a finding that there was an ad hoc contract governing his participation in the championship on 23rd December, had such a case been presented by the appellant to the Commission. In that event the Commission would have erred in law had it failed to deal with the appellant's case. The error would have grounded an appeal under s. 37 (4) (a) or a case stated under s. 37 (4) (b). However, as no such case was presented to the Commission the learned judge made no error of law in failing to deal with the suggestion now made that there was an ad hoc contract and in failing to find such a contract. (at p687)

23. In the result, we would dismiss the appeal. (at p687)

MURPHY J. The Workers' Compensation Commission of New South Wales (Chairman Colman Wall) made an award in Mr Hay's favour on the basis that the case fell within s. 6 (3A) of the Workers' Compensation Act, 1926 (N.S.W.), which (omitting parts not now material) provides:
"Where a contract to perform any work exceeding ten dollars in value . . . is made with the contractor, . . . the contract shall, for the purposes of this Act, be deemed to be a worker employed by the person who made such contract with the contractor."
The learned chairman, who is one of the most experienced workers' compensation judges in Australia, apparently had no difficulty in coming to the conclusion that this case fell within the plain words of s. 6 (3A). (at p688)

2. In the case stated, the Commission's findings included:

"(m) There was a contractual relationship between the respondent and the applicant. This relationship arose from discussions between persons acting on behalf of the respondent, namely, Raymond and Oliveri and the applicant. In such discussions, it was agreed between the respondent and the applicant that the applicant was to have starts at the meetings held at the respondent's Speedway, and that the applicant was to be paid a fee for each race at the respondent's Speedway in which he participated; and that he furthermore was to be paid prize money in accordance with his success in gaining prize winning places in the races conducted at the respondent's Speedway. (n) It was a term of the said agreement that the applicant was to be paid a fee, and in the appropriate case, prize money in any event in which he rode at the respondent's Speedway, whether he was chosen to ride by the Speedway or was nominated by the Australian Control Council was to be paid.

(o) The contract between the respondent and the applicant was one to perform work, the work being the attendance at the Speedway and the riding in races in accordance with the programme prepared by the Speedway, either on its own initiative or subject to the direction of the Australian Control Council, the work further being incidental matters such as preparing motor cycles in the pits, riding in parades and wearing of insignia." (at p688)

3. It was open to the Commission to draw, as it did, the inference that this agreement extended to championships and other races conducted at the respondent's raceway in which the Council selected the riders. This was entirely consistent with the core of the agreement that Mr. Hay would ride exclusively for the respondent (that is at its raceway) except for Council-controlled races at other speedways (this exception was necessary to maintain Mr. Hay's skill and status). The respondent claims that evidence that the agreement contained a guarantee to Mr. Hay of a specified number of rides is not consistent with the Commission's findings. I disagree. If the specified number of rides in Council-controlled races were not available because the Council did not select Mr. Hay, the respondent could make up the number with rides in races which were not Council-controlled, otherwise the respondent would be liable to Mr. Hay for its failure to meet the guarantee. (at p689)

4. In my view, the Commission's finding is not at all irrational. A guarantee of work is often made where the right to do the work depends on the permission, consent, or selection of another party. This may introduce a condition on the right to remuneration, or it may expose the guarantor to liability for damages. It does not render the promise of no effect. (at p689)

5. The evidence shows that the agreement was that the payment of a starting fee was for every start at the Liverpool Raceway. There was no evidence that this did not extend to include races controlled by the Council. The fact that the evidence of the agreement did not specifically deal with Council-controlled races does not compel any inference that the agreement did not extend to them. It is consistent with the view, taken by the Commission, that all Mr. Hay's starts at the Raceway were covered by the agreement. (at p689)

6. At the time of Mr. Hay's injury, the evidence shows that, having been nominated by the Council, he was riding for the respondent on the basis that it was to pay him a starting fee and, if he was successful, prize money. This was entirely in accordance with the course of dealing between the parties. (at p689)

7. The Commission's findings were open to it on the evidence and justified its ultimate conclusion. In an appeal on a case stated, it is not the function of the Court of Appeal, nor of this Court, to draw conclusions of fact. (at p689)

8. The appeal should be allowed. (at p689)

Orders

Appeal dismissed with costs.