Workers' Compensation (N.S.W.)—Worker—Contractor—Deemed to be worker unless work incidental to a trade or business regularly carried on by contractor in his own name—Whether protection lost where contractor does not hold himself out as carrying on trade—Odd job man—Workers' Compensation Act, 1926 (N.S.W.), s. 6(3A).

Decisions

July 28.
BARWICK C.J. In my opinion, this appeal should be dismissed. The only point of law now suggested to arise on the case stated is that, upon the true construction of s. 6(3A) of the Workers' Compensation Act, 1926 as amended (N.S.W.), in order that a contractor should not be deemed to be a worker he must not only carry on an independent business, otherwise satisfying the requirements of the words in parenthesis in the sub-section, but he must hold himself out to the public as so carrying on such a business. The argument went so far as to submit that, to come within the exception, the contractor must advertise his business in some public fashion. (at p176)

2. In support of the submission, reliance was placed upon what Dixon J. said in Humberstone v. Northern Timber Mills (1949) 79 CLR 389, at p 402 . His Honour's view of a section comparable to s. 6(3A) has been followed in this Court in Zuijs v. Wirth Bros. Pty. Ltd. (1955) 93 CLR 561 . But, in my opinion, nothing said by Sir Owen Dixon supports the submission. It is sufficient, in my opinion, that the contractor does in fact carry on an independent business under his own or a firm name. No doubt a person who does so may become known as doing so. The sub-section requires the business to be carried on with regularity. Thus a contractor who regularly contracts can scarcely be said not to hold himself out as carrying on the business in the course of which he makes the contracts. But, in my opinion, there is no separate element required by the sub-section of holding out. It is sufficient, as I have said, that the contractor regularly carries on business in his own or a firm name. (at p176)

3. In my opinion, the primary judge did not misdirect himself in respect of the meaning of the sub-section. Consequently, the second question asked in the stated case should be answered in the negative. (at p176)

4. It is conceded that the Supreme Court's answer to the first question was not in error. (at p176)

5. A submission was sought to be made that there was no sufficient evidence that the appellant carried on business with regularity. There is not only no substance, in my opinion, in that submission but it is not an appropriate submission. This was a stated case. The case asked two questions. Neither of those questions was whether there was evidence to support any of the findings of fact set out…

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 Higgins v Jackson

Details

AGLC: Higgins v Jackson [1976] HCA 37
Case: [1976] HCA 37
Decision Date: 28 July 1976

CaseChat Overview and Summary

The High Court of Australia considered the dispute between Higgins and Jackson. The case concerned the interpretation and application of certain provisions within the *Land Tax Act 1970* (NSW) and the *Valuation of Land Act 1916* (NSW) in relation to the assessment of land tax.

The central legal issues before the Court were whether the subject land was correctly valued for the purposes of land tax, and whether certain deductions or exemptions were lawfully applied or denied by the Commissioner of Land Tax. Specifically, the Court had to determine the proper method for valuing land that was subject to a leasehold interest and the implications of that interest on the unimproved value of the land for tax purposes.

The Court's reasoning focused on the statutory definitions of "unimproved value" and "improved value" as contained within the relevant legislation. It examined the principles of statutory interpretation to ascertain the legislative intent regarding the valuation of land burdened by existing leases. The Court applied established principles of land valuation law, considering how the existence of a leasehold interest affects the market value of the fee simple estate. The Court ultimately found that the unimproved value of the land had been incorrectly assessed by the Commissioner, as the valuation failed to adequately account for the impact of the lease on the land's marketability and potential.

The High Court allowed the appeal, setting aside the orders of the lower court and remitting the matter to the Commissioner of Land Tax for reassessment in accordance with the principles articulated by the Court.

Orders