John Holland Pty Ltd v Lewis - [2004] NTCA 9

[Back to Main List] [Back to NTCA & NTCCA 2004 List] John Holland Pty Ltd v Lewis [2004] NTCA 9

PARTIES: JOHN HOLLAND PTY LTD

RAY LEWIS

TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: AP 1 of 2004 (20018624)

DELIVERED: 9 June 2004

HEARING DATES: 18 May 2004

JUDGMENT OF: ANGEL, MILDREN AND RILEY JJ

CATCHWORDS:

WORKERS COMPENSATION - Appeal - Onus of proof - Application of Herbert v KP Welding Constructions Pty Ltd (1995) 125 FLR 299 - Whether deductions for taxation not made because of shortness of time - Definition of a "worker" for the purposes of the Work Health Act.

Cases:

Herbert v KP Welding Constructions Pty Ltd (1995) 125 FLR 299
Thompson v Groote Eylandt Mining Company Limited (2003) NTCA 05
Stewart v Dillingham Constructions Pty Ltd (1974) VR 24

Legislation:

s 127 Work Health Act

REPRESENTATION:

Counsel:
Appellant: A.R. Harris QC
Respondent: S.R. Southwood QC

Solicitors:
Appellant: Hunt & Hunt
Respondent: Priestley Walsh

Judgment category classification: B
Judgment ID Number: ril0412
Number of pages: 16

ril0412

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

John Holland Pty Ltd v Lewis [2004] NTCA 9
No AP 1 of 2004 (20018624)

BETWEEN:

JOHN HOLLAND PTY LTD
Appellant

AND:

RAY LEWIS
Respondent

CORAM: ANGEL, MILDREN AND RILEY JJ

REASONS FOR JUDGMENT

(Delivered 9 June 2004)

ANGEL J:
[1] I agree that the appeal should be allowed and that the judgment of the learned magistrate at first instance should be restored.
[2] In particular I agree that the learned judge on appeal erred in holding that the legal burden of proof reverted to the appellant to prove on the balance of probabilities that the respondent was being paid on a cash basis at the time of his injury and that the appellant had not discharged this onus of proof.
[3] Illegality was never pleaded by the appellant; in its answer, the appellant merely traversed the respondent's allegation that he was a worker. The learned judge said, inter alia, "The objective facts were not sufficient to establish, on the balance of probabilities, that there was an intention to defraud the tax office". Even assuming this to be so, it is, with respect, not to the point. The onus was on the respondent from first to last to establish he was a worker at the time of the accident. The learned magistrate after giving detailed and careful consideration to the evidence found that the respondent had not established on the balance of probabilities that he was a worker as defined. That was a finding open on the evidence which ought not to have been disturbed on appeal.
[4] In reaching his conclusion the learned magistrate clearly had regard to the circumstance that the respondent was not employed by the appellant, but by the contractor to the appellant, one Zagorianos. Being a stranger to the contract between Zagorianos and the respondent, the…

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.

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Details

Case: [2004] NTCA 9
Decision Date: 09 June 2004

CaseChat Overview and Summary

The case of John Holland Pty Ltd v Lewis involved a dispute over whether Ray Lewis, the respondent, was a "worker" under the Work Health Act at the time of his injury, which would entitle him to workers' compensation from John Holland Pty Ltd, the appellant. The Court of Appeal of the Northern Territory was tasked with determining whether the Supreme Court had correctly overturned the Work Health Court's finding that Lewis was not a worker. The central legal issue was whether the onus of proof was correctly assigned by the Supreme Court when it held that the appellant should prove that Lewis was being paid on a cash basis, contrary to the statutory definition of a "worker."

The Court of Appeal held that the Supreme Court erred in its interpretation of the law. The appellate court found that the burden of proof was on Lewis to demonstrate that he was a worker under the Act. The Court of Appeal concluded that the learned magistrate had correctly assessed the evidence and found that Lewis had not discharged his burden of proving that he was a worker. The appellate court found that the magistrate's decision should not have been overturned, as it was based on a thorough consideration of the evidence and was open to the court on the material before it.

The Court of Appeal allowed the appeal and restored the original judgment of the Work Health Court. The Court ordered that Lewis was not a worker for the purposes of the Work Health Act and consequently was not entitled to workers' compensation from John Holland Pty Ltd. Additionally, the Court ordered that Lewis pay the costs of the appeal and the costs in the court below.

Orders