Mafulu Pty Limited v Mather

[1989] HCATrans 214

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S2 of 1989

B e t w e e n -

MAFULU PTY LIMITED

Applicant

and

ROBERT JOHN MATHER

Respondent

Application for special leave
to appeal

MASON CJ TOOHEY J GAUDRON J

Mafulu

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 SEPTEMBER 1989, AT 9.35 AM

Copyright in the High Court of Australia

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MR B.J. GROSS, QC:  May it please the Court, I appear with my

learned friend, MR G.F. LITTLE, for the applicant.

(instructed by Nevill & Edwards)

MR R.E. HOTCHKISS:  I appear for the respondent, if the Court pleases

(instructed by Carroll & O'Dea)

MASON CJ: Yes, Mr Gross?

MR GROSS:	May it please the Court. This case is concerned
with working director cases under the WORKERS'
COMPENSATION ACT.
MASON CJ:	We are familiar with what the case is concerned
so you can proceed precisely to the explanation
as to why these issues should attract the grant of
special leave.
MR GROSS:	There are the following issues which this case
presents: one, what is the minimum level of
evidence from which it can be found that a
master/servant relationship exists between a company
and its director.

MASON CJ: That does not look like a special leave point,

does it?

MR GROSS: Not framed in those terms unless it is subject to

the two further matters I am now about to put:

secondly, whether the bare belief or assumption made

by a director that he is a worker employed by the

company is sufficient even if such belief or

assumption is, in fact, shared by the other directors.

MASON CJ: That sounds even less like a special leave point.

MR GROSS: Well, in our submission, it is an important matter

because cases like this have to be determined on

evidence and by reference to criteria. What occurred

in this case at all levels was acceptance of the

proposition that a bare belief or a bare assumption

that the relationship exists suffices to show that
there is such a relationship.	The bare subjective

intention on the part of the directors of the

family company that the director should be a worker

was taken as being sufficient for that relevant purpose.

There was an absence of any objective indicia of that

relationship.

In our submission, it comes down to two matters:

whether, what is required is objective indicia as

distinct from prior subjective intention and,

secondly, whether a belief or assumption, even if it

is a shared assumption with the other directors, is

sufficient to show the contractual relationship which

is the foundation of"belief" under the WORKERS r.

COMPENSATION ACT.

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Your Honours, we would accept that this is a

small level of claim in that it is concerned with

five months of total incapacity for an injury

occurring in 1983, some years ago. However, the

process of reasoning at all levels, in our

submission, indicates that the Chief Judge of the

Compensation Court and the Court of Appeal have

accepted as being sufficient to show the worker

relationship in this context matters which merely

go to what, in a sense, is inside the heads of

particular persons. In our submission, more needs

to be shown.

Can I very briefly take Your Honours to the

very bare evidence which was raised on this point?

MASON CJ:  But how is that going to help us, Mr Gross?

MR GROSS: Perhaps if I can sunnnarize it Your Honours will

see. Prior to 1983 Mr Mather and his wife had been

partners in a shearing contracting business. Some time

before 1983, after a discussion with an accountant,

there was further discussion within the family,

that is Mr and Mrs Mather and their two sons, as

to whether or not Mr and Mrs Mather were to be

employees of the company. The evidence is that

Mr Mather continued to act on this basis thereafter. company and would be deemed as employees; "deemed"

to be an expression used by the witness. This

decision, on the evidence, was made by Mr Mather

and everyone agreed with that.

Now, in the Court of Appeal the main argument

put was that "deemed" involved a hypothesis which

existed regardless of the factual truth of the

matter. The learned President dismissed this

argument on the basis that the word "deemed" was

used in a lay sense of "assumed" or "classified"

rather than in some technical legal sense. There

was no evidence beyond this deeming or this intent.

The other evidence clearly indicated the business going

on precisely as it had gone on while they were a

partnership.

Your Honours, the findings in the Court of Appeal

are merely findings concerning the sufficiency of

evidence, a matter which, in the context of the

particular facts, may not appeal to Your Honours as

being,per se, a matter of importance that requires

review. However, in our submission, it is common in

cases like this, particularly in rural areas or with
persons lacking sophistication, that there is a
belief or assumption but nothing further occurs.

In our submission, something more is required to show

that, in fact, the director is the servant rather

than it being the other way around where the company

is the servant and the master is, in fact, the director

who is formally the sole trader or practising partnership.

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In our submission, the reasoning which

is necessarily implicit in these findings

concerning sufficiency do reveal the error of the

type that we have defined and present the issues

of the type we have suggested.

That completes our submissions.

MASON CJ:	Mr Gross, I just wanted to ask you one question.
In the affidavit in support of this application
emphasis is given to a challege to the correctness
of the earlier decision of the Court of Appeal in
ASSOPARDI's case.
MR GROSS:	Yes, Your Honour.
MASON CJ:	Now, you have not said a word about that.
MR GROSS:	No, Your Honour.  We are aware of the fact that
this Court, since the time when we conrrnenced
proceedings, has passed upon the correctness of AZZOPARDI although in short detail.
MASON CJ:	You are referring to EDELSTEIN's case?
MR GROSS:	Yes, Your Honours, and that had discouraged us from pursuing that line and it was perceived -
MASON CJ:	I am not suggesting that you should agitate the
point at all but I wanted to make this point, that when we come to look at the papers in support of an
application for special leave, needless to say
we give attention to the case as it is expounded in the affidavit in support of the application and that may or may not involve the Court in undertaking some sort of research. In this case, we did look for
EDELSTEIN's case and it seems to me that if parties
prepare an affidavit in support of an application for
special leave setting out the grounds on which the
application is to be presented and subsequently come to the conclusion that they are not going to press one or more of those grounds, something ought
presented to the Court so as to ensure that the to be done by way of supplementing the material
Court does not waste its time in pursuing a point
before the hearing takes place.
MR GROSS:	Yes, Your Honour, we accept that a supplementary
affidavit or notification to the Court should have
been made although what occurred here was that the
realization of the impact of EDELSTEIN's case was
long after the affidavit and, to a degree, long after
EDELSTEIN's case.
MASON CJ~	Yes.  But now, there is another point· I wanted to
raise with you.  Is it not suggested in the affidavit
in support that the subsequent decision in HAINES
case threw some doubt on the correctness of AZZOPARDI's

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case or, at least, that in HAINES' case there was a

suggestion that AZZOPARDI might require reconsideration?

I am referring to page 47 of the application book,

paragraph 6, about line 35 - 37.

MR GROSS:  Yes.

MASON CJ: Now, I looked at HAINES' case. It did not seem to

me there was anything in HAINES' case that suggested

that AZZOPARDI might require reconsideration.	Now,
I may be wrong in that but having read it that
is the view I formed about HAINES' case.	But what I

want to do is to draw attention to the need for

accuracy in affidavits that are filed in support of

special leave applications and that is the only

comment I wish to make.

MR GROSS:	Yes. Your Honour, I accept that fully, of course, but may I point out that paragraph 6 seems rather to be concerned with describing the curial
history of consideration of AZZOPARDI's case rather
than, per se, mounting an argument.
MASON CJ:	I accept that and that would be appropriate if the point were to be raised but, at least, when one is
reciting history one should recite that history
accurately.
MR GROSS:	Yes, Your Honour, we accept that.
MASON CJ:	The Court need not trouble you, Mr Hotchkiss.

The substantial question in this case is

whether the evidence could support the finding

that there was a contract of service between the

respondent and the applicant. It is not a question

which raises a matter of general principle and

therefore does not justify the grant of special

leave to appeal.

The application is therefore refused.

Yes, Mr Hotchkiss, are you going to apply for

costs?

MR HOTCHKISS:	Yes, Your Honour.
MASON CJ:	Yes. You do not oppose that, Mr Gross?
MR GROSS:	No, Your Honour.

MASON CJ: The application is refused with costs.

AT 9.47 AM THE MATTER WAS ADJOURNED SINE DIE

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