Musija v Kresa
[2010] VSCA 163
•24 June 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3735 of 2009
| JOHN MUSIJA | First Appellant |
| and | |
| ALLIANZ AUSTRALIA WORKERS’ COMPENSATION (VIC) LIMITED (ACN 059 835 791) | Second Appellant |
| v | |
| RUDOLF KRESA | Respondent |
---
| JUDGES | NEAVE and REDLICH JJA and HANSEN AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 20 April 2010 |
| DATE OF JUDGMENT | 24 June 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 163 |
| JUDGMENT APPEALED FROM | Kresa v Musija (Unreported, County Court of Victoria, Judge Shelton, 30 September 2008) |
---
ACCIDENT COMPENSATION – Respondent injured when performing carpentry work for first appellant – Whether respondent a ‘worker’ – Accident Compensation Act 1985, s 5 – Judge did not wrongly rely on circumstances of alleged worker’s earlier engagement to characterise later engagement – Judge did not take account of irrelevant factors – Reasons not inadequate – Appeal dismissed.
---
| Appearances: | Counsel | Solicitors |
| For the Appellants | Mr J J Noonan SC with Mr G K Coldwell | Wisewould Mahony |
| For the Respondent | Mr M O’Loghlen QC with Mr C A Miles | Holding Redlich |
NEAVE JA
REDLICH JA
HANSEN AJA:
The respondent, Rudolf Kresa, seriously injured his left hand while doing carpentry work on a house being built by the first appellant, John Musija. Mr Kresa sought compensation for his injury under the Accident Compensation Act 1985 (the ‘Act’). The learned trial judge made a preliminary decision[1] that Mr Kresa was a ‘worker’ employed under a contract of service, within the meaning of s 5 of the Act.[2] The appellants now appeal from that preliminary decision under s 52 of the Act.
[1]County Court Civil Procedure Rules 2008, r 47.04.
[2]It was not argued on behalf of Mr Kresa that although he was an independent contractor he was to be deemed to be working under a contract of service by virtue of s 8 or s 9 of the Act. In his closing address counsel for the appellants argued that neither of these sections applied.
The appellants contend that his Honour erred in his application of the criteria relevant to determining whether Mr Kresa was, at the time he sustained his injury, a ‘worker’ within the meaning of the Act. They also claim that his Honour’s reasons for that conclusion were inadequate. Both these issues are said to fall within s 52 because they were questions of law ‘raised during the proceedings’ in the County Court.
Background
Mr Kresa was born in Czechoslovakia (as it then was) in 1946 and migrated to Australia in 1985, bringing with him a trade qualification in carpentry. Between 1985 and 1989 he worked mainly as a plasterer, but also did some carpentry work.
In 1989 he moved to Queensland after injuring his Achilles tendon. He continued working as a plasterer but again did some carpentry work until his return to Victoria in 1994. After his return, Mr Kresa had difficulty obtaining employment and was in receipt of unemployment benefits. When he was introduced to Mr Musija by his son, Radin Kresa (who lived next door), in May 2004, Mr Kresa was looking for any type of work.
It was at the site where Mr Musija was building his own home that Mr Kresa sustained his injuries. Initially Mr Kresa did some plastering at the site. Mr Musija had obtained two quotes from plasterers which he considered too high. Mr Kresa’s quote of $6,000 (approximately one third of which represented labour costs, the balance representing the cost of materials) was much lower than the $16,700 and $10,000 quotes received from other plasterers, and was accepted by Mr Musija.
There was no written agreement between the parties, as to the terms of the plastering contract. Mr Musija purchased the materials which Mr Kresa said he needed and paid him the portion of the quote representing the labour costs. The work was performed by Mr Kresa, without incident, over the next two to two and a half weeks.
At about the time Mr Kresa completed the plastering work, the carpenter previously engaged by Mr Musija, Mr Willie Hibil, had left the site to work elsewhere. Mr Hibil had completed work up to ‘lock-up stage’ but had not completed all the work required of him. Mr Musija needed a carpenter to do ‘fixing’ work, which involved covering hang-ups, door jambs, doors, skirting and architraves around doors and windows.
The basis on which Mr Kresa was engaged to complete this work was disputed. According to Mr Kresa’s evidence, there was a discussion between him, Mr Musija and Mr Hibil at the site and it was agreed that he would be paid $25 per hour to complete the fixing work. Mr Musija gave conflicting evidence as to whether he had arranged for Mr Kresa to do the work through Mr Hibil or entered into a direct oral agreement with Mr Kresa. He said that he had agreed to pay Mr Kresa a lump sum rather than pay him on an hourly rate basis.
Mr Kresa worked for five days before sustaining his injuries. His evidence was that he started work between 6.00 am and 7.00 am and worked for about 10 hours each day. He said that he brought his own tools to the site but used materials which had been previously purchased. Mr Musija’s evidence was that he had bought these materials. Mr Kresa said that Mr Musija provided plans and that Mr Musija would come to the work site every afternoon after he had had finished working. He said that Mr Musija would inspect the work and generally tell Mr Kresa what he had to do, though he decided for himself how he would perform the work and what hours he would work. Mr Musija said in his evidence-in-chief that he had regularly gone to the work site after finishing his own work and that he had raised any problems he saw in the work with Mr Kresa. In cross-examination he said that if Mr Kresa did the work wrongly he would have told Mr Kresa that he wanted the work done in accordance with the plans.
On 12 June 1994, while Mr Kresa was using a bench band-saw, he amputated his left thumb, index and first and second fingers. He did not have disability insurance at the time. It was this injury which was the subject of his claim for compensation.
The trial judge’s reasons
The learned trial judge began by referring to Mr Kresa’s background and work history as set out above. He discussed the competing evidence as to the basis on which Mr Kresa agreed to do the carpentry work and made the following findings on this issue:
The first defendant, a toolmaker by trade who said that he had no carpentry skills, stated in examination-in-chief that he would not have engaged the plaintiff at an hourly rate and that he engaged all tradesmen, including the plaintiff, on a fixed price basis. He could not recall, however, the fixed price at which he engaged the plaintiff. He stated that only he and the plaintiff were present when he agreed to engage the plaintiff to finish off the carpentry work at the site. Under cross-examination, the first defendant could not recall that in evidence-in-chief he had stated that he had an agreement with the plaintiff to carry out the carpentry works for a fixed price. He conceded that he might have told an investigator from the second defendant in mid 1996 that the plaintiff was not working for him as a carpenter but for Hibil. He further agreed that he had not told the complete truth in interviews at the time since he feared that the Taxation Department might take a dim view of his paying the plaintiff in cash.
The plaintiff’s evidence that he was to be paid at an hourly rate of $25.00 for the carpentry work was supported by his son’s evidence and his written note of this which he states was made at the time. The first defendant’s evidence on this issue was unsatisfactory. He was vague and could not recall the evidence upon this he had given on the previous day. He conceded that he was prepared to vary his evidence to protect his own interests. In all the circumstances, I accept that the plaintiff was engaged by the first defendant to carry out the carpentry fixing work at an hourly rate of $25.00.[3]
[3]Kresa v Musija (Unreported, County Court of Victoria, Judge Shelton, 30 September 2008) (‘Reasons’), [7]-[8].
His Honour discussed the authorities cited by counsel as to the features which differentiated a contract of service from a contract for services[4] and noted that it was the totality of the relationship of the parties that had to be considered to determine whether a plaintiff was a ‘worker’ within s 5 of the Act. His Honour said that ‘the question whether, at a particular time, a person was a “worker” almost invariably requires consideration of competing indicia’[5] and that each case depended upon its own facts. His Honour then continued as follows:
[4]Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16; Victorian WorkCover Authority v Game (2007) 16 VR 393 (‘Game’); Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Graham v Bentley (1959) 76 WN (NSW) 603; Fry v Aginvan Pty Ltd (Unreported, County Court of Victoria, Judge G D Lewis, 18 December 1997).
[5]Game (2007) 16 VR 393, 401-2.
[33]I turn to consider the ‘competing indicia’ … to determine whether the plaintiff had entered into or was working under a contract of service at the time of the accident and was therefore a ‘worker’ under the Act rather than being engaged under a contract for services.
[34]The following factors are, in my view, indicative of a contract of service:
(1)The plaintiff was in no sense carrying on a business as a sub-contractor. He worked on his own. He did not have a registered business name. Although before going to Queensland he stated he had a business card, there was no evidence that at the time of the accident he had a business card. He had been generally out of work in Queensland and then on his return to Victoria, was on unemployment benefits and was desperate to obtain work.
(2)The plastering at least was done at a heavily discounted price which hardly suggests that the plaintiff was in business to make a profit.
(3)He was only engaged to complete a small part of the carpentry work on the house, the fixing, which was estimated to take approximately two weeks.
(4)Carpentry was not his regular employment although he was qualified as a carpenter.
(5)He was paid, as I have found, $25.00 per hour for his work. He was not on a fixed price contract.
(6)He did not purchase materials for the plastering or carpentry.
(7)The first defendant could tell the plaintiff generally what fixing works were to be done and the order in which the fixing works were to be done.
(8)He did not have any disability insurance at the time, although in the past he had.
[35]Factors which suggest rather that the plaintiff was an independent contractor engaged on a contract for services are:
(1)He brought his own tools on site and had his own truck to transport them.
(2)He was a qualified carpenter and advised the defendant on plastering materials to buy.
(3)The plaintiff decided how to perform the fixing works.
(4)The plaintiff’s son assisted him with the plastering.
(5)He generally decided what hours he worked.
(6)The plaintiff’s note book to which I have referred states his tax file number. He stated that he intended recording PPS information in it.
(7)The first defendant was not on site for most of the day.
Considering and balancing these ‘competing indicia’, and mindful of the cases to which I have referred, I have come to the conclusion, that at the time of the accident, the plaintiff was working under a contract of service with the first defendant. He is a ‘worker’ as defined in paragraph (a) of s 5 of the Act in the definition of ‘worker’. In the circumstances, there is no need for me to consider sections 8 and 9 of the Act.[6]
[6]Reasons, [33]-[36].
Grounds of appeal
There were five grounds of appeal. These were as follows:
1.The relationship between the Respondent and the First Appellant was erroneously characterised as one of contract of service by having regard to factors which did not have any relevance to such characterisation.
2.The characterisation of the relationship between the Respondent and the First Appellant was erroneously characterised as one of a contract of service by having regard to factors which could not support such a characterisation.
3.In balancing the indicia regarding the characterisation of the relationship between the Respondent and the First Appellant, regard was erroneously had to:
(a)factors which were not relevant to the characterisation of the relationship between the Respondent and the First Appellant as one of a contract of service; and
(b)could not support the characterisation of the relationship between the Respondent and the First Appellant as one of a contract of service.
4.Regard was had to factors for which there was no evidentiary basis which were then utilised for the purposes of characterising the nature of the relationship between the Respondent and the First Appellant as one of a contract of service.
5.Insufficient reasons were given to support the conclusion that the characterisation of the relationship between the Respondent and the First Appellant was one of a contract of service. In particular, the reasons of the learned Trial Judge did not sufficiently disclose the path of reasoning which led to the ultimate conclusion reached by the learned Trial Judge.
Grounds of appeal 1 to 4
Counsel’s submissions
Grounds of appeal 1 to 4 were directed at the factors that his Honour took into account in characterising the legal relationship between Mr Kresa and Mr Musija as a contract of service rather than a contract for services. There were essentially two limbs to the appellants’ argument.
The first was that his Honour had wrongly relied on facts relevant to the relationship between Mr Musija and Mr Kresa when the latter was performing plastering work in order to characterise the nature of the carpentry contract.
The second was that his Honour erred in taking account of factors which were irrelevant to a determination of whether a person is employed under a contract of service or for services and/or were not supported by the evidence.
Counsel for the appellants submitted that the appellants’ case at trial was that Mr Kresa had done both the plastering work and the carpentry work as an independent contractor, whilst Mr Kresa’s counsel had sought to distinguish between the two arrangements, noting that the plastering work was done pursuant to a quote, at a different time and with the assistance of Radin Kresa. The appellants submitted that the judge had wrongly used factors relating to the nature of the plastering contract, for the purposes of deciding whether Mr Kresa was a ‘worker’ when he performed the carpentry work and that this was an irrelevant consideration in characterising the nature of the carpentry contract.
The facts relating to the plastering contract on which the judge was said to have erroneously relied included:
· the ‘heavily discounted price’ at which Mr Kresa performed the plastering work. [7] Counsel also submitted that there was no evidence, apart from the quote itself, to suggest that the quote was heavily discounted and that it could equally have been said that the disparity between Mr Kresa’s quote and the two other quotes was equally explicable by the fact that the plasterers’ other quotes were too high;
[7]Ibid [34](2).
· Mr Kresa’s giving of advice, as a qualified carpenter, to Mr Musija as to the materials required for the plastering work;[8]
[8]Ibid [35](2).
· Mr Musija’s purchase of materials required for the plastering work;[9] and
· the assistance provided to Mr Kresa by his son in performing the plastering work.[10]
[9]Ibid [34].
[10]Ibid [35].
Counsel for the appellants also submitted that three of the factors which the judge relied upon as indicative of a contract of service were irrelevant to, or at the most, neutral factors in deciding whether Mr Kresa was a ‘worker’ employed under a contract of service. These were:
· Mr Kresa’s unemployment and desire to find work before being engaged by Mr Musija;[11]
[11]Ibid [34](1).
· Mr Kresa’s failure to arrange for disability insurance;[12] and
· the absence of evidence that Mr Kresa had a business card.[13]
[12]Ibid [34](8).
[13]Ibid [34](1).
Counsel submitted that Mr Kresa’s unemployment was irrelevant in determining whether Mr Kresa was a ‘worker’. It was not possible, it was said, to interpret his Honour’s reference to that matter as being merely explanatory of Mr Kresa’s circumstances, because his Honour listed it as being a factor ‘indicative of a contract of service’.[14]
[14]Ibid [34].
Mr Kresa’s failure to arrange for insurance coverage, while ordinarily relevant, was said to be irrelevant because it was not attributable to the nature of Mr Kresa’s relationship with Mr Musija, but to Mr Kresa’s financial circumstances.
Counsel for the appellants also submitted that his Honour erred in inferring that Mr Kresa did not have a business card at the time of performing the carpentry work. The inference was said to have been drawn from the evidence that Mr Kresa had a business card before moving to Queensland and the absence of evidence as to his possession of a business card at the time of performing the carpentry work.
In response to questioning from the bench, counsel for the appellants conceded that if it had been open to the judge to draw the inference that Mr Kresa did not have a business card, the lack of the card and also the fact that Mr Kresa did not have a business name may not have been entirely irrelevant to the question whether Mr Kresa was a ‘worker’ or an independent contractor. However he submitted that, even if Mr Kresa did not have a business card or business name, and did not employ others, these were ‘neutral’ matters in determining whether Mr Kresa was a worker. Whilst the presence of these factors tended to suggest that a person was employed under a contract for services, their absence was not probative that he was employed under a contract of service.
Counsel for Mr Kresa submitted that his Honour’s reasons reflected the way the appellants had run their case at trial. He submitted that the appellants had argued at trial that the plastering contract was a contract for services because it provided for payment of a lump sum to Mr Kresa and that the same applied to the carpentry contract, which was also said to be a lump sum contract. He contended that when read as a whole, his Honour’s reference to the criteria differentiating a contract of service and a contract for services was to be understood in the light of the appellants’ case. His Honour’s reasons were intended to contrast the two contracts and explain the differences between them, in response to the argument that both contracts were entered into on the same basis. Further, some of the matters to which his Honour referred as criteria supporting the existence of a contract of service or for services were matters to which counsel for the appellants had referred in his closing address.
Counsel for Mr Kresa submitted that once the judge had found that Mr Kresa was to be paid $25 per hour for the ‘fixing work’ and found that the contract had been negotiated between Mr Musija and Mr Kresa, rather than with Mr Hibil, it was inevitable that the judge would hold that Mr Kresa was employed under a contract of service. There was no other evidence supporting the view that Mr Kresa was working as an independent contractor.
Counsel for Mr Kresa also challenged the appellants’ contention that his Honour relied on wholly irrelevant considerations and erred in his factual findings. He submitted that the matters set out in [34] of his Honour’s reasons were sufficient to support his Honour’s finding. So far as the matters covered by [35](3) of his Honour’s reasons, the fact that Mr Kresa decided how to perform the fixing work did not detract from the conclusion that he was a worker.
Regarding his Honour’s reference to the plastering work being done at a ‘heavily discounted price’, counsel for Mr Kresa pointed to the significant difference between Mr Kresa’s quote and the other quotes, and Mr Kresa’s evidence that he gave him a ‘good quotation’ because he needed the job.
The carpentry work, which was almost complete and estimated to take a mere two further weeks to complete, was said to be the type of work done by someone employed on a wage, especially in circumstances where the worker was not known by the employer as a carpenter, as was the case here.
Counsel for Mr Kresa submitted that disability insurance was something that an independent contractor would be expected to have, but conceded that the absence of insurance coverage was not a decisive factor. In this case however, it was not irrelevant to the issue his Honour had to decide.
In reply, counsel for the appellants conceded that the main thrust of the appellants’ submission at the trial was that the characterisation of the plastering contract also reflected the basis on which Mr Kresa did the carpentry work. However he submitted that at the trial the appellants had argued in the alternative that even if the carpentry contract was a separate contract from the plastering contract it was a contract for services rather than a contract of service.
Conclusion
The question whether his Honour referred to irrelevant considerations or applied incorrect criteria in deciding whether Mr Kresa was ‘a worker’ falls within s 52 of the Act. However in our opinion grounds 1 to 4 are not made out.
We note first that the primary thrust of the appellants’ case at trial was that the plastering contract was a contract for services and that the same arrangements applied to the carpentry contract. Mr Kresa was extensively cross-examined about the basis on which he entered into the plastering contract. It was put to him that he had quoted a fixed price on that contract and that the carpentry contract was made on a similar basis. Mr Musija gave evidence on his own behalf about the terms of the plastering contract.
Further, in his closing address counsel for the appellants relied on the fact that Mr Kresa had done the plastering work as an independent contractor at a fixed price and said that it should be inferred that the same applied to the carpentry contract. Although the appellants’ counsel also submitted in his closing address that Mr Kresa should be regarded as an independent contractor even if he had been paid an hourly rate for the carpentry work, there is no doubt that his primary argument was that the characterisation of the plastering contract also determined the nature of the carpentry contract. Having regard to the way the case was argued, it was not an error for his Honour to make reference to the circumstances of the plastering contract.
We now turn to the matters to which his Honour referred in [34] of his reasons. While Mr Kresa’s unemployment when he returned to Victoria and his desperation to obtain work were not of crucial significance in determining the nature of his contract with Mr Musija, we do not accept that these matters were irrelevant. We note that the alleged worker’s prior history was discussed by the trial judge in Game,[15] without any suggestion that this should not have been taken into account. Further, Mr Kresa’s employment history was relied upon by counsel for the appellants in his closing address at the trial, presumably in support of the claim that the same contractual arrangements applied to both the plastering and the carpentry contract. In these circumstances we do not consider that his Honour erred in referring to that matter.
[15](2007) 16 VR 393, 397-8.
His Honour did not make a positive finding that Mr Kresa did not have a business card on his return to Victoria. He simply noted that he had had such a card in Queensland and that there was no evidence that at the time of the accident he had a business card. The absence of evidence that he had a business card and his lack of a business name tended to support the conclusion that Mr Kresa was not operating as an independent contractor, when he undertook the carpentry work.
We do not consider that his Honour’s observation that there was no evidence as to whether Mr Kresa had a business card on his return to Victoria wrongly cast the burden of proof on the appellants to prove that Mr Kresa was not a worker.
The matters dealt with in [34] (3), (4), (5), (6), (7) and (8), and particularly (5) were relevant criteria in determining the basis on which Mr Kresa did the fixing work.
While it would have been preferable for his Honour to deal separately with the question whether Mr Kresa entered into the carpentry contract on a different basis from the plastering contract, rather than discussing it at the same time as describing the criteria for the existence of a contract of service, we do not consider that his Honour erred in referring to this matter, having regard to the way the case was argued.
The same reasoning applies to his Honour’s reference to the fact that Mr Kresa ‘advised the defendant on plastering materials to buy’[16] and to the fact that his son assisted him with the plastering.[17] Both of these were matters relied upon by the appellants at trial to indicate that both the plastering contract and the carpentry contract were contracts for services. In that sense, his Honour’s reference to the plastering contract was favourable to the defendant.
[16]Reasons, [35](2).
[17]Ibid [35](4).
Our view that his Honour did not have regard to irrelevant considerations in deciding whether Mr Kresa was a ‘worker’ is reinforced by the matters on which his Honour placed emphasis in reaching his conclusion.
His Honour correctly identified the following questions as relevant to the resolution of the preliminary issue:
· whether the alleged employer had the right to control the alleged worker (as opposed to actually exercising control);
· whether Mr Kresa was paid an hourly rate for his work or a lump sum; and
· whether Mr Musija had supplied the materials for the carpentry work.
All of these questions were resolved in Mr Kresa’s favour. Further, the trial was conducted on the basis that the critical issue was whether Mr Kresa was paid a lump sum for his work or received an hourly rate. Once his Honour accepted Mr Kresa’s evidence on that issue, the decision that Mr Kresa was a worker was almost inevitable.
For these reasons grounds 1 to 4 must fail. We now turn to ground 5.
Ground 5
Ground 5 contends that the judge erred in law by failing to give adequate reasons for his decision.[18] Although the failure to give adequate reasons is an error of law, there is some doubt as to whether this is ‘raised during the proceedings’ so that the appeal is caught by s 52 of the Act. Ashley JA considered this question in Game[19] where he said that:
Proposition 5 [relating to an allegation of inadequacy of reasons] has been held to raise a question of law. The more difficult matter is whether it can be made to fit s 52(1). Perhaps it can. The proceedings may be said to relevantly culminate in the impugned judgment or decision. The reasons for judgment precede the making of orders. So it might be argued that a question as to their sufficiency is a question of law which arises during the proceedings. Be that as it may, the issue need not be decided.[20]
Counsel’s submissions
[18]It was said that this was a question of law on which an appeal lies under s 52(1) of the Act: Game (2007) 16 VR 393, 396 (Ashley JA, with whom Maxwell ACJ and Nettle JA agreed).
[19](2007) 16 VR 393.
[20]Ibid 396.
Counsel for the appellants implicitly submitted that this ground fell within s 52. Counsel for Mr Kresa submitted that ground 5 was not made out, but made no submissions on whether s 52 applied, if it were accepted by the Court that the reasons for decision were inadequate.
Counsel for the appellants submitted that the critical issue in the trial was the balancing of competing indicia which supported findings that Mr Kresa was employed under either a contract of service or a contract for services. His Honour was required to
expose his or her reasons for resolving a point critical to the contest between the parties and in such a way as to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments have been understood and accepted; in other words, to ‘enter into’ the issues canvassed and explain why one case is preferred over another.[21]
[21]Spence v Gomez [2006] VSCA 48, [65] (Nettle JA).
He submitted that the judge had not provided an intelligible explanation of the ‘path of reasoning’ that led him from identifying relevant competing indicia to his ‘ultimate conclusion’.[22] Instead his Honour had merely listed the indicia that supported the characterisation of the contract as a contract of service on one hand and a contract for services on the other, stated that he had balanced the competing indicia while ‘mindful’ of the cases to which he had referred, and announced his conclusion.
[22]Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317, [38] (Ashley JA).
The appellants submitted that the judge was required to identify the weight that he gave to each of the relevant factors, so that the appellants could determine which factor or factors were considered to be most important. By way of example, he pointed to the reasons given by a trial judge in Kovacic v Henley Arch Pty Ltd, which were set out in Ashley JA’s judgment on the appeal from that decision.[23] In that case the trial judge had concluded, after setting out the relevant indicia:
When considering all of these matters, it seems to me that the balance is in favour of a finding that at all relevant times the plaintiff was engaged, as far as the defendant was concerned, in a contract for the provision of services, and hence he could not be said to have been a ‘worker’ under s 5 of the Act. In my view, the factor which weighs most heavily against the plaintiff being a worker is that he and his partners engaged other workers to perform services for them in carrying out their work for the defendant. The fact that the plaintiff engaged an accountant or his wife to help with the books is not to the point but labourers and other bricklayers are. It seems to me that it is impossible for a person who employs another to then turn around and describe himself as a ‘worker’. He is not a worker, he is an employer engaged in his own business.[24]
[23](2009) 22 VR 21.
[24]Ibid 26.
Counsel also submitted that his Honour had failed to relate the cases he cited to the particular facts of this case.[25]
[25]He drew an analogy with what was required by a judge directing a jury in a criminal trial. Domican v The Queen (1992) 173 CLR 555; R v Chai (2002) 187 ALR 436, 441.
Counsel for Mr Kresa submitted that the judge’s path of reasoning was sufficiently clear. He submitted that the appellants’ case was based largely on Mr Musija’s evidence that Mr Kresa had entered into a fixed price contract to do the carpentry work. Once the judge had indicated his preference for the evidence of Mr Kresa and his son that Mr Kresa was to be paid $25 per hour, the ingredients necessary to his Honour’s conclusion were largely established.[26]
[26]Reasons, [8].
Counsel pointed to the judge’s characterisation of Mr Musija’s evidence as ‘unsatisfactory’ and the conflicting accounts given by Mr Musija, who first acknowledged that he agreed on a lump sum price with Mr Kresa (without being able to recall the precise figure) but then said that he had not spoken with Mr Kresa and instead engaged him through Mr Hibil.
Counsel for Mr Kresa submitted that a finding that his client was employed on an hourly rate meant that his client was prima facie employed under a contract of service and that there was no other evidence (and in particular, no evidence relating to the formation of the contract) available to controvert this conclusion. Counsel submitted that in circumstances where Mr Musija was unaware that Mr Kresa was a qualified carpenter, provided the materials to Mr Kresa to enable performance of the carpentry work and arranged for Mr Hibil to rectify any defects in Mr Kresa’s carpentry work, it would have been almost impossible for the judge to reach any other conclusion.
Counsel relied on the fact that his Honour had described the factors supporting the existence of a contract of service as ‘indicative’ whereas he had only used the verb ‘suggest’ to refer to the indicia supporting a characterisation of the carpentry contract as a contract for services.[27]
[27]Reasons, [34]-[35].
Conclusion on ground 5
In our opinion ground 5 is not made out. It might perhaps have been preferable for his Honour to have explained which factors he regarded as conclusive in deciding that Mr Kresa was a worker employed under a contract of service. However when his Honour’s reasons are read as a whole the basis for his conclusion that Mr Kresa was a worker can be readily inferred. His Honour rejected the evidence of Mr Musija that the arrangement to do the fixing work was made between himself and Mr Hibil and that the contract involved the payment of a lump sum for the work. His Honour also rejected the appellants’ claim that the nature of Mr Musija and Mr Kresa’s relationship under the plastering contract also determined the nature of their relationship under the carpentry contract.
It is apparent from the judge’s reasons that these matters, combined with the other factors to which he referred in [34] persuaded his Honour that Mr Kresa was a worker within s 5 of the Act.
In Sun Alliance Insurance v Massoud,[28] Gray J observed that:
The simplicity of the context of the case or the state of the evidence may be such that a mere statement of the judge's conclusion will sufficiently indicate the basis of a decision … In such cases, the foundation for the judge's conclusion will be indicated as a matter of necessary inference.[29]
[28][1989] VR 8.
[29]Ibid 19.
Similarly in Kiama Constructions v Davey,[30] the trial judge’s reasons were not found to be inadequate despite their brevity, because the steps in his reasoning were apparent. Both cases were approved by Chernov JA in Intertransport International Private Ltd v Donaldson.[31] As was the case in Franklin v Ubaldi Foods Pty Ltd[32] and Hesse Blind Roller Co Pty Ltd v Hamitoski[33] ‘the path of reasoning which led to the ultimate conclusion can be necessarily inferred’.
[30](1996) 40 NSWLR 639, 647-8.
[31][2005] VSCA 303, [19].
[32][2005] VSCA 317, [38] (Ashley JA).
[33][2006] VSCA 121, [19] (Redlich JA).
In our opinion his Honour’s reasons read as a whole indicate that he rejected the appellants’ claim that the plastering contract and the carpentry contract were entered into on a similar basis. Further, they make it clear that his Honour considered that Mr Kresa was a worker because
· Mr Kresa was required to carry out work consistent with Mr Musija’s plans and Mr Musija had the right to direct him as to what work was to be done;
· Mr Kresa was to be paid $25 per hour;
· the materials to complete the job were provided by Mr Musija; and
· Mr Musija did not know that Mr Kresa was a qualified carpenter when he initially discussed the job with him and engaged him to finish off Mr Hibil’s work.
On the assumption that a trial judge’s failure to give adequate reasons is appellable under s 52 of the Act, we do not consider that ground 5 is made out.
For these reasons we would dismiss the appeal.
4
10
0