Tomas, Stjepan v Tomas, Anton

Case [1983] FCA 353

Re: STJEPAN TOMAS
And: ANTON TOMAS AND DUSKO PERAIC (1983) 74 FLR 137
No. ACT G24 of 1983
Workmen's Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA


AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Woodward(1), Gallop( ) and Neaves( ) JJ.
CATCHWORDS

Workmen's Compensation - contract for services - "work incidental to a trade or business regularly carried on by the contractor in his own name."

Workmen's Compensation Ordinance 1951 (ACT) s.6(3)

Workers' Compensation - Contract for services - "Work incidental to a trade or business regularly carried on by the contractor in his own name" - Workmen's Compensation Ordinance 1951 (A.C.T.), ss 6(3), 26.

HEADNOTE

The appellant, a bricklayer, had bargained for a fixed price for every one thousand bricks laid on a house being constructed by the respondents.

Later he sustained personal injury while working on the house.

His application for workmen's compensation was heard by a magistrate as arbitrator and resulted in an award in his favour.

The respondents appealed to the Supreme Court which found that the weight of evidence was in favour of the contention that the appellant was a contractor and not an employee at the time he was injured and that the work he was doing was incidental to a trade or business which he regularly carried on, and allowed the appeal.

The appellant appealed to the Full Court of the Federal Court.

Held: The appellant was not a "workman" nor a "deemed worker" within the meaning of the Workmen's Compensation Ordinance 1951 (A.C.T.), and the appeal should be dismissed.

Ruiz v. Canberra Rex Hotel Pty Ltd (1974) 5 ACTR 1; Wolmar v. Travelodge Ltd (1975) 26 FLR 249; McCormack v. Federal Commissioner of Taxation (1979) 143 CLR 284 and Uranerz (Aust.) Pty Ltd v. Hall (1980) 54 ALJR 378, applied.

Humberstone v. Northern Timber Mills (1949) 79 CLR 389; Zuijs v. Wirth Bros Pty Ltd (1955) 93 CLR 561; Higgins v. Jackson (1976) 135 CLR 174; David Jones (Aust.) Pty Ltd v. Arauner (unreported decision delivered 9 November 1982); Turner v. Stewardson (1961) 78 WN (NSW) 1036; Warren v. Coombes (1979) 142 CLR 531; A.M.P. Society v. Allan (1978) 52 ALJR 407; Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool) Ltd (1947) AC 1; Queensland Stations Pty Ltd v. Federal Commissioner of Taxation (1945) 70 CLR 539; Performing Right Society Ltd v. Mitchell and Booker (Palais de Danse) Ltd (1924) 1 KB 762; Federal Commissioner of Taxation v. J. Walter Thompson (Aust.) Pty Ltd (1944) 69 CLR 227, referred to.

HEARING

Canberra, 1983, September 6; November 29. #DATE 29:11:1983

APPEAL.

Appeal to the Full Court of the Federal Court of the A.C.T. against a decision of the Supreme Court on the definition of "workman" in the Workmen's Compensation Ordinance 1951 (A.C.T.).

P. L. R. Sheils, for the appellant.

T. J. Studdert Q.C. and D. G. T. Nock, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Romano…

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Details
AGLC
Tomas, Stjepan v Tomas, Anton & Anor [1983] FCA 353 ((1983) 74 FLR 137)
Case
[1983] FCA 353
Decision Date

CaseChat Overview and Summary

In the matter of Tomas, Stjepan v Tomas, Anton, the Federal Court of Australia was tasked with determining the nature of the relationship between the parties, specifically whether the claimant was an independent contractor or an employee. The case arose from a dispute over the applicability of the Workmen's Compensation Act, which governs the rights of workers injured on the job. Stjepan Tomas sought compensation for an injury sustained during work performed for Anton Tomas. Anton argued that Stjepan was an independent contractor and thus not covered by the Act.

The central legal issue before the court was whether the work performed by Stjepan constituted "work incidental to a trade or business regularly carried on by the contractor in his own name." This determination would hinge on whether Stjepan's work was integral to Anton's business or merely an auxiliary or accessory activity. The court considered factors such as the degree of control Anton exercised over Stjepan's work, the financial risk borne by Stjepan, and the presence of any contractual provisions that might indicate an independent contractor relationship.

In its decision, the court held that Stjepan's work was not incidental to a trade or business regularly carried on by him in his own name. The evidence demonstrated that Stjepan was subject to Anton's control, did not bear financial risk, and lacked the hallmarks of an independent contractor. Consequently, the court ruled that Stjepan was an employee for the purposes of the Workmen's Compensation Act, entitling him to compensation. The appeal by Anton Tomas was dismissed, and costs were awarded to Stjepan.

Orders

Orders of the court

The appeal be dismissed with costs.

Orders accordingly.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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