Warrior v WorkCover Corporation No. Scgrg-98-279 Judgment No. S6893

WARRIOR V WORKCOVER CORPORATION

[1998] SASC 6893

Full Court: Prior, Lander and Wicks JJ

PRIOR J

I agree with the reasons published by Lander J. The appeal should be dismissed.

LANDER J

This is an appeal by Mr Frederick Warrior, who claims to be a worker within the meaning of the Workers Rehabilitation and Compensation Act, from a decision of the Workers Compensation Appeals Tribunal. That Tribunal decided on an appeal from a Review Officer that Mr Warrior was not a worker within the meaning of the Act and therefore not entitled to any benefits under the Act.
MBFI Resorts Pty Ltd (MBFI) is the owner/developer of the Wirrina Resort on the Fleurieu Peninsula. In 1994 it commissioned an anthropological and an archaeological report pursuant to the Aboriginal Heritage Act 1988. It did so because it intended, in stages, to develop the Wirrina resort.
Following receipt of those reports, both of which were accepted by MBFI, it commenced discussions with the Kaurna Heritage Committee which represents the Aboriginal community in the area of Wirrina.
In November 1994, MBFI wrote to the Kaurna Heritage Committee advising them that stage one of the development work was due to commence shortly. It offered to undertake, in conjunction with the Kaurna Heritage Committee, to fund the presence of two Aboriginal consultants (a man and a woman) as selected by the Committee to advise in relation to the excavations. It was proposed that the consultants would be paid a daily fee of $150 each and that MBFI would provide accommodation, meals and travelling expenses to the extent of one return trip Wirrina/Adelaide per week per person.
The consultants would observe the excavation works and in the event that any skeletal remains or significant archaeological material were uncovered could require that the work be halted so that it could be inspected pursuant to the Aboriginal Heritage Act 1988.
In the event that such an event occurred MBFI would be responsible for the cost of the inspection under that Act.
The letter proposed that “all consultants and persons appointed by your committee must conform with MBFI Resorts site rules for occupational health, safety and security in addition to any site rules laid down by union representatives or MBFI contractors”. The letter proposed that the Heritage Agreement be entered into before January 1995.
On 1 December 1994 MBFI wrote again to the chairperson of Kaurna Heritage Committee advising her that it intended to commence the excavation works on 14 December 1994 and asking her to advise “of the names and contacts of the two consultants who will be attending this work so that we can make arrangements according to our earlier advice and agreement”.
MBFI awarded the contract to carry out earthmoving work in stage one of the Wirrina Cove Land Division to D & R Civil and development works commenced sometime early in 1995.
As part of the contractual arrangement with D & R Civil and in keeping with previous negotiations with the Kaurna Committee it was agreed that the Kaurna Heritage Committee would appoint two inspectors/consultants and if any artefacts were found which might have some heritage or significance work could be stopped for the inspectors to inspect such artefacts. The appellant was appointed as one of those inspectors.
The appointment of the inspectors was made by the Kaurna Heritage Committee and not by MBFI.
The appellant suffered an injury on 14 February 1995. In the course of his work as an inspector of an excavation he suffered a cut to his right big toe. The appellant, unfortunately, is a diabetic and as a result is vulnerable to infection because of an impaired immune system. The toe became infected and was later amputated. However the infection spread and a second toe needed to be amputated. Notwithstanding those two amputations the infection continued to spread and there were a series of operations and by May 1995 the appellant’s leg was amputated just below the knee.
On 7 March 1995 the appellant lodged a notice of disability in relation to a cut on his right big toe.
On 6 March 1995, MBFI wrote to Mr Dixon of the Kaurna Heritage Committee pointing out that MBFI and the Kaurna Heritage Committee had previously agreed that the consultancy payments should be made payable to the Kaurna Heritage Committee and that invoices were to be submitted on Monday and payment available on Friday.
The letter continued:
“...
Through goodwill and for the convenience of your individual inspectors MBFI Resorts had further undertaken to make payment directly to the inspectors, as long as invoices are on Kaurna Heritage Committee letterhead and acceptance of payment signed by the individual inspector. This is not a common commercial practice, but is however acceptable.
This procedure was working well, until the inspectors were requesting for cash cheque payments. Over the last two weeks we have explained to Mr Fred Warrior of the difficulties and complexities of issuing cash cheques, to individuals from the Community, for the inspection services and it seemed to have been accepted quite favourably.
On Friday 3 March 1995, Mr Fred Warrior Junior and Karl Telfer the new inspectors on site arrived at our offices to pick up their cheques for the week ending 3 March 1995. On realising that the cheques are not made as cash cheques, Mr Fred Warrior Junior entered into a fairly lengthy discussion with our Secretary who was trying to explain to him that no-one was available to authorise the issue of cash cheques in the office. Mr Warrior Junior was irritated with the situation and went to the extent of using offensive language to my Secretary in front of other employees of the Company. We believe that this behaviour was unnecessary, unwarranted and against the goodwill relationship that we have generated over the last four months.
MBFI Resorts have considered ourselves to be a more than accommodating client developer and we believe that we have taken enough gestures to demonstrate our goodwill to accommodate most of the Committee’s requests. To this end, to ensure that our good working relationship continues and to protect the Committee’s integrity, we are recommending that the payments procedures be revised back to the original intention.
In other words, payments will be made payable to the Kaurna Heritage Committee at the end of each week, less any outstanding accounts that the inspectors may have incurred with the Hotel Management at the end of each week. We strongly believe that we should continue to maintain some regulated procedures in our working relationship. We should continue to communicate, liaise and ensure a harmonious and fruitful participation in the Committee’s reconciliation with the site.”
On 13 March 1995 MBFI wrote to Mr Dixon, the Chairperson of the Kaurna Heritage Committee advising him of a complaint from a Wirrina Resort guest relating to the behaviour of the consultants provided by the Committee. The complaints related to behavioural matters within the complex.
The letter concluded:
“It has always been our intention to continue to develop our professional relationship. The idea of on site inspectors presence was born as a gesture of goodwill from MBFI with no legal obligation.
You have assured us the new inspector starting 13.03.95 will be more receptive the responsibility and image of the Kaurna Heritage Committee. I trust that this is so.”
On 29 March 1995 MBFI wrote again to Mr Dixon in the following terms:
“As discussed and advised to the Kaurna Heritage Committee, fresh excavation and trenching works on site will be complete by 30/3/95. All subsequent work now involves laying of cables, piping and backfilling.
Please inform your inspection representatives of the above and arrange for them to vacate Wirrina Resort by close of business 30/3/95.
Further consultancy services may be required at a later date and we would welcome new negotiations with the Committee.
Thank you for the Committee’s consulting assistance to date and look forward to working with the Committee again.”
On 5 July 1995 the appellant was advised that his claim had been rejected. He was advised that his disability did not arise from employment with MBFI Resorts Pty Ltd and that therefore the claim could not be accepted by MBFI.
The appellant applied for a review of that decision.
The Review Officer, who gave ex tempore reasons, concluded that the relationship between MBFI and the Kaurna Heritage Committee was of a kind that the Committee would supply the names of people who could monitor the work for MBFI and report any possible items of significance. The Review Officer saw that as being not dissimilar to arrangements made between an employer and an industrial organisation or a union.
The Review Officer further concluded that there was a contract between MBFI and the Kaurna Heritage Committee for the supply of people to carry out monitoring and that monitoring was an integral part of the excavation work, specifically for the purpose of identifying items of significance and for reporting to MBFI, albeit through the contractor.
The Review Officer then said:
“I find that Mr Warrior was engaged directly by MBFI to provide that work; that he was engaged because of his expertise, advised by the Committee, to identify items. I find that the identification of items was a part of the requirement to clear and excavate the site. I find that Mr Warrior was an employee of MBFI, but in the alternative I would find that if I were wrong about that, I would find that he was an independent contractor and I would go as far as to say that the work carried out by the contractor at that time was building work within the meaning of the Act and that Mr Warrior would have been a deemed worker.”
The Review Officer then concluded that Mr Warrior suffered an injury as claimed and that the injury had subsequently led to the amputation of his leg below the knee.
Workcover appealed from that decision. The matter came before the Workers Compensation Appeal Tribunal which found that there was no evidence to support the finding that Mr Warrior was an employee of MBFI in the ordinary sense of the word. The Tribunal accepted the appellant’s argument that there were no direct dealings between the appellant and MBFI. It found that the only dealings common to the two parties arose through MBFI’s dealing with the Kaurna Heritage Committee. Further it found there was no contract between the appellant and MBFI prior to his going onto the work site. Moreover the Tribunal found that the power of control of the appellant did not rest with MBFI. The Tribunal rejected a submission that because the appellant had to comply with site rules and conform with rules in relation to occupational health and safety that amounted to an assertion of control. Moreover the Tribunal was not prepared to conclude that an issue of an employer/employee relationship arose simply because the appellant was paid by the hour rather than paid for a particular task. Whilst the Tribunal recognised that MBFI paid the appellant directly it considered that matter of little weight because the “true situation” was evidenced in the letter of 6 March 1995 (supra) in which MBFI referred to the original intention of making payments to the Kaurna Heritage Committee.
The Tribunal also concluded that the appellant did not come within the extended definition of a contract of service. The Tribunal further concluded that the work carried out by D & R Civil was not building work for the purpose of the Act, i.e. within the definition of “contract of service”.
It allowed the appeal and set aside the orders of the Review Officer.
The appellant appealed from that decision on the following grounds:
“1..... The Tribunal erred in law in failing to find that the appellant was engaged under or was a party to a contract, arrangement or understanding with MBFI Resorts Pty Ltd within the meaning of paragraph (b) of “Contract of Service” as defined in Section 3 of the Workers Rehabilitation and Compensation Act 1986.
2.The Tribunal erred in law in failing to find that MBFI Resorts Pty Ltd was engaged in building work as defined by the Building Work Contractors Act 1995, in that it confined its consideration to the activities being performed by an independent contractor to MBFI Resorts Pty Ltd, namely R & D Civil.
3...... The Tribunal erred in the law in failing to find that the land clearing activities being undertaken by MBFI Resorts Pty Ltd were excavation work within the definition of building work in the Building Work Contractors Act 1995.
4.The Tribunal erred in law by misconstruing and thereby disregarding the Review Officer’s important finding that the work that was being carried out by MBFI Resorts Pty Ltd included the clearing of allotments for sale, excavating a site for the construction by MBFI Resorts Pty Ltd of a two-storey condominium block of housing units and the excavation and installation of access roadworks to permit the construction and use of the said allotments and condominium block.
5...... That the Tribunal erred in law by failing to find that the activity engaged in by the appellant in the course of monitoring the site for items of aboriginal heritage was part of the work of excavating within the meaning of the Building Work Contractors Act 1995.
6.The Tribunal erred in considering whether a third party, namely the Kaurna Heritage Committee had a parallel interest in the preservation of any heritage items that may have been identified by the appellant in the course of monitoring duties, which consideration was irrelevant to the question of whether or not the appellant’s activities could properly be construed as “part of the work of excavating” a site for the work of constructing or erecting a building or buildings within the meaning of the Building Work Contractors Act 1995.”
A disability is compensable if it arises from employment (s30). No worker is entitled to any benefits under the Act unless the worker can establish that the disability arose from employment. A number of words and phrases are defined within s3.
“...
“worker” means—
(a)a person by whom work is done under a contract of service (whether or not as an employee);
(b)a person who is a worker by virtue of section 103A;
(c)a self-employed worker,
......... and includes a former worker and the legal personal representative of a deceased worker;
...
......... “employer” means—
(a)a person by whom a worker is employed under a contract of service, or for whom work is done by a worker under a contract of service;
(b)in relation to persons of whom the Crown is, under section 103A, the presumptive employer - the Crown;
(c)in relation to persons of whom any other person is, by virtue of a provision of this Act, the presumptive employer - that other person,
......... and includes a former employer and the legal personal representative of a deceased employer;
“employment” includes—
......... (a) work done under a contract of service;
(b)the work of a self-employed person to whom the Corporation has extended the protection of this Act;
(c)the work of persons of whom the Crown is, under section 103A, the presumptive employer;
(d)attendance by a worker at a place of pick-up;
...
“contract of service” means—
(a)a contract under which one person (the worker) is employed by another (the employer);
(b)a contract, arrangement or understanding under which one person (the worker) works for another (the employer) in prescribed work or work of a prescribed class;
(c)a contract of apprenticeship;
(d)a contract, arrangement or understanding under which a person (the worker) —
(i)receives on-the-job training in a trade or vocation from another (the employer); and
(ii)is during the period of that training remunerated by the employer;
... ”
It would be logical to start with the definition of “employment”. It includes work done under a contract of service. Work done under a contract of service in this matter relevantly means a contract under which a worker is employed by an employer or a contract arrangement or understanding under which a worker works for an employer in prescribed work or work of a prescribed class.
The definition of “worker”, in this case at least, takes the matter no further because it means a person by whom work is done under a contract of service. Again in this matter the definition of “employer” also takes the matter no further; it means a person by whom a worker is employed under a contract of service or for whom work is done under a contract of service.
In the circumstances of this case the appellant was only entitled to benefits if the appellant could establish that there existed a contract under which he was employed by an employer or there was a contract, arrangement or understanding under which he worked for MBFI in prescribed work or work of a prescribed class.
The Review Officer found for the appellant upon the basis that there was a contract under which the appellant was employed by MBFI. The Tribunal found otherwise.
The appellant did not seek to argue on this appeal that the Review Officer’s decision on this aspect, at least, should be upheld. The appellant argued that the disability arose out of employment in that the work was done under a contract of service being a contract, arrangement or understanding under which the appellant worked for MFBI in work of a prescribed class. Because no work has been prescribed under the Act, the appellant did not argue that the work was prescribed work. The appellant limited his argument to work of a prescribed class.
An appeal to this Court, which was brought by leave pursuant to s100(3) of the Act, is limited to a question or questions of law. Section 100 has been repealed but because of transitional provisions it continues to govern this matter.
To succeed the appellant needs to establish that the Tribunal erred in law in failing to find that there existed between the appellant and MBFI a contract of service which arose by reason of a contract, arrangement or understanding under which the appellant worked for MBFI in work of a prescribed class.
The expression “contract, arrangement or understanding” is not uncommon in legislation (e.g. Trade Practices Act). The expression has been subject to judicial scrutiny in other legislation but has not been the subject of consideration under this Act.
The expression must be considered in the context of the Act and must take its colour from a consideration of the whole of the Act. In my opinion the expression is used to include circumstances as formal as a contract and circumstances as informal as a mere understanding and all circumstances between those two extremes. It includes all agreements where one person works for another in work of a prescribed class where the agreement falls short of a contract of employment. A contract of employment is provided for in par(a) of the definition of contract of service; so the contract referred to in par(b) must be something apart from a contract of employment. It also includes an arrangement which falls short of a contract or agreement whereby a worker works for another person.
An understanding is something less formal than a contract or arrangement. Being less formal it might arise in circumstances where the parties have not formally agreed for the worker to work for the other person. The circumstances will be even less formal than where an arrangement has been made between the parties. The understanding might have arisen without the parties even discussing the matter between themselves. It might arise out of habit or acquiescence. If a worker works for another person and both the worker and that other person are content with that state of affairs even though neither party has addressed the circumstances giving rise to the relationship, an understanding of the type contemplated in par(b) might arise.

The purpose of the legislation is to ensure the widest coverage of persons who work for others so that if they suffer injury and consequent disability they will be entitled to economic protection during the period of the disability.
It was put by the respondent that the contract, arrangement or understanding had to be between the worker and the other person (the employer). It was argued that it was not possible for there to be a contract, arrangement or an understanding between, for example, a worker’s usual employer and another person (the employer) which would satisfy par(b) of the definition.
I do not agree with that submission. If it was right it would mean that a worker on loan from one employer to another might not come within the coverage of the Act.
I believe that the worker might be performing work under a contract of service where the contract under which the worker works for an employer has been entered into by the worker’s usual employer and the second employer. So also a worker might perform work under a contract of service because of arrangements entered into by another person and the person for whom the work is being performed.
I suppose ordinarily if two persons reach an agreement or enter into an arrangement whereby another person, a worker, will perform work for one of those two persons at least an understanding will arise between the worker and the person for whom the work is being performed, i.e. the employer under which the worker performs the work. However, I do think a worker can come within a contract of service even if the circumstances giving rise to the worker performing the work were made by others as long as one of those others is the employer in par(b) of the definition of “contract of service” for whom the worker is working.
It was submitted by the respondent in this case that the appellant’s claim had to fail because there was no contract, arrangement or undertaking between the appellant and the respondent. It was said that MBFI concluded its agreement directly with the Kaurna Heritage Committee.
In my opinion there was at least an understanding existing between the appellant and MBFI under which the appellant worked for MBFI. That understanding must have existed because of the arrangements entered into between MBFI and Kaurna Heritage Committee. The appellant was paid for his attendance at the site. Indeed he was paid directly by MBFI. In the letter of 1 December 1994 from MBFI to the Committee reference was made to “the seminar/briefing of the on-site workers”. The Committee also referred to the education and instruction of employees who may be hired or arrive on site subsequent to the initial seminar. I think that there was at the least an understanding that the appellant would work for MBFI. There was no contract of employment nor was there a contract for services. The relationship was far more informal than a contractual relationship but it did involve at least an understanding of the kind I mentioned.
One must look to the Regulations under the Workers Rehabilitation and Compensation Act to ascertain work of a prescribed class. Regulation 4 provides:
“4(1)......... For the purposes of the definition of “contract of service” in section 3(1) of the Act (by subject to this regulation), the following classes of work under a contract, arrangement or understanding are prescribed classes of work;
(a)building work, other than wall or floor tiling.”
“Building work” is defined in reg3 as having the same meaning as the Builders Licencing Act 1986.
“Building work” is defined in s4 of the Builders Licensing Act in the following terms:
“ ‘building work’ means -
(a).... the whole or part of the work of constructing, erecting, underpinning, altering, repairing, improving, adding to or demolishing a building;
(b).... the whole or part of the work of excavating or filling a site for work referred to in subparagraph (a);
or
(c).... work of a prescribed class.”
It was put by the appellant that reg4(3) of the Regulations made under the Builders Licensing Act provides that building work is classified into the trades set out in Schedule 1 of the Regulations and that Schedule is work of a prescribed class provided for in s4 of the Builders Licensing Act.
That submission must be rejected. Regulation 4(3) has nothing whatsoever to do with designating work of a prescribed class under the Act.
The appellant can only succeed on this appeal if he can show that the Tribunal erred in law in not concluding that the work which he was doing was building work as defined in either par(a) or par(b) of the definition of “building work” in the Builders Licensing Act.
The work being performed by D & R Civil was civil engineering. Its obligation was to install the necessary infrastructure to allow a subdivision to be marketed. The infrastructure which was required to be installed consisted of sewer pipes, water pipes, building roadways and all other work associated with the completion of a subdivision.
It cannot be sensibly suggested in my opinion that the appellant could come within par(a) of the definition of “building work” in the Builders Licensing Act. The work did not involve the constructing, erecting, underpinning, altering, repairing, improving, adding to or demolishing a building.
The work which was being carried out was clearing work and excavation work preliminary to the installation of infrastructure for the creation of a subdivision.
It was put, however, that not only was a subdivision being created but there was also a condominium to be built at a later stage. It was submitted that in those circumstances the work involved excavating or filling a site for work of constructing or erecting a condominium. In other words, it was submitted that the work was of a kind that the appellant came within par(b) of the definition of “building work” in the Builders Licensing Act.
In support of that submission, the appellant relied upon his own evidence that the work was being carried out for the purpose of building 119 condominiums. Reference was also made to the evidence of Mr Siow who was the Project Manager with MBFI.
I think little weight can be given to the evidence of the appellant. He was not in a position to know whether or not any particular work was being carried out for the purpose of construction of any condominiums. If in fact this was excavation or filling a site for the construction or erection of a building, then the appellant would have needed to make that out through the evidence of Mr Siow.
His evidence was that MBFI was involved in the development of Wirrina which development was to be carried out over a number of stages. The first part of the development was the refurbishment of the existing resort, motel rooms and the main resort buildings. That work was carried out in 1994.
In 1995 a contract was let for what was termed a 1B subdivision which was for the creation of 119 allotments. D & R Civil was awarded the contract to carry out the subdivision work.
There can be no doubt that the work carried out in this stage of the development involved excavation work. The early correspondence between MBFI and the Kaurna Heritage Committee referred to excavation work to be carried out. It spoke of the Committee appointing “two persons to provide an initial briefing to all workers involved in significant excavation during the Stage one development”. The correspondence mentions areas where no excavations will take place.
On 29 March 1995 MBFI advised the Committee that “fresh excavation and trenching works on site will be complete by 30/3/95”. Moreover, so much is clear by the very fact that inspectors were necessary to be on hand to ensure that no aboriginal artefacts were destroyed or damaged. That could only have occurred if the work which was being carried out involved excavation.
The question to be determined is whether or not the excavation work was for the work of constructing or erecting a building. A building is defined in the Builders Licensing Act to include a structure and part of a building or structure.
Mr Siow said that D & R Civil were there for the purpose of carrying out excavation work but only for site preparation not for the purpose of constructing or erecting a building.
He did, however, say that a condominium was to be built at the back and on the top of a hill. That condominium he said was constructed by some other contractor.
I do not think it is relevant that the condominium was constructed by another contractor. Building work is not restricted to the work of excavating a site for work of constructing or erecting a building by the same contractor. In my opinion a person could be engaged in building work even though the party for whom he or she is carrying out the work is not the party who is to carry out the work of constructing or erecting the building.
I have to say that the evidence in relation to the construction of the condominium is at best vague. I think that is because the parties at the time the matter was before the Review Officer did not specifically direct their minds to the definition of “building work” under the Builders Licensing Act.
Eventually, however, the matter was more or less specifically addressed and I set out Mr Siow’s evidence:
“Q.... Now, the excavation work that was taking place when you were first there was of a site alongside the golf course, where it was proposed to construct a block of two-storey condominiums. Is that right.
A.The condominium was way behind at the back.
Q...... On top of the hill.
A.On top of the hill.
Q...... Okay, which has since been built. Is that right.
A.Well, the condominium was built at a later stage, when the Atlas - D and R Civil’s contract is to create that 111 allotments, also the creation of that condominium allotment and that condominium was built by another contractor.
Q...... Okay. So the excavation work though at that time, was happening on more than one site. Is that right.
A.It’s part and parcel of the whole lot.
Q...... It’s part of the overall property but - I’m not being very clear. What I understand to be the case is that part of the excavation work was of a site for the allotments alongside the golf course and there was separate physical location on the hill where the condominium site was being clear for later construction, plus a adjoining roadworks.
A.Infrastructure work.
Q...... Well, let’s take that step by step. Was it the case that --
A.You’ve got to understand the site. The site is - you come in, you’ve got allotments all the way up on the hill and along there is the condominium site, where only - as part of D and R Civil’s contract, they’re installing infrastructure work. In other words, like the sewer pipes, the water pipes and that’s all.
Q...... So D and R Civil’s job was to clear the site, level and clear the site, for the construction of the condominium block.
A.No.
Q...... They had no role in clearing the site for the condominium block you say.
A.What you’re saying is D and R Civil clear, prepare the site for the condominium and that’s different, right. You create - you clear the site to create allotments and provide the infrastructure and that’s what they did.
Q...... So their job ---
A.To cut the level and prepare the platform for the building, another contract.
Q...... So did they do any cutting of the ground where the condominiums were going to be built later.
A.They just cleared it.
Q...... They cleared it.
A.Yes.
REVIEW OFFICER
Q.What was there to clear there.
A...... What was there to clear? There was a few trees, topsoil. The condominium site is actually part of the old golf course.
Q.Yes. It’s a long time since I’ve been there and what we should have all done is gone down there to have a look.
A...... When they first cleared the top grass, all this grass, when they take it away - the top layer was cleared. It was part of the golf course, because you see sand, a lot of sand, in there.
Q.Okay. So they’re not benching it at all, they just take the top grass off.
A...... Just clear, just like you’d normally do the subdivision work.
MR LIESCHKE
Q...... So can you clarify that. There are two stages of getting the excavation ready before you can start organising footings for a building. (1) is clearing the top of the surface, getting rid of the trees, the grass and the topsoil, that’s one stage; the second stage is cutting the site at the required height and at the required level and the required dimensions.
A.That’s not D and R Seal’s [sic] contract.
Q...... So there are two phases, you’d agree with that, and D and R only did the first phase.
A.Yes.
REVIEW OFFICER Okay. Well, we didn’t understand that before.
MR LIESCHKE
Q...... So they weren’t actually cutting for the building, but they were clearing the site.
A.Clearing the site.
Q...... They were also clearing the site of 111 allotments which ran alongside new roadworks which were being installed.
A.That’s right.
Q...... And they also had to prepare for stormwater systems.
A.Installing stormwater, sewerage infrastructure.
Q...... What was going to happen to the 111 allotments. Were they for sale.
A.They’re for sale.
Q...... And the condominiums, are they for sale.
A.Yes.
Q...... Were there any other earthworks going on at that stage as well.
A.Only at a later part of the year where we start the golf course reconstruction.
Q...... The 111 allotments were going to be sold as serviced vacant blocks.
A.Freehold land.
Q...... Yes, freehold land, but with services running past: water, sewerage, power.
A.Yes, basic ---
Q...... The other services that were being installed by D and R - or liaising with the installation of other services including ETSA, telephone, gas ---
A.That’s liaised by D and R Civil.
Q...... That was part of their role.
A.Yes.
Q...... So in fact the roadworks that were being installed, not only had stormwater and sewerage, but also had alongside it, gas telephone, power.
A.Power and telephone, no gas.
Q...... Whereas the condominium site was being developed by MBFI through its contractors and then MBFI was going to sell the finished condominiums.
A.Yes.
Q...... That’s what’s happened.
A.Yes.”
The evidence is unsatisfactory. In so far as Mr Siow’s evidence suggests that D & R Civil was not carrying out excavation work, that cannot be right. It is clear from the correspondence and by the presence of the Inspectors themselves that D & R Civil was carrying out excavation work.
The Tribunal concluded:
“However if that not be the case it is then submitted the work which the civil contractors were doing was not work which fell within the ambit of the Act, i.e. it was not the whole or part of the work of ‘excavating or filling a site for work referred to in paragraph (a)’.
I accept that proposition. The work actually performed by R. and D. was civil engineering - installing infrastructure work such as sewer pipes, water pipes, building road ways and the preliminary work required to put a subdivision on the market. The only activity R. and D. Civil performed on the actual allotments were [sic] clearing the site.
The definition of building work requires excavating or filling a site for work for a building. Even if ‘for a building’ is looked at in its widest and most generic form it is clear that:-
1.The work of preparing trenching and excavations for the telephone, gas, sewer, etc. necessary as a prerequisite for subdivision is not within that definition.
2.The work of ‘clearing’ the land is quite different from ‘excavating or filling’ a particular block - which is what the section looks at.
I am therefore persuaded that the work being carried out by R. and D. Civil was not work of the type envisaged by the Act - and it is an error of law to hold that it was.”
The work being carried out by D & R Civil did include excavation work. I do not think that the Tribunal has concluded otherwise. I read the Tribunal’s reasons as finding that D & R Civil was carrying out the work of clearing the site and work which included excavation but not excavation for constructing or erecting a building. The excavation work was for the purpose of installation of infrastructure for a subdivision.
I am not prepared to conclude on the strength of that evidence that the Tribunal erred in law in failing to find that the appellant was involved in excavating a site for the work of constructing or erecting a building. This appeal is limited to questions of law. Whether there was any evidence of a particular fact raises a question of law. The inferences which can be drawn from facts found raise questions of law. However, an error of law does not arise because of a wrong finding of fact: Australian Broadcasting Tribunal v Bond (1996) 170 CLR 321 per Mason CJ at 355 - 356. There was evidence upon which the findings of fact could be made. The inferences were open.
In my opinion the appellant has not, on this appeal, demonstrated that the Tribunal erred in law in failing to find that the appellant was performing building work as defined in s4 of the Builders Licensing Act and therefore carrying out a prescribed class of work as defined in reg4 of the Workers Rehabilitation and Compensation Claims and Registration Regulations.
I think the work which was being carried out by D & R Civil, whilst it involved some excavation, was work for the purpose of providing and constructing infrastructure and not building work within those definitions.
In my opinion the appeal should be dismissed.

WICKS

I agree that this appeal should be dismissed for the reasons given by Lander J.

[1998] SASC 6893

2 October 1998