Applicant v Respondent

Supreme Court of Victoria|2005-05-02|Before: HARPER, J

PAY-ROLL TAX - Application for leave to appeal from a decision of a non-presidential member of the Victorian Civil and Administrative Tribunal - Whether persons engaged by the applicant to perform interviews were employees or independent contractors - Whether circumstances materially different from those considered by the Court of Appeal in relation to the same question between the same parties for an earlier period - Whether the Tribunal's reasons sufficiently identified the basis for the decision - Error of law - Leave granted and appeal allowed - Pay-Roll Tax Act 1971, ss.3, 6, and 7.

2 The present dispute comes to me on an application for leave to appeal from a decision of the Victorian Civil and Administrative Appeals Tribunal ("VCAT"). The decision in question was handed down by a non-presidential member. A party to a proceeding before the Tribunal so constituted may, pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 and if leave to appeal is given, appeal on a question of law to the Trial Division of this Court. It is the application for leave to appeal that is before me now; but I am subject to a direction from the Court of Appeal that, subject to any order or direction that the Trial Division might make, the appeal itself - should leave be given - is to be heard by the judge who hears and determines the application for leave.[1] That judge, of course, is me. I have made no order or direction of the kind to which the Court of Appeal referred. Accordingly, I will proceed as the Court of Appeal directed.

3 One of the earlier jousts between the two present disputants was the subject of an unreported judgment dated 24 October 1997 of the learned President of the Court of Appeal (Winneke P) with whom Phillips and Kenny JJA agreed.[2] The Centre was the then appellant; the Commissioner (then, and before me) was and is the respondent. A central issue before me is whether the present proceeding is distinguishable from its predecessor. A description of the background of that litigation is therefore relevant. It was given by Winneke P at the commencement of his judgment. The President there said:

"The appellant is and has been for many years a well known and reputable research organisation, carrying on business as a conductor of and reporter on surveys of opinion. Because its business involves surveying many citizens in their homes on weekends upon an infinite variety of topics, the appellant engages on contract a number of persons called 'interviewers' to carry out the survey questioning for it in accordance with questionnaires designed by the appellant. These interviewers are engaged by the appellant upon what the appellant calls an 'assignment basis', and are expected to work about two weekends per month. They are expected to carry out their assignments in accordance with instructions carefully prepared and given to them by the appellant and they are paid a fee for each such assignment, fixed in accordance with a determination made by the appellant based upon the time which it assesses ought to be taken for completing the assignment. Although the interviewers are told by the appellant that they are engaged as 'independent contractors', the appellant in fact makes workers' compensation or Workcare payments on their behalf. The appellant, so the evidence revealed, attracts the interest of prospective interviewers through advertisements and word of mouth. When such interest is attracted it sends to the interviewer a 'letter of acknowledgement' in standard form. Relevantly the letter thanks the prospective interviewer for his or her 'interest in our part-time interviewing position' and encloses a 'questionnaire' for 'a practice interview with a friend'. The applicant is requested to engage in the 'practice interview' and to return the application form together with the completed questionnaire. The attached application form contains a 'declaration' which the applicant is asked to complete in the following form:

'I... hereby understand that the ID card, canvass bag, (ballet box and electoral map if available) I receive is the property of the [appellant] and in the event of my resignation/dismissal, I will be expected to immediately return the above to the [appellant].'

If the appellant accepts the application it sends to the interviewer a letter of 'appointment' which informs the interviewer (inter alia) that he or she is required to attend for an initial 'briefing session' before the first assignment 'to help ensure that all our interviewers throughout Australia use the same method'. With this letter the interviewer currently receives the appellant's 'Interview Manual' which he or she is asked to study 'very carefully' (emphasis attached)."[3]

4 It is trite, but in the circumstances of this case necessary, to observe that the Court of Appeal judgment forms an important part of the context within which the present proceeding falls to be considered. The Court of Appeal was concerned with an assessment to payroll tax for the period from 1 July 1980 to 31 December 1986. The present proceeding concerns a like assessment; but on this occasion two periods are under review. The first of these commenced on 1 January 1987 (the first day after the end of the period the subject of the litigation which resulted in the Court of Appeal's judgment) and ended on 30 June 1995. The second presently relevant period commenced immediately thereafter, on 1 July 1995, and ended on 30 June 1996.

5 In other respects, the two proceedings bear, on the surface if not upon proper analysis, every indication of being relevantly indistinguishable. The earlier litigation began in the Administrative Appeals Tribunal.[4] Upon receipt of the relevant assessment, the Centre gave notice of objection. The respondent disallowed it. On 23 April 1992, the matter was referred to the Tribunal. On 23 January 1996, the Tribunal handed down its decision. It held, on the basis that the interviewers were, relevantly, employees of the Centre, that the assessment should be affirmed.

6 The Centre appealed to the Trial Division of this Court constituted by Byrne J. In that case as in this, a question of law was involved in the Tribunal's decision. In each case it concerned s.6 of the Pay-roll Tax Act, which relevantly provides, in effect, that the wages liable to pay-roll tax are wages payable in Victoria for work done at least partly in this State. The question was, for the purposes of the earlier proceeding, formulated by Byrne J as follows:

"Were the payments made by the [Centre] to interviewers during the period 1 July 1980 to 31 December 1986 wages paid by an employer within the meaning of s.6 of the Payroll Tax Act 1971?"

7 The Centre claimed that, having framed the question, his Honour answered it incorrectly when he dismissed the appeal from the Administrative Review Tribunal. He did so on the basis that the contracts by which the Centre engaged its interviewers were contracts of service; and, this being so, the interviewers were employees and not independent contractors. The remuneration they received from the Centre therefore fell within the category of "wages paid by an employer within the meaning of s.6 of the Payroll Tax Act 1971".

8 Another appeal, on this occasion from the decision of Byrne J, followed; and by this means the earlier proceeding came before Winneke P, and Phillips and Kenny JJA. As Byrne J upheld the appeal from the Tribunal, so the Court of Appeal upheld the appeal from the judge. In the opinion of Winneke P, with whom Phillips and Kenny JJA agreed, it was not for the Court of Appeal to re-examine the evidence and then come to its own conclusion about the facts on which a correct legal analysis could be based. Rather, the onus was on the Centre to show that Byrne J had fallen into error. This, the Court of Appeal held, the Centre had failed to do. The President continued:

"But even if this Court were to take a wider view of its powers, namely that it should act upon its own view of the facts without first identifying error below, the result would be the same; for in this case I am firmly of the view that, on the evidence before him, the learned judge was right in his conclusion."[5]

9 Consistently with this, Winneke P made a further observation. Byrne J, the President noted, had correctly recognised "that his task of ascertaining the status of the interviewers involved an investigation and evaluation of the factual circumstances in which the work was performed and the application of established principles to those findings."[6] The latter are set out at pp. 4-6 of the President's judgment, and reproduced below (with his Honour referring to the Centre as "the appellant):

"• the appellant attracted its 'interviewers' by advertisement or word of mouth;

the applicants [for appointment as an interviewer] were required to conduct a 'practice interview' and to complete a formal application and declaration;
prospective 'interviewers' attended an initial briefing session where the appellant's procedures for interview were explained. At this session the prospective interviewers were told that if retained, they would be classed as independent contractors and the appellant would not be 'deducting tax on their behalf'. At the meeting the interviewers had their 'task spelled out in considerable detail'. They were told that the success of the research program depended upon their reliability and the care with which they followed the detailed procedures given to them;
the appellant paid its interviewers only on a 'fee for completed assignment basis' the amount and structure of the fee being determined by the appellant ... No tax would be deducted from that fee and interviewers were told that they were to make their own tax arrangements. Interviewers were told that they took the risk that if the task was not completed, no fee was payable;
the appellant did, however, make necessary workers' compensation or Workcare arrangements for the interviewers;
the appellant spelled out in considerable detail the circumstances in which the interviewers were to conduct interviews; including the questions to be asked, the way in which the questions should be asked, the manner of recording the answers and the fact that such interviews were to be carried out during weekends in areas selected by the appellant;
the appellant provided the interviewers with the materials necessary to carry out their task. Allowances were paid for pens and stationery and travel, if necessary. Although no uniform was provided, the interviewers were to dress neatly and to identify themselves as part of the appellant's team;
interviewers became part of a pool maintained by the appellant. They were entitled to accept or decline assignments at their discretion but, once accepting an assignment, were not entitled to delegate it, but to perform their task personally;
the appellant could summarily terminate an interviewer's assignment task for breach of protocol; otherwise poor performance would have the consequence that his or her name would be 'removed from the pool' or he or she would merely be offered no more work;
although there was no physical supervision of an interviewer in the course of assignment the appellant carried out spot audits of the work done to check both the legitimacy of the work and in certain respects the manner of performance. It was emphasised to interviewers that they were members of an Australia-wide network contributing to an important market research activity carried out by a 'prestigious organisation';
the appellant provided assistance and support to interviewers in carrying out their task. If required, advice and assistance was on hand if difficulty was encountered."

10 These findings, as Winneke P recorded at p. 6 of his judgment, led Byrne J to conclude "that the nature of the interviewer's task was a 'highly structured' one and one which subjected the interviewer to close direction by the appellant." Moreover, "[t]he appellant reserved to itself the power to direct the interviewer in the performance of his or her task and such was the structured nature of the interviewer's obligation that his Honour saw it as 'inconceivable' that ad hoc directions modifying the task could be resisted." The President then considered the nature of the exercise in which a judge in the position of Byrne J (and a Tribunal member in the position of the member whose decision is presently under appeal) should engage. His Honour said:

"Where, as here, the terms of engagement are not to be found in a written contract but are to be derived from a contract which is partly oral and partly to be implied, the legal character of the relationship created will depend upon the total effect of the terms as they are found to be. The exercise is not, as Tadgell JA observed in Green v Victorian Workcover Authority [1997] 1 VR 364 at 373, 'a mechanical one'. Rather it is a matter of obtaining the overall picture from the accumulation of details. Tadgell JA described the exercise by citing, with approval, a passage from the judgment of Mummery J in the case of Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 at 944 where his Lordship said of a determination whether a person was a servant or independent contractor:

'This is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.'

These views appear to me to be correct. Although technically it remains true that the question whether a person is engaged on a contract of service or for services is one of mixed law and fact, in reality the task of the trial judge in determining that question, in a case like the present one, involves the assessment and evaluation of evidence for the purpose of identifying and isolating factors or indicia which are capable of pointing in one direction or the other, and then weighing or balancing those factors in accordance with established principles, none of which is conclusive, in order to reach a conclusion. The task was aptly described by Gray J in Commissioner of Pay-roll Tax v Mary Kay Cosmetics Pty Ltd [1982] VicRp 87; [1982] VR 871 at 879 in the following terms:

'As with most cases in this area of the law, there is a good deal which can be said on each side of the argument. A court is usually faced with a large collection of relevant facts and circumstances, some pointing this way and some the other. The resolution of the problem usually comes down to a very subjective matter of individual impression. It all depends on where the emphasis is laid.'

So expressed, the resolution of the question becomes one of 'fact and degree' in respect of which views might legitimately differ."[7]

11 The decision of the Court of Appeal is of course binding on me, on the Tribunal, and on the parties. The Tribunal recognised this. At the conclusion of its reasons for judgment it said, at pp.159-160 of the relevant transcript (that is, the transcript of the hearing before it):

"It is of course axiomatic that I am bound by Byrne J's decision and the Court of Appeal's decision. I have endeavoured to approach this case on the footing that nothing previously had been said about it and to give a decision on the evidence before me alone today, as I must do."

12 The phrase "it does seem to me that I cannot ignore the decision of Byrne J and the Court of Appeal" is not strictly accurate. The law is simple. The decision of the Court of Appeal is not one that (to adapt the Tribunal's words) "it would seem, cannot be ignored". It is one by which the Tribunal is absolutely bound. Indeed, it is necessary to recognise that it is not only the decision that binds; it is both the decision and the reasoning behind the decision. It is true that the Court of Appeal spoke of "the problem usually [coming] down to a very subjective matter of individual impression" and "the question [being] one of fact and degree in respect of which views might legitimately differ". But when a court the judgments of which bind a tribunal has exposed the intellectual processes by which its impression has been formed, and has come to a decision based upon those processes, the tribunal is in no position to form a different impression unless the facts are so different that that impression can properly be distinguished from that at which the court has arrived.

13 Having examined the question whether the two cases (i.e. that before the Court of Appeal and that before me) are distinguishable, the Tribunal held that they were not. Immediately after the passage that is reproduced in paragraph [11] above, the Tribunal said:

"On the other hand, it does seem to me that I cannot ignore as a matter of precedent the decision of Byrne J and the Court of Appeal, and I have not been persuaded that there is anything in the evidence before me today which should as a matter of principle or precedent require a different result."

14 Given that the only immediately obvious point of difference is the period over which the assessment to pay-roll tax was made, that decision is unsurprising. The Centre, however, submits that, although the Tribunal failed to recognise it, there is more than that obvious difference. Indeed, by proposed ground 2 of its draft Notice of Appeal, it asserts that the Tribunal failed to give sufficient weight to the fact that the evidence had changed significantly from that presented in the proceedings concerning the assessment for the period between 1 July 1980 and 31 December 1986.

15 In the end, it seems to me, the Centre must fail in its resistance to the basis of the later assessments unless it can demonstrate that the relationship between it and its interviewers has materially changed. The onus is on the Centre. It must show, if it is to succeed, that the relationship which exists now is so different from the relationship as it existed between July 1980 and December 1986 that the reasoning which caused the Court of Appeal to characterise that relationship as one between employer and employee is no longer applicable.

16 This ought to have been the focus of attention when the present proceeding came before the Tribunal. No longer was it appropriate, or indeed proper, for the Centre to argue that, of themselves and in that combination, the findings of fact set out at paragraph [9] above established anything other than an employer/employee relationship. Some of those facts, as Byrne J acknowledged, point to a relationship of principal and independent sub-contractor. But the circumstance that concern is now directed at a new period of assessment does not of itself re-open for fresh evaluation the "impression" articulated by the learned President. Nor does it allow for a different evaluation of the factors which led the Court of Appeal to hold that, as a matter of "fact and degree", the proper conclusion is that the Centre's interviewers were also its employees. Were it otherwise, endless rounds of litigation would ensue, with pay-roll tax being levied in one period but not another. The resultant uncertainty would be inconsistent with the proper administration of justice.

17 On the other hand, relevantly unlike cases must not be treated as if the relevant difference or differences did not exist. And the introduction into the mix of a new fact or facts might so alter the balance that, as one stands back from the detail, a new picture might emerge. To repeat the quotation from the judgment of Mummery J in Hall v Lorimer (set out at paragraph [10] above) it would then be necessary to make afresh "an informed, considered, qualitative appreciation of the whole."

18 This process is not necessarily easy. The Centre contends that the Tribunal's examination of the factual and legal basis for making a distinction between the taxation periods in question was deficient. At the least, the Centre argues, the Tribunal in giving its reasons for its decision failed to adequately disclose its reasoning process. For example, both Byrne J and the Court of Appeal, when dealing with the earlier assessment, were at pains to examine in detail not only the evidence but also the findings of fact which could be supported by it. The Tribunal ought to have done the same thing. Moreover, Ms Tanya Cirkovic, the practitioner who appeared before the Tribunal on behalf of the Centre had, as the Tribunal itself acknowledged, provided "most helpful submissions"[8] and "a list of matters which she [that is, Ms Cirkovic] says are adequate to distinguish this case"[9] from the earlier proceeding.[10] Not only this, but the Tribunal noted a lack of controversy about the evidence generally, and accepted that each of the centre's witnesses was a witness of truth. All this points to the conclusion that the Centre had at least an arguable case even if, ultimately, the merits were shown to be with the Commissioner. If so, the Tribunal was required to include in its judgment a considered examination of that case. Despite this, the Tribunal failed to set out the results of its examination, if any, of Ms Cirkovic's list. It also failed to identify the evidence upon which it relied in reaching its conclusion that the present case should not be distinguished from its predecessor. The reasoning behind that conclusion therefore remains unknown.

19 According to the Centre, that is not good enough. We are here concerned with an issue at the heart of the differences between the Centre and the Commissioner. At common law, a body from whom an appeal lies to a court must give reasons for its decisions; and while the adequacy of those reasons will depend on the particular circumstances, they must enable an appellate court to ascertain whether the court or tribunal from whom the appeal is taken has fallen into relevant error.[11] They must likewise satisfy those interested in the losing case that the evidence and submissions advanced in its support have been considered, with comprehensible reasons being given for the ultimate result.[12] To the extent that s.117 of the Victorian Civil and Administrative Tribunal Act adds anything to these requirements, there is the obligation imposed by that section upon the Tribunal to give reasons in which must be included its findings on material questions of fact.

20 The Centre therefore contends that both at common law and by statute the Tribunal is required to provide adequate reasons for its decision. A failure to do so itself constitutes an error of law.[13] Indeed, according to the Centre, this point has now been reached in the present proceeding. After referring to "the last two pages of the Tribunal's reasons", the written summary of the Centre's submissions continues:

"In theses passages the Tribunal refers to earlier decisions of Byrne J and the Court of Appeal which dealt with the legal status of the interviewers engaged by the [Centre] between 1980 and 1986. The Tribunal acknowledges that the appeals which it is then hearing relate to two different periods and that evidence had been called by the [Centre] to support a submission that there were material differences in the evidence led before the Administrative Appeals Tribunal in the earlier case and the evidence led in the present appeals as to the contractual arrangements between the [Centre] and the interviewers. Those differences are not identified. No findings are made as to whether or not the Tribunal is satisfied that the differences existed. The Tribunal then moves immediately to the conclusion that it had 'not been persuaded that there is anything in the evidence before [it] today which would as a matter of principle or precedent require a different result' from that arrived at in respect of the earlier appeal. Given the failure to make the necessary findings of material facts this Court is disabled from determining by reference to the differences (if any) between the evidence as to the contractual arrangements which obtained in the 1980-86 period and those which obtained in the two later periods were such as to support this conclusion."[14]

21 As I understand it, the gravamen of the Centre's case in the present litigation is set out in the above passage. It is that, in the years following the assessment period 1 July 1980 - 31 December 1986, its interviewers as a matter of law ceased to be employees and became independent contractors. It bases this contention on material changes in the factual circumstances underpinning the relationship. Whether such changes occurred is, accordingly, a material question of fact. In my opinion, s.117 of the Victorian Civil and Administrative Tribunal Act therefore requires that the Tribunal's findings on this point be included in its reasons.

22 Even without the Act, the common law, albeit by calling upon the logic of paradox, reaches the same conclusion. Sun Alliance Insurance Ltd v Massoud is one of a number of authorities for the proposition that reasons for judgment will be inadequate if the appeal court is unable to ascertain the reasoning upon which the decision is based. [15] In these circumstances, the appeal court will be unable to give effect to the disappointed party's right of appeal because it will be unable to ascertain whether the court or tribunal from which the appeal has come has fallen into relevant error. But it is the failure of the lower court or tribunal to give adequate reasons that has led to this circumstance. That failure is therefore in itself a relevant error.

23 As is often the case, it is easier to state the principle than apply it. Brevity in judgment writing is a virtue; but only if it does not come at the expense of completeness. Getting the balance right is just one of the difficulties of a generally difficult exercise. It is no business of a court to insist that members of tribunals deliver a thesis with every judgment. On the contrary, tribunals are expected to deliver justice with speed and economy, and against these imperatives must in their judgments be as brief as the circumstances permit.

24 Depending on the strength or otherwise of the evidence called on behalf of the Centre, and depending on the relevance of that evidence, the difficulties faced by the Tribunal in this case may have been unusually acute. It could not avoid being greatly influenced by the judgment of the Court of Appeal in the earlier case, even if it ultimately decided that that case should be distinguished. Indeed, the Tribunal was bound to accept that, on the evidence called in the earlier proceeding, the instructions given by the Centre to its interviewers required them - in conducting the interviews which were the very essence of the task for which they were engaged - to ask carefully constructed questions, to ask them exactly as specified, and to conduct the interview in precise compliance with the Centre's instructions. In the words of the learned President, at pp.10-12 of his judgment:

"It was in the nature of the [Centre's] business that the answers which it obtained from [those being interviewed] should be obtained in a manner which, so far as possible, ensured their accuracy and reliability. To that extent the instructions given to the interviewers insisted that there be no deviation from the questions set, that emphasis be given where designated, and that questions be asked in strict accordance with the formula provided. Thus ... interviewers were instructed that it was 'very important that you ask questions clearly and exactly as worded, stressing words underlined and bolded (sic)' (their emphasis). Interviewers were told that they should study the interview before they embarked upon it and 'practise [it] at home'. Interviewers were instructed to start at the exact starting point given to them and then proceed 'clockwise'. They were told that the interviewing should only be conducted at weekends and that the 'best time to begin is 9.30 am on Saturdays, otherwise you will not find enough people at home' ... Many other 'do's' and 'don'ts' are included in the instructions. These would seem to me to go as much to the manner of performance of the task as to its nature ...

I am, thus, unable to accept the contentions made on behalf of the [Centre] that his Honour failed to distinguish between 'direction and control of the task' assigned to the interviewer on the one hand and 'direction and control over the manner of its performance' on the other, or that instructions as to manner of performance were for guidance performances only. In my view his Honour's reasons cannot be so criticised. On the material before him he was entitled to find that the [Centre] reserved to itself the right to control not only performance of the task assigned but also the manner of its performance ...

In my view it was well open to his Honour, on the material before him, to find that the degree of control being reserved by the [Centre]to direct both the nature of the task and the manner of its performance pointed towards the relationship of employer/employee. That material, as I see it, does not permit any significant distinction to be drawn between the control exercised in respect of the nature of the task and the control exercised over the manner of performance of that task."

25 It would seem from the above passage that the learned President placed particular importance on the degree of control exercised by the Centre over its interviewers while interviews were in the course of being conducted. That view is strengthened by what his Honour said at pp.15-16 of his judgment:

"The [Centre] has, over many years, established for itself a reputation for providing accurate opinions from the surveys which it conducts. It is thus inherent in the nature of its business, and indeed critical for the maintenance of its reputation, that the surveys which it conducts are carried out strictly in conformity with its instructions. It is no doubt for this reason that it maintains, as the evidence indicates, a strict control and direction over the task which its interviewers are to perform and the manner in which that task is to be performed. Accordingly the instructions given to the interviewers to which I have already made sufficient reference leave very little to the discretion of the interviewers. Indeed so little is left to the discretion of the interviewer that the [Centre] was constrained to argue that the 'independent business' being conducted by the interviewers was the business of organising their affairs so that the interview could be conducted at a time to suit their own convenience and employing their own skill so as to induce the [prospective interviewees] to participate in the interview.

In my opinion, on no sensible view of the evidence could it be said that the interviewers were conducting such a business on their own account, as distinct from participating in the business of the [Centre]. In truth they were engaged by the [Centre] to conduct interviews on behalf of the [Centre] in a manner and form strictly controlled by the instructions given to them by the [Centre]."

26 As the authorities emphasise, the scene must be surveyed in its entirety. No one part may be allowed to dominate to the exclusion of the balance. But some parts are more equal than others. In this case, the degree of control by the Centre over the interview process[16] was seen by the Court of Appeal as having especial significance in the particular circumstances of the Centre's business. It follows, as it seems to me, that even were there before the Tribunal in the present proceeding (to repeat the Centre's submissions as set out in paragraph [20] above) "evidence [that] had been called by the [Centre] to support a submission that there were material differences in the evidence led before the Administrative Appeals Tribunal in the earlier case and the evidence led in the present appeals as to the contractual arrangements between the [Centre] and the interviewers" the Tribunal would necessarily continue to be concerned about the degree of control exercised by the Centre. In those circumstances it would I think be imperative for the Tribunal to describe in its judgment what the (allegedly) material differences in the evidence were, and then to reveal what effect those differences had on the Tribunal's ultimate decision.

27 The Tribunal failed to fulfil this obligation. It said that it was impressed by the Centre's witnesses. It also accepted each of them as a witness of truth. It was argued before me that this did not mean that the Tribunal necessarily accepted their evidence, only that they were honest but might have been mistaken. But truth means truth, not honest mistake. And in any event, the Tribunal also spoke of the evidence as being uncontroversial. In combination, it must on the basis of these statements be that the Tribunal accepted the evidence called on behalf of the Centre. Yet it found for the Commissioner. This could only be if the Centre's evidence was either irrelevant or (which is much the same thing) was insignificantly different from that called before Byrne J. Yet the Tribunal said nothing about the relevance of that evidence. Nor did it explain why, despite its accuracy, the evidence did not result in a conclusion in the Centre's favour. In particular, it did not explain how truthful evidence, if relevant, nevertheless was insufficient to distinguish the present case from that concerning the earlier assessment.

28 The Tribunal referred to the extent of the supervision by the Centre of its interviewers as being of "paramount importance", and to a submission put by Ms Cirkovic that there was, in truth, no actual control exercised over the interviewers. The Tribunal did not explicitly state that those submissions were rejected. It did, however, "find it hard to see how [the Centre] can capture that information properly unless it controls the way its people get it." (Emphasis as in the original). The Tribunal then referred to the list provided by Ms Cirkovic, and to the status, as a precedent, of the judgment of the Court of Appeal.

29 It was submitted on behalf of the Centre that the Tribunal must in these circumstances have taken the issue of control as not merely paramount but determinative. There is force in that submission. If it reflects the Tribunal's position, then the Tribunal was mistaken. In any event, one's inability to be confident on the point is itself an indication that the Tribunal's judgment was insufficiently explicit about a matter of central importance.

30 Other indicia point in the same direction. Having said that it would "go to the various matters listed by Ms Cirkovic's most helpful submissions"[17], the Tribunal considered a range of issues: supervision; control; pay; the right to decline to offer - and the right to decline to accept - an assignment; distinctions between the interviewers and those who, in the Tribunal's words, "I think I can call real employees"[18]; and the elements of skill and risk in the interviewers' role. As I read their reasons for judgment, all these matters were also taken into account by Byrne J and the Court of Appeal. It was therefore pointless to deal with them again unless the context had changed to the degree necessary if a new picture were to be created from a fresh accumulation of details. Were that situation to arise, everything of relevance would need to be examined anew; but that situation would not be reached unless at least some of those details were significantly different from those that made up the picture as viewed by the Court of Appeal.

31 Certain consequences follow. Unless the judgment of the Tribunal either identifies the significantly different details (and thereby distinguishes this case from the earlier assessment) or explains how it is that those relied upon by the Centre as such do not meet the appropriate test (with the result that the Tribunal is bound to reach the same result as the Court of Appeal) that judgment will not meet the requirements established by (among other authorities) the Sun Alliance case.

32 In my opinion, the Tribunal neither identified nor explained in the terms to which I have referred. It mentioned Ms Cirkovic's "list of matters which she says are adequate to distinguish this case" from that dealt with by Byrne J and the Court of Appeal. But the Tribunal omitted to identify the "matters" on the list, and did not explain why those "matters" do not do what she in her "most helpful submissions" contended that they did. It follows, I think, that the Centre can justifiably argue that the reasons are inadequate because they do not enable the losing party to see that justice has been done.

33 In the course of the hearing before me, I was informed by senior counsel for the Centre that "we have had a look and inspected the Tribunal file and we do not find any list on it." The contents of Ms Cirkovic's list are therefore now unknown. The Centre did, however, put forward a number of points of distinction between the circumstances of the present assessments and those which obtained in the past. First, during the period of concern to Byrne J prospective interviewers were told that the Centre classed them as independent contractors, that they were not "on pay-roll" and that tax was not deducted on their behalf. His Honour said of this evidence:

"This is an important factor and one which would be most telling if it stood alone. In the present case, however, the expression appears to have been used in the context of the non-deduction of income tax instalments and in terms which are not altogether clear in any given case."

34 That factor does now stand alone. Interviewers have since the beginning of 1987 signed an acknowledgment that they are independent contractors. Given the importance attributed by his Honour to the question of classification, (albeit that the parties cannot by mere words alter underlying facts) the new acknowledgment must become part of the total picture; and its effect on the whole must necessarily be described in any judgment on the pay-roll tax position during the relevant assessment period.

35 The second point of distinction now put forward by the Centre is that interviewers, while engaged by the Centre during the currently relevant period, accepted work from other organisations, including organisations which operate in the same field as that of the Centre itself. There was no evidence of this phenomenon before the Administrative Appeals Tribunal or before Byrne J; but such evidence was before VCAT in the present case. Again, an evaluation of the effect of this new circumstance should be included in any judgment dealing with an assessment of the pay-roll tax properly then chargeable.

36 A final point of distinction concerns the legal personality of some of those with whom the Centre entered into contracts for the provision of interviewers. They were, and are, corporations who made available their personnel for that purpose. Their corporate status has the effect that these contracting parties could not be said to receive wages from the Centre. And if they do not, how is it said that individual interviewers engaged directly by the Centre are relevantly different? This too is a matter which the Tribunal should, in my opinion, examine in its judgment.

37 The Commissioner submits that the Tribunal's reasons are sufficient. It makes the point, which on the basis of the judgments of both Byrne J and the Court of Appeal is I think justified, that the exactitude demanded of its interviewers by the Centre in their conduct of the interviews is a consideration of especial weight. The Commissioner moves from that point to argue that the Tribunal, having taken the evidence and the contentions of the Centre into account, simply acknowledged that fundamental truth. In other words, the Tribunal looked at that which was said to change the picture, and properly decided that it had not been changed at all, or at least not so as to necessitate a re-forming of the impression at which the Court of Appeal arrived.

38 I accept that the findings to which I have just referred might well be open following a full examination if the case for both sides. So long as the Centre seeks to control the conduct of interviews to the extent operative during the period under review by the Court of Appeal, the importance of that Court's judgment as a precedent will be crucial and perhaps decisive. That is not, however, what causes me present concern. I am troubled, rather, by my inability to know whether or not the Tribunal, before it decided against the Centre, adequately took into account the evidence called by it, the truth of which it accepted, and the submissions put forward on its behalf, which it found most helpful. There is here a discordance between the ingredients and the end product. It remains unexplained.

39 In my opinion, the Centre is entitled to a judgment that explains how the Tribunal has dealt with those facts and circumstances that have changed since the beginning of 1987. If this end is to be achieved, the application for leave to appeal must be granted, the appeal heard instanter, and allowed. I will order accordingly. I will also order that the matter be remitted to the Tribunal for hearing before a member other than the member who heard the matter originally.

[1] See The Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2003] VSCA 199 at [13].
[2] The Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (unreported, Court of Appeal, 24 October 1997)
[3] Ibid, at pp. 1-2.
[4] The Administrative Review Tribunal was, in effect, the predecessor of the Victorian Civil and Administrative Tribunal. I shall, in general, refer to both as "the Tribunal". The context should indicate to which of the two the reference is made.
[5] The Roy Morgan Research Centre Pty Ltd v The Commissioner of State Revenue (unreported, Court of Appeal, 24 October 1997) at p.9.
[6] Ibid, pp.3-4.
[7] Ibid, pp.7-9
[8] The Tribunal's reasons for judgment at transcript p.153.
[9] Ibid, at p.159.
[10] In this context, it is also to be noted that the learned President described Ms Cirkovic's advocacy on behalf of the Centre at the hearing of the earlier appeal as commendably thorough. Of course it does not follow that the Centre should prevail; but, equally, it does not lessen the duty of the Tribunal to explain why her submissions did not find favour.
[11] Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8 at 18

[12] Ibid. Gray J there said that reasons will be inadequate if justice is not seen to have been done. I have adapted this proposition to accommodate the dissatisfied losing party, who may have an idiosyncratic view of the results which the doing of justice should produce.

[13] Pettit v Dunkley [1971] 1 NSWLR 376 at 387-388.
[14] Summary of Submissions ... on behalf of the Applicant, 31 March 2004, p3, para. 8.
[15] [1989] VicRp 2; [1989] VR 8 at 18 per Gray J, with whom Fullagar and Tadgell JJ agreed.
[16] It is to be observed that, contrary to submissions that, as the Tribunal recorded them, were put to the Tribunal by the Centre, the essential issue is not the degree of control in fact exercised over an individual interviewer in an individual case, but the degree of control that the Centre sought to impose.
[17] The Tibunal's reasons for judgment, at transcript p. 153
[18] Ibid, p.157.

At a glance

Court

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Judgment (65 paragraphs)

Parties