Babaniaris v Lutony Fashions Pty Ltd

Babaniaris v Lutony Fashions Pty Ltd - [1987] HCA 19 - HCA 1987 case summary — Zoe

[52]

The facts of the case as found by the Board were set out in the case stated and are as follows: (a) At all times material the respondent engaged in the trade or business of garment manufacture. (b) The respondent engaged in such trade or business at premises owned or occupied by it and situated at 5 Harker Street, Burwood in the State of Victoria. (c) Further, the respondent also engaged in such trade or business by giving out pieces of garments of different types to be made up or finished by persons in their respective homes. (d) In or about January 1981 the applicant sought work as a machinist from the respondent, such work to be performed by the applicant in her own home. (e) The applicant was an experienced machinist and an expert dressmaker. (f) An arrangement was reached between the applicant and the respondent for the applicant to perform sewing work in her own home for the respondent on partly manufactured garments supplied to her by the respondent. (g) The applicant was supplied with sample garments to indicate the nature of the work to be done, with her attention being drawn to any difficult aspects thereof. (h) The applicant carried out activities of the nature described in pars. (c), (d) and (f) at her home in the period from in or about January 1981 to June 1982 pursuant to the arrangement referred to in par. (f). (i) The applicant carried out the activities previously referred to using a power operated sewing machine owned and/or supplied by her. As between herself and the respondent the applicant supplied the electric power to operate the said machine. (j) The applicant determined on what days, for what hours and at what speed she carried out such activities. However, at times the respondent would ask that particular items be completed by the applicant within a nominated time causing the applicant to work at a fast rate. (k) The items upon which work was to be done by the applicant were brought to her home by an employee of the respondent. (l) The items upon which work had been done by the applicant were either collected from her home by the same employee of the respondent or else delivered by the applicant to the respondent. It was the duty of the said employee to check the work done by the applicant. (m) There was no supervision or control of the applicant carried out by the respondent or by anyone on its behalf or sought to be carried out by the respondent or by anyone on its behalf in the actual performance of the work or indeed of any aspect of the work nor did the respondent reserve to itself the right to exercise any such supervision or control. (n) The applicant was paid on a piecework basis by the respondent, the rate varying according to the item upon which work was done, particular periods of time being allowed by the respondent for items of different kinds. This rate was negotiable between the applicant and the respondent. The amount paid by the respondent to the applicant varied from week to week from a minimum of approximately $90 to a maximum of approximately $450. (o) The respondent made ex gratia payments to the applicant of holiday pay for the Christmas break and for public holidays at a rate equivalent to the rate paid by the respondent to its employees on the factory floor. The respondent also paid termination pay to the applicant upon the termination of the arrangement between them. (p) It was open to the applicant to take time off at any time upon notice to the respondent. (q) From the moneys paid from time to time by the respondent to the applicant for work performed by her and in respect of holiday and termination pay the respondent made deductions for income tax. The respondent did not inform the applicant that such deductions would be made at any time prior to it making the first payment to her. (r) The applicant did not in the period referred to in par. (h): - (i) carry out any work for any person other than the respondent (ii) advertise her availability to carry out any work for any person other than the respondent. (s) At all times material: - (i) The applicant was performing work for the respondent pursuant to a contract for services made between them and was an independent contractor; (ii) the contract was entered into by the respondent in the course of and for the purposes of its trade or business; (iii) the contract was one under or by which the applicant agreed to perform work; (iv) the work to be performed by the applicant was not work incidental to a trade or business carried out by the applicant in her own name or under a firm or business name; (v) in the performance of the work the applicant did not either sublet the contract or employ workers. [sic] (w) By reason of the findings set out herein, the applicant was at all times material deemed to be working under a contract of service with an employer and the respondent was deemed to be that employer. (x) Within the period referred to in par. (h) and in the course of or arising out of the work performed by her, the applicant suffered personal injury, which injury resulted in or materially contributed to the applicant's incapacity for work. (y) By reason of the finding set out in pars. (w) and (x) the applicant was entitled to compensation under the provisions of ss. 9 and 26 of the Act. Consequent on those findings of fact, the Board made an award in favour of the appellant against the respondent for weekly payments of compensation for total incapacity from June 1982 to continue in accordance with law and for payment by the respondent of reasonable medical and like expenses incurred by the appellant and for legal costs.

[64]

Mr. Hill, who appeared for the appellant, advanced as one ground of appeal the admitted fact that the respondent did not attack the decision in Little when the matter was before the Board and that the Full Court erred in allowing the respondent to raise the issue on the hearing of the case stated. We have given anxious consideration to this aspect of the matter but we do not think that the due administration of justice would permit this Court to reverse the decision of the Full Court solely on this ground. We do not fail to recognize that it is of great importance in the conduct of litigation that a litigant should be bound, on appeal, by the manner in which his case has been conducted at first instance: McCormack v. Federal Commissioner of Taxation [28] ; University of Wollongong v. Metwally [No. 2] [29] . But regard must be had to the circumstances of the case. The question whether to allow the issue to be raised is discussed in the judgments of the Full Court and it is apparent that the members of the Court were alert to the important principle that was involved. It is observed that in its answer to the claim for compensation the respondent denied that the appellant was a worker. Furthermore, questions 3(a) and (b) in the case stated are wide enough to raise an issue as to whether the decision in Little was correct. More importantly, Mr. Hill was invited by the Full Court to suggest any way in which the answer to the argument that the definition of "outworker" applied to those who fell within s. 3(6) could have been affected by evidence or any way in which the conduct of the appellant's case before the Board might have been affected if Little had then been challenged. He was unable to do so. He was offered an adjournment but did not avail himself of the offer. It was a matter calling for the exercise of the Full Court's discretion. The Court was unanimous in its decision in this regard and in our respectful opinion there is no ground upon which this Court would be justified in interfering with it: see Coulton v. Holcombe [30] .

[101]

The orthodoxy of non-intervention even by a supreme appellate court to reopen the construction of ambiguous statutes was accepted by the House of Lords in Hanau v. Ehrlich [51] where Earl Loreburn L.C. said: I agree with Vaughan Williams L.J. that it is not right for even this House to reopen points of construction upon ambiguous language which have been settled for a long period of years; and I advise your Lordships to decide this case upon that ground. To my mind, when doubtful words in a statute have for a long period been decided in a particular sense, we ought not to reopen the matter if we can help it. The doctrine "Interest reipublicae ut sit finis litium" ought in such a case to apply. The ground of this decision, according to Craies on Statute Law, 7th ed. (1971), p. 154, is the axiom stare decisis. That axiom attributes authority to judicial precedents in order "to keep the scale of justice steady, and not liable to waver with every new judge's opinion", the first decision being a solemn declaration that "what before was uncertain and perhaps indifferent, is now become a permanent rule": Broom's Legal Maxims, 10th ed. (1939), p. 90. However, when a court is faced with an earlier decision of long standing construing an ambiguous statute and the earlier decision is not binding upon it, the court must decide where the balance of advantage lies between intervening and not intervening to re-examine and perhaps to correct the earlier decision, even when the problem arises before a court of final instance with respect to one of its own decisions: Geelong Harbour Trust Commissioners v. Gibbs Bright & Co. [52] ;Baker v. Campbell [53] . If the problem arises with respect to a decision by a lower court, a number of factors fall for consideration in deciding where the balance of advantage lies: see Halsbury's Laws of England, 4th ed., vol. 26, par. 581. On the one hand, there is Lord Loreburn's speech in West Ham Union v. Edmonton Union [54] : Great importance is to be attached to old authorities, on the strength of which many transactions may have been adjusted and rights determined. But where they are plainly wrong, and especially where the subsequent course of judicial decisions has disclosed weakness in the reasoning on which they were based, and practical injustice in the consequences that must flow from them, I consider it is the duty of this House to overrule them, if it has not lost the right to do so by itself expressly affirming them. On the other hand, the general reluctance of a court of final instance to intervene appears in Lord Reid's speech in Campbell College, Belfast (Governors) v. Northern Ireland Valuation Commissioner [55] : I would not seek to lay down any general rule as to the circumstances which ought to prevent this House from correcting a long standing error. But one consideration is, I think, of paramount importance. In arranging their affairs people are entitled to rely on a decision which appears to have gone unchallenged, and it would require some exceptional reason to justify a reversal if it appeared that that was likely to create any serious embarrassment for those who had acted on the faith of what seemed to be settled law. The circumstances in which Lord Loreburn contemplated that the power to overrule might be exercised have not been treated as conditions always to be satisfied before the court intervenes: see Brownsea Haven Properties Ltd. v. Poole Corporation [56] . This is perhaps inevitable in an area where considerations of practical justice or injustice may be particularly persuasive. 1. [1919] A.C. 815, at p. 874. 2. [1912] A.C. 39, at p. 41. 3. (1974) 129 C.L.R. 576, at pp. 583-584. 4. (1983) 153 C.L.R. 52, at p. 103. 5. [1908] A.C. 1, at pp. 4-5. 6. [1964] 1 W.L.R. 912, at p. 918; [1964] 2 All E.R. 705, at p. 710. 7. [1958] Ch. 574, at p. 604.

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