Concrete Constructions Pty Ltd v Barnes [1938] HCA 65

Concrete Constructions Pty Ltd v Barnes [1938] HCA 65 - HCA 1938 case summary — Zoe

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person " in sec. 7) in the position of a building owner, with whom tl contractor has made a contract. In my opinion it is clear enough that the other provisions of th Act would enable the workman to secure payment from the cor tractor, because he could sue the sub-contractor as his employer and after obtaining judgment, obtain a certificate and serve it upon th contractor who, as a contractee under the prior provisions of tl Act, would thereupon become bound to pay the workman out of th moneys due or to accrue due by him to the sub-contractor. It m } therefore be argued that the object of sec. 18 cannot be merely t impose a liability under the Act upon the contractor - the pi provisions of the Act having already accomplished that objec But it must be recognized that difficulties might have arisen in #l case of four persons unless a provision like sec. 18 had been inelud in the statute. It might have been argued that the Act applied on to cases where three persons were concerned, and there might been uncertainty as to whether the workman was entitled to ob a remedy against a person who was in fact a contractor but who, i order to be made liable under a certificate, would have to be tres as a contractee. Further, it might have been argued that a sul contractor could not be a contractor within the meaning of the A Upon this view a reason appears for the inclusion of the first p of sec. 18. The first part of sec. 18 makes a contractor responsible for th wages of the workman employed by a sub-contractor " to the ext provided for by this Act," that is, as I have suggested, by the pt visions of the Act other than sec. 18. Those provisions do not en any liability between an employer and a workman whom he emplo} The liability of the employer to pay wages depends upon a conti which is enforceable at common law or possibly under the Ind Arbitration Act or possibly under the Masters and Servants Act. only responsibility which the Act creates and to which the first p of sec. 18 can refer is a responsibility to pay upon a certificate. is the responsibility which is imposed upon a contractor und first part of sec. 18. The responsibility is a responsibility "t extent provided for by this Act." These words introduce, in case of wages, first the exclusion of liability where there could h

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been a lien (sec. 4), secondly the sixty days limitation (sec. 5). In my opinion they also introduce the third limitation created by or referred to in secs. 7, 8, 9 and 11, namely, the limitation in amount of the liability of a person who is treated as a contractee to the amount of moneys which are due or to accrue due from the contractee to the contractor - that is, in the case of sec. 18, to the person there called the sub-contractor. It is difficult to suggest any reason, based upon the words of the first part of sec. 18, why the two former limitations 'should be included and the third excluded. Indeed, the words 'must, I think, be interpreted as including all the limitations, or none. If they include none, they become meaningless. Thus, to sum up, the first part of sec. 18 prevents a contractor arguing that he cannot be treated as a contractee because he is a contractor, and it also -excludes any contention that a sub-contractor is not a contractor within the meaning of the Act. Further, the words " to the extent provided for by this Act" introduce all the limitations to which I have already referred. The second part of sec. 18 provides that the workman or tradesman "may proceed against the contractor, as in this Act provided, as if he had been directly employed by or had directly contracted with him." This part of the section is complementary to the first part. The first part declares the responsibility of the contractor where there are a head contractor, a contractor, a sub-contractor and a workman. The responsibility of the contractor is limited in extent by the Act. But this provision only takes the workman as far as the contractor

not as far as the head contractor. It would be possible to argue that, when he had obtained a certificate against the contractor, he had exhausted the remedies of the Act, because there could not be -acertificate upon a certificate. The Act provides only for a certificate upon and after a judgment (sec. 3). How then could provision be made to enable a workman to reach a head contractor if both a 'contractor and a sub-contractor defaulted ? If the scheme of the Act were to be preserved, the only answer could be that provision must be made to enable the workman to get, not merely a certificate against the contractor, but some judgment against the contractor upon which a certificate against the head contractor can be based. 'This is what sec. 18 accomplishes. It first makes it clear that,

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intended to permit a worker employed by a sub-contractor to the contractor for the purpose of obtaining a certificate as to tl balance due for wages, so that he might use it to procure an ment pro tanto of any debt due either to the contractor by bis origi contractee, or due by the contractor to the sub-contractor." The difficulty in this view is that the Act provides for no indepe dent proceedings for a certificate. It simply authorizes or requi a court to grant a certificate to the plaintiff in proceedings insti and maintained at law quite independently of the Act. it does mean that the moneys payable by the contractee to contractor may be intercepted to answer a debt of the sub-cont to his workman or tradesman, and so intercepted whether the tractor has or has not paid the sub-contractor in full, it is to see why it should stop short of imposing a personal liability up him. Jordan C.J. took the words "to the extent provided refer to the limit imposed upon the amount of wages for which certificate might be granted, viz., sixty days' wages. After e ing several suggested meanings of the section, his Honour expres his conclusion as follows : - " The present section to be intended to impose some form of personal liability on a ¢ tractor, who is merely a contractee for the purposes of the e sections. I think that what the Act means is that the contrac shall be responsible to the extent of not exceeding sixty days' for the wages of the workmen employed by a sub-contractor ont job the subject of the contract, that a workman employed by sub-contractor may proceed against the contractor to enforce t responsibility, and that he may, if he chooses, in such pi obtain not only judgment against the contractor, but a ce i enabling him to garnishee summarily moneys payable by the ¢ tractee to the contractor, in the same way as if the contractor ¥ his actual employer. This was, I think, the view taken of the sect by the Full Court fifty years ago in the cases of Hx parte Monie and Ex parte Johnston (2). In Ex parte Thompson (3) it was h not that the workman could not recover from the contra'

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Judgment (159 paragraphs)