(v) that the relevant PPS deduction was not made (paragraphs 6, 7, 8, 9 and 10 of the amendment).
34 Each of the material facts, sufficient to establish the above elements, is pleaded in the paragraphs outlined above. Further, the plaintiff, in the proposed amended statement of claim, nominates the payments to each Nominee that were made on behalf of the subcontractors, performing the relevant work, and received on their behalf, and that the payments were not received by the Nominees to carry out work within the definition in regulation 126. The Commissioner claims that the Nominees were not entitled to exemption or to lodge a payee declaration because, relevantly, they were not payees under these provisions.
35 The difficulty for Trimcoll is that, because the persons who are alleged to have carried out the work are "unnamed", Trimcoll says, amongst other things, that it is unable to prepare and defend the case against it. Trimcoll, amongst other things, submits that it is necessary for the "unnamed third parties" to be named, in order for it to prepare properly and to present its case, or to defend adequately against the claim.
36 At all times, the Commissioner bears the onus, on the civil standard, in relation to any proceeding that eventuates.
37 The principles that apply to that which is necessary to be in pleadings (as distinct from that which may be required by way of further and better particulars) are easily stated, but applied with greater difficulty. Pleadings allege facts, not evidence, and must allege all of the material facts upon which the cause of action depends: Darbyshire v Leigh [1896] 1 QB 554; Kirby v Sanderson Motors Pty Limited [2002] NSWCA 44; (2001) 54 NSWLR 135.
38 Pleadings must be brief, and, while sometimes this principle is honoured more in the breach than in the observance, nothing the courts should do should discourage such an approach.
39 The case presented by the Commissioner is an unusual one. It relies on the proposition that the nominated entities to whom Trimcoll made the relevant payments are not engaged in the building and construction industry and did not contract with Trimcoll for building and construction work (as I have defined it, namely, work within the description in regulation 126). Further, it alleges that building and construction work was done (by the unnamed parties) for Trimcoll and the payments made to the nominated entities by Trimcoll, were, in truth, payments to the unnamed third-party subcontractors.
40 For Trimcoll to be found liable of an offence, assuming all other relevant factors, it must have been engaged in work described in regulation 126 (hereafter building and construction work), the work must have been carried out by other than employees, and payments must have been made for that work without deducting the relevant deduction.
41 Because the persons to whom payment was made (i.e. the Nominees) by Trimcoll were not themselves engaged in building and construction work, or liable to perform that work under a contract with Trimcoll, Trimcoll was not required to deduct an amount, because the amount paid to them was not a prescribed payment within the meaning of the Act. "Contract" and "work" are defined terms within the meaning of s 221YHA of the Act.
42 Relevantly, the proposed amended statement of claim alleges sufficient facts to establish, if proved, that Trimcoll was an eligible paying authority. Further, the proposed amended statement of claim alleges that work was performed, which is within the terms of regulation 126, therefore, a deduction (to the extent not otherwise exempt) is required to be made.
43 Further, it alleges sufficient to show that the deduction ought not be made in relation to the Nominees described in the proposed amended statement of claim. And it alleges sufficient to understand why payment should have been deducted, namely, because it was, in truth, a payment to the unnamed subcontractors. This allegation may or may not be correct, but involves a construction of the Act on the basis of facts that are alleged.
44 Section 221YHD of the Act requires a deduction of a particular amount, if a payee declaration has been made to the eligible paying authority. Since Trimcoll is the eligible paying authority (on the allegation in the proposed statement of claim), it can easily deny the Commissioner's assertion (or disprove i.e. meet a case) that deductions were not made, should have been made, or that payee declarations were not received at a time when the payee declaration was in force. Since the penalty that is sought is a penalty under s 221YHDA (relating to a higher percentage in circumstances where there is no payee declaration), any one of the foregoing would be within the knowledge of Trimcoll and capable of being met on the pleadings as they exist. Trimcoll is told, in the proposed amended statement of claim, all that is necessary to know the case against it.
45 In other words, while the Commissioner may have difficulty proving that the "unnamed third parties" requested Trimcoll to direct any payments, for building and construction work performed, to be made to the "Nominees", the allegation is not difficult to meet and is an allegation of material fact which, together with the other facts alleged, amounts to all of the material facts necessary to make out the cause of action and necessary to enable Trimcoll to defend the cause of action.
46 That is not to gainsay that there may be, validly, a request for further and better particulars. But the allegation in the statement of claim is not, necessarily, that the payment to the "Nominees" on behalf of the unnamed third parties is a sham. All that is necessary to be proved is a direct contract (other than a contract of employment) between Trimcoll and the unnamed third parties, payment to the nominees on their behalf and the failure to deduct that which is required under s 221YHDA, because there was not, in force and presented to Trimcoll, a relevant and effective payee declaration.
47 The clear purpose of the legislative scheme is to deal with "cash-in-hand" payments in the building and construction industry. Reference has been made to the nominees being "bodgie subcontractors", a malapropism that refers to subcontractors who, themselves, do not undertake building and construction work, but are used as a conduit for the payment of persons that do: a practice that facilitates the avoidance of any regulatory scheme, if the parties are so inclined.
48 There is no doubt that the Commissioner has evidentiary difficulties. The Commissioner must prove that each of the persons who carried out the work was not an employee of Trimcoll or of any of the "Nominees" referred to in the proposed amended statement of claim. Further, it must prove that there is, or was, a request by these third parties to Trimcoll to direct any payments for work to the said Nominees.
49 Let us assume that Trimcoll has some employees. Let us also assume that Trimcoll has a number of requests (or evidence of a number of requests) from persons to direct payment for work they perform to the Nominees. In either case, which, relevantly, are the only matter that would depend upon the identity of the unnamed third parties, Trimcoll would be able to prove that the payments to any one of the Nominees was for its employees, if that be the case, and/or that the payments to any one of the Nominees were for, or on behalf of, persons who had provided a payee declaration.
50 In other words, Trimcoll is more than capable of defending the matter on any basis that Trimcoll chooses and has been given sufficient material facts to enable any such defence to be agitated. Trimcoll is capable of denying payments to the Nominees. It is capable of denying that third persons requested payments for building and construction work to the Nominees. These are matters peculiarly within its knowledge. Trimcoll is capable of denying that the Nominees are not engaged in the building and construction industry, and it is capable of denying that the work performed, for which payments were made to the Nominees, was work within the description of regulation 126. Further, if Trimcoll is in receipt of payee declaration forms (and even if it were not), it is capable of denying that any payments were made to the Nominees on behalf of persons in circumstances that s 221YHDA applied. Trimcoll is certainly able to argue that the Nominees were, for the purposes of the Act, payees.
51 None of the foregoing suggests that Trimcoll is not entitled to seek and obtain further and better particulars. That is not a matter before the Court. It is sufficient, for my purposes, to remark that such particulars would not be material facts necessary to allege the entirety of the cause of action against Trimcoll and to enable Trimcoll to know the case that it must meet.
52 Having said that, the allegations are broad and it is to be remembered that it is for the Commissioner to prove that there is a direction by these unnamed third parties to Trimcoll, for payment of moneys, due to it or them, to these Nominees. It may, as already stated, present some significant evidentiary problems for the Commissioner. There may be other significant evidentiary problems for the Commissioner. But none of those evidentiary problems amount to a failure by the Commissioner to plead all material facts necessary for the cause of action to succeed. It is unnecessary, and impermissible, to plead evidence.
53 If all of the matters alleged in the proposed amended statement of claim were admitted, the cause of action would have been made out and there would be judgment for the Commissioner. As a "rule of thumb", that will generally suffice to show that all of the material facts have been pleaded: Ritz Hotel Ltd v Charles of the Ritz Ltd (No 20) (1988) 14 NSWLR 124 at 126.
Conclusions
54 For the above reasons, the Court is of the view that the proposed amended statement of claim alleges all of the material facts necessary to disclose the cause of action. Whether there should or should not be further and better particulars is a matter for the parties and/or the Court on further application.
55 Further, while the chronology of these proceedings discloses a significant effluxion of time from its commencement to the application to file this proposed amended statement of claim, which time is a matter of some concern in the balance of justice between the Commissioner, on the one hand, and Trimcoll, on the other, given the early notification to Trimcoll of the issues in dispute (however unclearly and confusingly), the balance of justice as between the parties is to allow the proposed amended statement of claim. While the chronology of the proceedings discloses that they were commenced on 21 July 2003, the lapse of time has not been a delay brought about by the "fault" of the Commissioner.
56 Further, the absence of a limitation period and the capacity of the Deputy Commissioner to discontinue and file fresh proceedings is an added reason why the lapse of time should not be conclusive in this matter.
57 For the foregoing reasons, the Court makes the following orders: