Higgins v Jackson

High Court of Australia|1976-07-01|Before: Murphy JJ, Dixon J, Stephen J, Mason J, Jacobs J

High Court of Australia Barwick C.J. Stephen, Mason, Jacobs and Murphy JJ. Higgins v Jackson [1976] HCA 37

ORDER Appeal dismissed with costs. Barwick C.J.

In my opinion, this appeal should be dismissed. The only point of law now suggested to arise on the case stated is that, upon the true construction of s. 6(3A) of the Workers' Compensation Act, 1926 as amended NSW, in order that a contractor should not be deemed to be a worker he must not only carry on an independent business, otherwise satisfying the requirements of the words in parenthesis in the sub-section, but he must hold himself out to the public as so carrying on such a business. The argument went so far as to submit that, to come within the exception, the contractor must advertise his business in some public fashion.

In support of the submission, reliance was placed upon what Dixon J. said in Humberstone v Northern Timber Mills [1] . His Honour's view of a section comparable to s. 6(3A) has been followed in this Court in Zuijs v Wirth Bros. Pty Ltd [2] . But, in my opinion, nothing said by Sir Owen Dixon supports the submission. It is sufficient, in my opinion, that the contractor does in fact carry on an independent business under his own or a firm name. No doubt a person who does so may become known as doing so. The sub-section requires the business to be carried on with regularity. Thus a contractor who regularly contracts can scarcely be said not to hold himself out as carrying on the business in the course of which he makes the contracts. But, in my opinion, there is no separate element required by the sub-section of holding out. It is sufficient, as I have said, that the contractor regularly carries on business in his own or a firm name.

(1949) 79 C.L.R. 389, at p. 402. 2. (1955) 93 C.L.R. 561.

In my opinion, the primary judge did not misdirect himself in respect of the meaning of the sub-section. Consequently, the second question asked in the stated case should be answered in the negative.

It is conceded that the Supreme Court's answer to the first question was not in error.

A submission was sought to be made that there was no sufficient evidence that the appellant carried on business with regularity. There is not only no substance, in my opinion, in that submission but it is not an appropriate submission. This was a stated case. The case asked two questions. Neither of those questions was whether there was evidence to support any of the findings of fact set out in the stated case. And if the questions are answered correctly, as in my opinion they were by the Supreme Court, that is the end of the stated case. There is no room for the consideration of any other question.

I entirely agree with all that the Chief Justice has said. There is no need for me to say more.

I agree that the appeal should be dismissed. I do not wish to add to what has fallen from the Chief Justice.

In my opinion there was no evidence going beyond that which possibly established that the appellant carried on the trade or business of a handyman or odd-jobs man regularly. There was no evidence that he carried on a trade or business in his own name as those words are used in s. 6(3A). I stress the words "in his own name". If a regular carrying on of a trade or business were alone sufficient, the additional words "in his own name or under a business or firm name" become surplusage. In Humberstone v Northern Timber Mills [3] Dixon J., in words which have often been applied, said:

I think that the purpose of the exception or exclusion expressed by the words in question was to confine the benefit of the conclusive presumption which it establishes to persons who do not conduct an independent trade or business, who are not holding themselves out to the public under their own or a firm or business name as carrying on such a trade or business and who do not in the course of that trade or business, as an incident of its exercise, undertake the work by entering into the contract. Then he said [4] : The suggestion which this language conveys of the existence of a business or the practice of a trade is much strengthened in sub-s. (6) by the words "carried on," "regularly" and "in his own name or under a firm or business name." These all indicate a business or trade conceived as independently existing or exercised by a person holding himself out to the public under a name or style. It seems to me that in these passages Dixon J. was using the words "holding out" to describe the factual situation of a business or trade independently recognizable as such, the recognition coming from what he described as the holding out. 1. (1949) 79 C.L.R. 389, at p. 401. 2. (1949) 79 C.L.R., at p. 402.

The legislature did not intend to bring within the word "worker" a man carrying on a recognizable independent business but it wanted to close the gap which would be left in the law if the man providing services in his trade, as distinct from entering into a contract of service, was by the manner in which he thus provided his talents left outside the protection of the legislation. The discrimen selected is one which was difficult of expression but which was successfully expressed by the reference, not only to carrying on trade or business, but also to carrying on that trade or business under a style, either the man's own name or a firm name.

The concept thus introduced is one which is distinct from a mere personal carrying on of a trade or business. The man who does work by a contract of services carries on a trade or business but without more he does not, in my view, carry on a business under his own name. He will do so if, for instance, he has a regular place of business, recognizable as such, or if there are other manifestations. All these manifestations can probably be comprehended under the words "holding out" but there must be something of this kind before the conclusion can be reached that a man is carrying on business under his own name. A mere doing of odd jobs at hourly or daily rates, even where the contract is one for services and not for service, is not, in my view, a carrying on of a trade or business in the man's own name. I would therefore allow the appeal and I would set aside the answers to the questions in the stated case which were given in the Court of Appeal and answer question 2, yes. I would remit the matter to the Workers' Compensation Commission.

In my opinion, the Court of Appeal was right. I agree with what the Chief Justice has said. I would dismiss the appeal.

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