Section 52(1) of the Act
13 Section 52(1) of the Act confers a right of appeal. But it is a confined right. It is a right of appeal "on a question of law raised during [the] proceedings" which culminated in the impugned judgment or decision.
14 The language of s 52(1) varies from, and is arguably more restrictive than, the language of ss 92 and 109 of the Magistrates Court Act 1989, and of s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 - each of which confers a right of appeal "on a question of law", as the case may be, from a final order, or an order of the first instance entity.[2]
15 On the other hand, in Green v Victorian Workcover Authority[3] Tadgell JA said that s 52(1) should receive "much the same interpretation" as had been accorded s 52(1) of the Administrative Appeal Tribunal Act 1984 (Vic) in Transport Accident Commission v Hoffman & Ors[4]. In Hoffman, the statute permitted an appeal "on a question of law, from a decision of the Tribunal". Young CJ and McGarvie J construed the provision as granting a right of appeal from a decision "on a question of law which is involved in the Tribunal's decision."[5] A question whether there was any evidence upon which the Tribunal could have reached its decision was, their Honours said, such a question.
16 If, in the present case, the learned judge erred in one or both of the ways asserted in propositions 2 and 3, I do not doubt s 52(1) could properly be called into play. What would be involved would be the application of impermissible reasoning in the necessary balancing exercise.
17 Proposition 4 is of somewhat different character, but I think that s 52(1) would be thereby engaged. If it represented the fact, it would suggest that the reasoning process internally miscarried.
18 Proposition 5 has been held to raise a question of law. The more difficult matter is whether it can be made to fit s 52(1). Perhaps it can. The proceedings may be said to relevantly culminate in the impugned judgment or decision. The reasons for judgment precede the making of orders. So it might be argued that a question as to their sufficiency is a question of law which arises during the proceedings. Be that as it may, the issue need not be decided. For in the end, as will be seen, the issue of alleged inadequacy of reasons really disappeared.
19 That leaves the question whether the subject-matter of proposition 1 engages s 52(1). Its substance lies in the contention, which could have been advanced at trial - but was not - that the evidence was incapable of supporting a conclusion that Mr Game was working under a contract of service when he suffered his fatal injuries. That is starkly different to the submission - which was made - that, there being evidence both ways, the necessary balancing exercise should yield a conclusion unfavourable to the claimant.
20 The submission which was made necessarily implied the existence of evidence both ways. Counsel for the respondent conceded before us that the course of evidence would have been no different had the appellants pursued a "no evidence" case - which is not to say that final submissions at trial would not have been markedly different. But focussing only upon the respondent's concession, I doubt it assists a conclusion that the principle expressed in Suttor v Gundowda Pty Ltd[6] should run in the appellants' favour. The key is the language of s 52(1). If that provision is given a Hoffman-like meaning - which may be said to run counter to ordinary principles of statutory interpretation by treating considerably different statutory language as having substantially the same meaning - the probable consequence is that an evidentiary question is to be treated as having been raised during the proceedings when in truth it was not. What the evidence connotes in a particular proceeding is pre-eminently a matter for consideration by the trial judge. Matters of impression can be important, particularly where the arrangement between parties was an informal one.[7] If an appellant can raise a "no evidence" contention on a s 52(1) appeal, although it was not raised at trial, this Court will never know whether, inter alia, the judge at trial would have found some matter of impression to be important. It could not be said that the judge's actual reasoning, set in a context defined by particular submissions, would have been the same had a different context been set. Nor could it be said that, by looking at a transcript, this Court would be in as good a position as the trial judge to pass upon a matter of impression. These considerations, having regard to the particular language of s 52(1), seem to me to stand in favour of that provision being given a more restrictive meaning than the provision considered in Hoffman.
21 So, if it mattered, as at present advised I doubt that the issue sought to be agitated by proposition 1 was, within the language of s 52(1), a question of law raised during the proceedings below. In expressing that conclusion I have not forgotten that the proposition (which accords with the language of grounds 1-3) is not couched in terms of there being no evidence to support the relevant conclusion, but rather in the language that the conclusion was not available on the facts found. So framed, the enquiry focuses on the question stated by Wilson and Dawson JJ in Stevens v Brodribb Sawmilling Company Pty Ltd.[8] Where it is not suggested that there was no evidence to support findings of fact, the question whether those findings are capable of supporting an ultimate conclusion is no different, in substance, to the question whether there was any evidence to support that conclusion.
Proposition 1 (Grounds 1-3)
22 Putting to one side, for the present, the assertions of specific error raised by propositions 2, 3 and 4, I consider that the facts found did enable the learned judge to reach the critical conclusion - which may be shortly described as a conclusion that, at the pertinent time, Mr Game was working under a contract of service and not pursuant to a contract for services. Put another way, there was evidence enabling the judge to reach that conclusion.
23 The argument to the contrary ran this way: For a number of years, Mr Game had conducted a bricklaying business in partnership - at first with his two sons, later with one son and another man, Dean Hardinge. The partnership was registered. It was managed by Mr Game. It made use of a well-equipped home office. It owned equipment. It quoted on jobs, and invoiced for work done. There were partnership books of account. It charged and paid GST. The books showed that distributions were made to the partners. Over the years it had worked for Rankin, and for other builders. The partners worked their own hours, and sometimes worked on different jobs at the same time. Most of the partnership's work was bricklaying, charged per thousand bricks laid. Sometimes it did other work - demolition, patching, bagging and preparing footings. Sometimes, for bricklaying and other work, it charged an hourly rate. All this showed that the partnership conducted an independent contracting business.
24 Then, coming to the South Yarra job, the partnership had been engaged on bricklaying work. That work had temporarily come to an end. Rankin needed footings prepared for the perimeter wall. Its concreter was to have done the job, but he was presently unavailable. Mr Game had volunteered to do the job, on an hourly rate, as a way of keeping occupied. A bargain having been struck - it was not documented - Mr Game, his son and Hardinge had begun to dig the necessary trenches. They worked to plans provided by the builder, but were essentially unsupervised. They used their own hand tools. They made use, when necessary, of equipment provided by Rankin; but only to deal with particular problems.
25 In the event, the argument ran, the agreement under which Mr Game and the other men were preparing the footings was of the same kind as other agreements pursuant to which the partnership had done work for Rankin. The particular work was partnership work, carried out by the partners. So much was confirmed by an invoice presented by the partnership to Rankin after Mr Game's death.[9]
26 It may be accepted, for present purposes, that Mr Game, his son and Hardinge conducted a bricklaying business in partnership as independent contractors as at October 2002. Let it be further assumed, although the learned judge made no pertinent finding, that at a time before the trenching work began the partners had engaged in bricklaying at the South Yarra site as independent contractors.
27 Nonetheless, it is conceptually possible that one man may work for another, at different times and undertaking different tasks, on the one hand under a contract for services, and on the other hand under a contract of service. So much, if it could have been doubted, is confirmed by Barnes v Dawson.[10]
28 Respondent's counsel submitted that Barnes was not very useful. All that the Full Court of the Supreme Court of NSW had decided was that the trial judge had misdirected himself in the course of deciding that the appellant was not a worker at the critical time. But there the court in substance accepted that at different times the appellant could have worked for the respondent pursuant to a contract for services and under a contract of service; a conclusion that in a particular instance he had worked as an individual under a contract of the latter kind not being precluded by the circumstance that, temporally, he was a member of a partnership at those different times.
29 That leads on to consideration whether analysis of the nature of the relationship at the critical time should have proceeded from the starting point that Mr Game had earlier worked on the site pursuant to a contract for services;[11] with a question then being asked, in effect, whether the arrangement by which Mr Game came to be working as a trencher was of a distinctly different character to the arrangement which had preceded it? Or perhaps with a question whether the parties had revealed an intention - it could not be a subjective intention, for that would be irrelevant - to constitute a different kind of relationship to that which had hitherto existed.
30 Such an approach was taken by the primary judge in Barnes. It was critised by counsel for the appellant on the appeal in that case. The Full Court observed - but did not finally have to decide the point - that, standing alone, it might be that the misdirection was insufficient to attract its jurisdiction under the limited right of appeal which there applied.[12]
31 Here the situation is the obverse. The appellants contend, in effect, that the judge below should have approached the matter in such a way. I do not agree. Barnes suggests that the judge would have misdirected himself had he done so. Further, the adoption of such an approach would imply the applicability of something like a presumption of continuity; and would distract attention away from a steady focus on the circumstances of the particular engagement in favour of a search for similarities with, or differences from, the circumstances of the earlier engagement - a search which would likely be unhelpful because many pertinent circumstances are neutral - that is, compatible with a relationship of one or the other kind; or else do not deny that the relationship was of one kind rather than the other.
32 Focussing upon the engagement under which Mr Game was engaged in trenching work when he suffered his fatal injuries, but not ignoring the other work which he and the other men had performed on this site and elsewhere, the learned judge made findings of fact which included the following: