Henley Arch Pty Ltd v Kovacic [2009] HCATrans 302 (11 November 2009)

Last Updated: 11 November 2009

[2009] HCATrans 302

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M86 of 2009

B e t w e e n -

HENLEY ARCH PTY LTD

Appellant

and

PERO KOVACIC

Respondent

GUMMOW ACJ
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 NOVEMBER 2009, AT 12.06 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR J.P. GORTON, for the appellant. (instructed by Wisewould Mahony Lawyers)

MR R.P. GORTON, QC: If the Court pleases, I appear with MR N.Y. RATTRAY for the respondent. (instructed by Zaparas Lawyers)

GUMMOW ACJ: We note that in your submissions, Mr Gorton, you indicate that special leave should be withdrawn – this is paragraph 30. I want to ask first Mr Walker some questions about this. Mr Walker, it now seems from the appellant’s reply in paragraph 4 that the construction of section 8 of the Accident Compensation Act 1985 is not immediately at the forefront of debate.

MR WALKER: It is certainly the case that there is no contest, it appears, as to what is required. There is a contest as to whether what was available answered that description. Now, that means, as it were, as a practical matter what the section calls for is hotly in contest. There does not appear, however, to be by way of verbal paraphrase any difference offered as between the parties. I accept that.

GUMMOW ACJ: Secondly, there is an outstanding question, on one view of it, as to whether this accident did or did not happen.

MR WALKER: That, in fact, is the only matter that is the subject of the order for remitter to trial.

GUMMOW ACJ: That is right.

MR WALKER: That is, we submit, a major deficiency in what should have occurred as a matter of law, given the proven facts, because there should be far more than simply whether the accident happened remitted for trial to determine the outstanding issues between the parties. When I say “far more” I do not mean many more issues, I mean a much more important anterior question: could this man be regarded as a deemed worker?

GUMMOW ACJ: The third matter that is on our mind is revealed at page 344 of the book, the last couple of lines, as to the nature of the defendant’s case – namely, the primary judge says:

The defendant’s case . . . is, firstly, that no such accident or injury happened in the way in which the plaintiff has claimed and, secondly, if it did, the work he was performing at the time was, in fact, incidental to his trade as a bricklayer and, hence, he is not covered by the provisions of s.8 of the Act.

It does not seem to be the case that the work was not performed pursuant to contractual obligation.

MR WALKER: Can I answer that question, which is at the heart of the matter, including the question of revocation of special leave which your Honours have raised in this fashion. We have been concerned as to whether there is and, if so, whether there is substance in a Suttor v Gundowda objection. It could as well be framed under Coulton v Holcombe. The matter fell out thus, we think, from the record - - -

GUMMOW ACJ: Well, before you go any further, Mr Walker, they are the matters on the Court’s mind. If you wish time to consider them, tell us and we will come back?

MR WALKER: No, we have given them full consideration. I am happy to respond immediately. We too had regarded as of significance what the Acting Chief Justice has noted in our learned friend’s written submission concerning a possible response by the Bench. What we think fell out from the record - shown by the record is that the statement that has been drawn to attention in the trial reasons at appeal book 344, line 45 to 345, line 15 is an accurate and, subject only to the qualifications, if they truly be so that I am about to express, a complete description of the issues that continue or might continue in this Court.

I put it that way because there were other issues concerning significance of injury which have fallen away completely and issues concerning section 9 of the Act, which equally have fallen away completely. But concentrating on what I will call, for convenience if you will permit it, the section 8 issue the way in which the trial judge puts the matter in that passage does seem to be complete and accurate, unless it needs to be qualified by the following matters.

May I first take you to the transcribed discussion of 26 October 2007, an occasion when the plaintiff sought an adjournment. It starts at page 98 of the appeal book. That adjournment was sought because those advising and representing the plaintiff - - -

GUMMOW ACJ: Before you go any further, Mr Walker, I should have added that if one goes to page 403 and looks at the ground of appeal in the notice of appeal it is limited to this. The Court of Appeal erred in holding that Mr Gorton’s client:

was deemed under sec 8 of the Act to be working under a contract . . . without the Court of Appeal finding any provision of any contract with the appellant to perform the work - - -

MR WALKER: That is right. That is the only ground - - -

HEYDON J: Should one not add to that paragraph 1 of the notice of contention, which does not really flag the matter raised in your written submissions?

MR WALKER: I am sorry. Your Honour Justice Heydon is referring to the notice of contention in the Court of Appeal.

HEYDON J: At page 367.

MR WALKER: With great respect – I will just go back. The Acting Chief Justice has drawn attention to the notice of appeal in this Court. Justice Heydon has drawn to attention what I will call the very general terms – we of course wish to characterise the most comprehensive – that Justice Heydon raises. We accept the important issue as to whether it was sufficient to raise a point of a kind that is now in the notice of appeal in this Court. Can I attempt to deal with those matters. I accept that those are important pleading documents as milestones. May I attempt to deal with it as follows?

At page 98, there is recorded the ground for an adjournment being sought on behalf of the plaintiff. The then recent realisation that the defendant’s position was, as described in transcript lines 4 to 6:

What’s being required is that the plaintiff is to prove apparently everything and anything as is required by ss 8 and 9 of the Accident Compensation Act.

Again, I interpolate, that is presumably designedly but certainly, in effect, completely general and comprehensive, we would say. At page 99, at lines 16 to 18 of the transcripts, the same point is made in support of the application for an adjournment. Mr Ruskin, appearing for my client, commences his comments in relation to the adjournment application at page 100, and at page 101, starting at line 11, points out the general answering proposition:

we said you are not a worker within the meaning of the Act.

and that certainly put them on notice, that is, the plaintiff’s advisors, on notice about section 8, et cetera. Your Honours appreciate this is an application by, as it were, a motion and supporting affidavit. It is not a pleading, though it has a draft pleading. Page 104, the trial judge at the foot of that page and on to the top of the next page, in colloquy with counsel for the plaintiff and still on the adjournment application, speaks in general terms about the law as to section 8 and that is understood in lines 10 to 13 by counsel for the plaintiff as every issue under, inter alia, section 8.

That is confirmed by question and answer between the judge and Mr Ruskin in the succeeding lines and emphasised, if it were necessary, in lines 26 and 27 on that page. Now, I did say that I accepted the accuracy and completeness of what is recorded by the trial judge, subject, if there be any available, to qualifications from that course of events. There is nothing further that puts the High Court notice of appeal ground in terms or separately or independently or highlighted at first instance.

It is to be borne in mind that there is this quirk in the way issues and characterisation of the work in question fell out and have led to the present state of affairs of judicial adjudication between these parties. The plaintiff wished to be characterised as a worker, section 5, and under section 5 there were a number of different routes by which he could be a worker. One of them, one of the three attempted, was the deeming under section 8, that is paragraph 8(1)(a). That would have a number of different effects. They tell in different directions.

If he were such a worker he would need the leave for which he was applying to the County Court in order to sue at common law in negligence. If he did so, he could retain payments that had been made, simply giving credit for them in the event of any success at common law. If he were not a worker, deemed or otherwise under the Act, then he could sue, subject to the other applicable hurdles to be jumped at common law, hurdles such as significant injury which would be passed, hurdles such as time bars which can be extended.

Another difference is that there are, I suppose one could say, more onerous or more detailed requirements for the common law action being conducted by someone who is a worker under the Act than if they are not a worker under the Act. In any event, it was considered in the interests of this plaintiff that he characterised himself as a worker and that would have the effect that he needed this leave to sue at common law. His principal case was that he was simply a servant of a master, that is, an employment relation, a contract of service. He failed in that case, though that, of course, was the principal battleground in terms of a crude measurement such as transcript and argument.

CRENNAN J: Did you argue it was a contract for services in that context?

MR WALKER: Your Honour, we argued that the bricklaying was a contract for services without any question at all. The question then arose because there was no document recording the contract for services as it was held. There was no conversation deposed to or sworn to by the plaintiff which referred to what his counsel called in re-examination, or supposed re-examination, lintel lifting work. The question then was whether that bore the necessary relation to the contractual arrangements between the parties, that is, once the question of contract of service was lost, the plaintiff’s primary case.

The contract for services case could deem the plaintiff to be a worker only if under it the plaintiff agreed to perform work of a particular character, statutory character, and it had to be work not incidental to a trade or business regularly carried on by him, et cetera. Now, at first instance the not incidental criterion was the focus of contest and we think it accurate to say it was the only focus of contest thrown up by the course of evidence both written in-chief plus orally in-chief by supplement and in cross-examination and re-examination. There were no exhibits that really went to this matter unless one counts the statements which stood as evidence in-chief of the witnesses called for the company.

At page 159, tagged as re-examination but it emerges it is reopening in-chief by leave, the plaintiff who had given in December a long and elaborate affidavit following the opportunity to consider matters under section 8 as a result of the adjournment application in October, was asked questions which had not been touched on in cross-examination, that is why it was not re-examination. One sees, at line 15 on page 159 – this is the plaintiff’s counsel:

This lintel that you were lifting with the others at the time when you had the injury back in November 2003, when working for Henley, had you done lintel lifting before?---No.

An answer which perhaps sits oddly with the stance that the respondent in this appeal presently takes. But anyhow, there it is, no.

That lintel lifting work –

We draw to attention the way in which it is described –

was it part, in your experience, of an ordinary bricklayer’s work, before you got to Henley?---No.

Then his Honour notes that it is not part of re-examination, it is evidence-in-chief, line 27, not raised in cross-examination, line 29. That was further cross-examined on in the succeeding three pages of the appeal book. These passages have been drawn to your Honours’ attention in the parties’ respective written submissions here. It can be said, I hope - - -

GUMMOW ACJ: All this is to be reagitated, is it not?

MR WALKER: No, not as a matter of fact, no.

GUMMOW ACJ: Really?

MR WALKER: What is to be drawn from this is a matter of fact, that is, the application of the requirements of the statute to this material is to be or is - - -

GUMMOW ACJ: No, if the order of the Court of Appeal stands.

MR WALKER: I am so sorry, your Honour. I misunderstood your question.

GUMMOW ACJ: All this will be back in play.

MR WALKER: No, it will not, because if one goes to the order, the only - - -

GUMMOW ACJ: I am looking at the reasons at page 396, paragraph 61, “whether the appellant sustained injury”.

MR WALKER: “[U]pon the question whether the appellant sustained injury”.

GUMMOW ACJ: “[I]n a lifting incident on or about 25 November 2003”.

MR WALKER: Yes, so that is just about whether he was injured by something he did on that day. It is not on the question as to whether what he was doing was such as to permit him to be a deemed - - -

GUMMOW ACJ: What he was doing when?

MR WALKER: On that day, was such as to permit him to be a deemed worker under section 8. Our position is that that has never been demonstrated. There are not findings at first instance or the Court of Appeal making out a section 8 deemed worker. If there is to be a remitter and, with respect, on the question of credit based findings one understands why that is the proper course, it ought obviously to include the question whether what he was doing fitted section 8 so as to deem him to be a worker.

One sees the order of the Court of Appeal at page 398 of the book in this Court and order 3 limits the remitter to simply the question of whether the appellant sustained injuries to his lower back as if there are findings first made at first instance or perhaps, alternatively, made for the first time in the Court of Appeal that contain all the components necessary to apply section 8 in the plaintiff’s favour as a deemed worker. I say “in the plaintiff’s favour” although it tells both ways being a deemed worker, but for the purposes of the present argument - - -

GUMMOW ACJ: You will want to establish that he did not sustain any injury on that day.

MR WALKER: That is our primary factual answer.

GUMMOW ACJ: That is right.

MR WALKER: You did not lift it and whatever you did on that day did not injure your back, as you say.

GUMMOW ACJ: If you are right about that at the end of the day, we will have been engaged in a frolic.

MR WALKER: Your Honour, there is nothing I can say to alleviate that position. We are not here as a party who will be denied any possibility of success if we were not here. We could still succeed on our basic factual case. We are here, however, as a party that has been denied - - -

GUMMOW ACJ: It would be a different matter if you now threw away that possibility, but you do not obviously.

MR WALKER: No, of course, no.

CRENNAN J: Just for clarity’s sake in relation to what you are saying, in the respondent’s submissions at paragraph 15 it is stated that:

There is no dispute now that the installing of this (and other) large lintels was not incidental to the Respondent’s trade or business of bricklaying - - -

MR WALKER: Yes. Your Honour anticipates the odd – I use the word “quirk”. There are real quirks about the position that we are in now. What I was laboriously trying to expound is this, that in the passage that I had just turned to of Mr Ruskin’s further cross-examination upon that reopened evidence-in-chief – I will not read it because it is very obvious – he was saying, “Look, you could not continue to put up bricks until the lintel was there” and that was with a view to saying, “This was work incidental to your bricklaying work”.

He lost that comprehensively at trial and, it having been run yet again in the Court of Appeal, we lost it again there. We lost it on the basis that this lintel was far too heavy and the arrangements, contrary to the plaintiff’s own version actually, but that does not matter, but you can pick and choose the evidence, the arrangements which the company had in place for the lifting of such lintels, the commissioning of the crane, et cetera, was such as to render this, perhaps by way of contrast with little lintels that could be easily lifted – this is 4.5 metres long – meant that the work was not incidental to the work of a bricklayer being the matter which the parties had assumed, that is another of these matters that need to be proved, but were not delved into at trial, namely whether the plaintiff had been conducting a trade or business, et cetera.

That led to Justice Ashley’s extended treatment in his Honour’s reasons of what he called either the one contract possibility or the separate contract possibility. Can I just explain those references? They are to the possibilities his Honour canvassed of, in the one contract – hence the one contract point – there being work stipulated which is incidental to a bricklayer’s work or his bricklayer’s work and also in the same one contract, work which was not incidental. Could that be so and the judge said yes, that could be so and it could work, his Honour said, because of the snapshot idea that is not in question in this Court, by which because his Honour said this only arose upon the occurrence of injury there would be no problem with people being deemed to be workers in relation to bricklaying work or work incidental to bricklaying, if that was a trade being carried on.

Now, his Honour also points out that the other possibility is that one could have a contract of service, but also a separate contract for services in relation to work not incidental to a trade or business. That was not this case, but it shows that in the Court of Appeal searching for the contract or contractual term under which the plaintiff had agreed to do this lintel lifting work was a live issue, that is understood to be something that had to be satisfied for the man to be a deemed worker. Justice Heydon has drawn attention to the generality of our notice of contention in the Court of Appeal, but it is, as it must be, conceded it was clearly comprehensive enough to cover every component of section 8(1)(a).

I am sorry, your Honour, I was about to say now that does not alleviate the fact that I cannot find in the record anything which puts the point upon which we obtained once special leave to appeal with anything like the clarity that is now put. It is paragraph 28, however, of Justice Ashley’s reasons. That is really the reason why special leave is appropriate to be preserved and the argument to be had because it is paragraph 28 of the reasons which, with great respect, does not really reflect anything that had fallen out by what I might call earnest combat in the Court of Appeal. It is not a procedural fairness complaint, but it raises a fresh complexion on these things, because in paragraph 28, in relation to what the statute calls for by way of a contract, there is this notion of, about line 28 or thereabouts:

the non-incidental work will just present itself, and will be performed. That is likely to raise the ‘one contract’ issue.

The “one contract” issue is a reference back to paragraph 23 on the previous page, and is what I have just tried to explain, that in the one contract you agree:

to perform both work [in the course of or] incidental to a trade and work not so incidental?

So that there could be no doubt that the Court of Appeal proceeded on the basis that yes, there had to be identification of a contract, and there had to be - - -

GUMMOW ACJ: No, his Honour was reflecting his view of experience of ordinary life, I suppose. He says at the beginning of paragraph 28 “a formal contract”.

MR WALKER: It is “likely to be a rare bird”.

GUMMOW ACJ: Yes.

MR WALKER: Then more often, if there is a contract, that means not a formal one, that means one like in this case, if there is a contract and there was a contract for bricklaying, the non-incidental work will just present itself and will be performed. “Formal”, we think, means “documented”. I cannot think of any other meaning in the context of this case, it was not in writing. There was evidence of it in writing, but I think retrospective in terms of invoices. So here we are - - -

GUMMOW ACJ: A formal contract is wholly in writing.

MR WALKER: That sounds correct, subject of course to what I think is not a contradiction, but needs to be added, namely the obvious implications.

GUMMOW ACJ: Yes.

MR WALKER: They were important in this case. They were important in this case because of that which divided the parties concerning incidental and non-incidental and to remind your Honours that for the plaintiff’s success, he had to show it was not incidental, and here we were in Mr Ruskin’s further cross-examination, putting, in effect, it was something that had to be done, part and parcel, did not get any satisfactory answers and failed in the contention. Now, one thing we did not put there was “Look, you agreed to do this in your contract”. For obvious reasons, we did not put that. There can hardly be a complaint by the other side that we did not by a challenge, unsuccessful or otherwise, in cross-examination, fix a deficiency in their evidence-in-chief.

BELL J: The burden of your complaint is that the question of whether or not this plaintiff was on a frolic of his own in engaging in heavy lintel work has not been determined.

MR WALKER: That is right and that is fundamental to whether or not anything else in the case matters.

BELL J: But that is an issue plainly that had it been in play could have been the subject of exploration in evidence.

MR WALKER: And it was. Can I explain? I go back. The plaintiff’s primary case was I was an employee properly, not deemed. In order to make that out, contract of service, pursuant to which he lifted the lintel and hurt himself because that is how by section 82 of the Act the entitlements of various kinds of payments flow, that is how that would have fallen out. In order to make good that contract of employment he had to prove the dealings between him and the company and he did in what the judge praised as well-drafted affidavits.

There are, in particular, the one that followed after the adjournment, after the dire warning from the defendant that they were put to proof as to everything. That is the affidavit that starts at appeal book 21, sworn on 7 December 2007. It goes into a great deal of detail and, as I say, it reflects that the bulk of the case concerned this contested contract of service, the indicia one way or the other of whether this was employment or not. I will stand corrected, but on our examination, including consideration of what has been put by way of submission against us, we can only find on pages 34 and 35 of the appeal book in paragraphs 37 and 39, that is the closest material to the plaintiff’s version of how he came to be lifting this lintel.

Now, it cannot be that the version the plaintiff would put forward as to how he came to be lifting it would vary depending upon the legal advantage or disadvantage perceived or not perceived in relation to how the contract would be characterised. Would it be a contract of service or a contract for services? The dealings remain the same whatever be their legal character. That is why there cannot be seriously a suggestion that there was, as it were, a different version falsifying or contradicting any part of this version as to how it all came about. That presumably is why Justice Ashley, with respect, uses the striking phrase it just presented itself and will be performed and was performed for this job.

That is the only thing that one can get out, at its most favourable to the plaintiff, from 37 and 39. But there was detailed evidence that Justice Ashley appears to have accepted and certainly was not rejected by the trial judge in the course of using against the defendant its own employee’s evidence about the availability and resort to a crane for these very heavy lintels. That was used both at trial and on appeal to hold the work was not incidental. That is one of these quirks. We had striven against that and failed and in this Court, we present as people - - -

GUMMOW ACJ: I think we really need to know, Mr Walker, do you agree or not agree with paragraph 11 of the respondent’s submission, otherwise we are just going around in circles?

MR WALKER: No, we do not agree. I was about to go to the evidence that shows quite expressly that that is not so. Could I take your Honours, please, first of all to appeal book pages 74 and 75. This is Mr Messenger’s evidence and is included in the evidence, obviously accepted, because it is used against us on non-incidental, and it is at about line 27 or so on page 74. He “was not required or pressured” by anyone to lift, et cetera. Page 75, item (d) in the middle of the page, “we would not have required them”. It was an issue, a factual issue, and it was cutting both ways. We were insisting that we would not have required you to do that.

GUMMOW ACJ: This is what was in the material. The question is how it was conducted.

MR WALKER: At trial. This is at trial.

HEYDON J: Yes. The trial judge, as you took us to on pages 344 and 345, said there were two issues.

MR WALKER: Yes.

HEYDON J: You said that was correct subject to basically what happened on the adjournment application which was two months before the trial.

MR WALKER: Unless that imports a qualification, I accept that that is accurate and complete.

HEYDON J: Issues often contract. You said that until something else happened we are here now as a party who has been denied, but what you say is you have been denied the opportunity to get a conclusion on section 8, but if you did not ask for it, you have not been denied anything.

MR WALKER: Your Honour, I accept that it is correct.

HEYDON J: Is that not the heart of it? Now you want this Court to say something which the trial judge ought to have been invited to say or disagree with which the Court of Appeal may have been vaguely invited to say something about in the notice of contention.

MR WALKER: Yes.

HEYDON J: But we too work from fragmentary materials and the materials do not tell us that it was a hot issue in the Court of Appeal and anyway, that was too late.

MR WALKER: We would say it is certainly not too late for reasons I have partly touched on already, that is, in the Court of Appeal identifying the contract and how it was a source of obligation to engage in lintel lifting work was understood, that is what Justice Ashley engaged in, culminating in the erroneous paragraph 28. Otherwise I do not want to - - -

GUMMOW ACJ: You have had 45 minutes, Mr Walker.

MR WALKER: I know. Your Honours, I have been trying to respond to questions which are obviously of considerable threshold importance. I want to make it clear that I do not wish to qualify my acceptance of what Justice Heydon has put. In the sense that his Honour has used it, which is a relevant or the relevant sense, I cannot say there was an argued contention at trial wrongly not attended to. There is no procedural fairness complainant imaginable. Nor can I say, notwithstanding the terms of the notice of contention ground 1, nor can I say that we have a complainant that an argument that I can trace in written submission or transcript that would have been crucial for our success or failure has, contrary to what should have happened, not been attended to.

It would be idle for me to do it, and I do not suggest your Honours should think you have fragmentary materials. You have, with respect, materials which enable you to draw secure inferences from absences. I want to make that quite clear, and I am not going to obscure that at all. Our point simply is, what has now happened, bearing in mind that the parties have neatly reversed their original positions – “I was an employee – no, on my alternative case, I am a deemed employee”. It was not a contract of service. It was a contract of services.

Now they say that there was a contractual obligation because in effect the work was incidental to bricklaying. In other words, they are now embracing the theses which underlay the cross-examination to which I have

drawn attention which they were resisting, and which they successfully resisted with a finding that still exists, though namely not incidental. In our submission, this Court should ensure that paragraph 28 does not survive, namely, that something needs to be done which is not at its highest a mere quantum meruit.

There has to be – and there would not have been a quantum meruit in this case for a number of reasons, including the evidence of Mr Messenger to which I drew attention – there has to be a contract under which the work has been agreed to be performed. That not appearing in any of the findings at first instance or in the Court of Appeal, that being the first threshold prerequisite of paragraph 8(1)(a), then any retrial of the issues between these parties should permit that matter which is in accordance with the law of the matter to be determined on the facts. At the moment the order for remitter denies us the capacity to say, “But you have not proved that there was a contract under which you agreed to perform the lintel lifting work, being work not incidental”.

HEYDON J: Well, this is a new order you are seeking. Your primary position is that this appeal should be allowed and the respondent’s appeal to the Court of Appeal be dismissed, but you say in the alternative the remitter should be on all issues that are at least wider issues than they presently are.

MR WALKER: Yes, that is right. It is a mirror, as it were, of the alternative or fallback expressed by the respondent, namely, in the event of success of the appeal there should be a remitter to permit this to be canvassed.

HEYDON J: If your side did not raise it at the trial what is unjust about that being the end of the story?

MR WALKER: I am not going to waste your Honours’ time by suggesting that the way in which parties compose, constitute and fight their issues does not provide a useful yardstick, it is whether there has been an unjust deprivation. There has not been an unjust deprivation. I cannot put it that way. There has been an error, there is an error, in the way in which for the first time it emerged in paragraph 28, not as an illegitimate surprise but simply it is the first time in the record it emerges that way. In our submission, that is an error, it should not stand, and those are the reasons why in our submission there is a discrete, important issue of the application of an important provision to circumstances which must in their nature not be rare, and for those reasons in our submission there should not be a revocation of special leave. May it please the Court.

GUMMOW ACJ: Yes, thank you, Mr Walker. The Court will adjourn until 2.00 pm.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

GUMMOW ACJ: We do not need to call on you, Mr Gorton.

What follows are the reasons of the Court.

The Court of Appeal of the Supreme Court of Victoria allowed an appeal against the dismissal of the respondent’s application under the Accident Compensation Act 1985 (Vic) (“the Act”). The Court of Appeal remitted for rehearing by the County Court the essential factual question whether the appellant had sustained the injury to his back, of which he complained, in a lifting accident on or about 25 November 2003.

The sole ground of appeal to the Court is that the Court of Appeal erred in holding that the respondent was deemed by the operation of section 8 of the Act to be working under a contract of service with the appellant. It is said that the Court of Appeal so held without finding any provision in the contract with the appellant to perform the work alleged to have caused his injury.

From the written submissions in this Court, there now appears to be no dispute as to the proper construction and application of section 8. Rather, as just mentioned, the appellant contends that the Court of Appeal fell into error because it disregarded the statutory requirement that the work in question be work agreed to be performed under or by a contract, with the result that the Court of Appeal erred in allowing the appeal to that court.

These circumstances, without more, ordinarily would not attract a grant of special leave.

Moreover, at first instance, the primary judge, Judge Morrow, said that the appellant’s case in relation to section 8 was that the injury of which the respondent complained did not happen in the way he claimed and that, even if it did, the work he was performing was incidental to his trade as a bricklayer and hence section 8 of the Act did not apply. No point was taken that the work performed by the respondent was not performed pursuant to a contractual obligation. There was no cross-examination directed to that point. Had the point been raised at first instance, there was a possibility that it could have been defeated by further evidence. Nor, we emphasise, was the point taken in the Court of Appeal.

In these circumstances, the respondent submits that special leave should be revoked. We are of the view that that order should be made. Special leave was granted upon terms that the appellant pay the costs of the proceeding in this Court in any event. Accordingly, there should be an order that the appellant pay those costs.

For these reasons, the order now made by the Court is:

1. The grant of special leave is revoked.
   
2. The appellant pay the costs of the proceedings in this Court.
   

MR GORTON: May it please the Court.

GUMMOW ACJ: The Court will be sitting at 9.30 tomorrow morning to deal with pronouncement of orders and at 10.15 to take the next appeal. We will now adjourn to 9.30.

AT 2.05 PM THE MATTER WAS ADJOURNED