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PULLEINE v BUSCHMAN & ANOR
Supreme Court of the Northern Territory of Australia Kearney J.
16 and 19 June 1987, at Darwin
Appeal repeal of provision for appeal - no transitional provision in amending Act application of s.12(c) of Interpretation Act.
Worker's compensation liability of principal to deemed employee of contractor liability of contractor to indemnif , principal application of ss 6(2), 14(1) and 14(2) Wor}.men's Compensation Act.
Workers' compensation - nature of "contract to	perform	any work" - s.6(2) of Workmen's Compensation Act.

Statutes:
ss 6(2), 14(1), 14(2) & 26 Workmen's Compensation Act (repealed) s.12(c) Interpretation Act

Cases applied:
Tomas v Tomas 47 ACTR 1
Turner v Stewardson (1961) 78 WN (NSW) 1036
Linou v Antonas Constructions Pty Ltd (1984) 35 SASR 399 Babaniaris v Lutony Fashions Pt	Ltd unreported, High Court
of Australia, 5 June 1 87

Cases referred to:
Zuijs v Wirth Brothers Pty Ltd 93 CLR 501 Humberstone v Northern Timber Mills 79 CLR 389

Cases distinguished: Dietrich v Dare 30 ALR 407

Counsel for appellant Solicitor for appellant
Counsel for first respondent Solicitors for first respondent

Counsel for second respondent Solicitors for second respondent

T. Coulehan
P. McQueen
D. Mildren QC Mildren, Silvester & Partners
P. Bracher Ward Keller

kea870119
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
Ko.605 of 1985

IN THE MATTER OF the
Workmen's Compensation Act
Al:,l):

IN THE MATTER of an Appeal from the Workmen's Compensation Tribunal
in Darwin

BETWEEN:
WILLIAM JAMES PULLEINE
Appellant
AND:
DAVID RAY BUSCHMAN
First Respondent
AND:
INGHAMS ENTERPRISES PTY LTD
Second Respondent

CORAM:	Kearney J.

REASONS FOR DECISION
(delivered 19 June 1987)

HISTORY OF PROCEEDINGS

This is an appeal from a decision of the	Workmen's Compensation Tribunal in Darwin.

The	first	respondent, Mr Buschman, was injured on
29 March 1981. On 13 August he applied to the Tribunal for compensation from the second respondent (herein referred to as "Inghams") under s.10 of the \.iorkmen's Compensation Act. Inghams joined in the appellant, Mr Pulleine, as a third party on the basis that if it were liable to compensate Mr Buschman it was entitled to an indemnity from Mr Pulleine. The hearing commenced on 21 June 1984; the taking of evidence concluded on 28 September. Written submissions were lodged by 25 June 1985. The Tribunal gave its decision on 5 September. It held that Inghams was liable to pay compensation to Mr Buschman, and was entitled to be indemnified by Mr Pulleine. Mr  Pulleine lodged an appeal on
11 October. The appeal has been argued on the basis of the evidence placed before the Tribunal, to which I now turn.

THE EVIDENCE BEFORE THE TRIBUNAL

The Tribunal su=arized the evidence in detail, in its reasons for decision. No challenge has been made to the accuracy of the summary, which I accept. In brief, the thrust of the evidence was as follows.

By 1981 Mr Buschman had been a resident of Darwin for about 17 years. His wife, now deceased, was Laotian in origin. In 1978 her Laotian relatives were in a refugee camp in Thailand. By 1980 the Buschmans had managed to

,'

arrange the migration of these relatives en masse to Australia. They were a large group, consisting of some 20 children and 13 adults. When they arrived in Australia they could not speak English. Between May 1980 and July 1981 they lived on Mr Buschman's farm outside Darwin and at his house in Milner. They constituted a considerable financial burden upon him although they grew vegetables and sold some of them at the markets, and although Mr Buschman was paid by the Government for driving the children to and from school. Mr Buschman was accordingly anxious to secure some paid work for the Laotians so that they could contribute to their own support and thereby reduce the burden upon him.

Mr Buschman knew the appellant. From January 1981 Mr Pulleine had a maintenance contract with the enterprise at Darwin of Inghams the wellknown poultry producer. In 1981 Inghams' system of processing chickens into poultry was as follows. The company kept its chickens on free range within large sheds. Over several hours at night, on 3 nights per week, some 4,000 chickens at a time had to be caught in the shed, loaded into cages on a truck, and taken to a place for processing. There they were tallied and processed the same day. The catching and loading of the chickens required the labour of several people. They were called chicken catchers.

,,

catchers.

In Harch	1981	Inghams	had	a	need	for	chicken In	the	past		this work had been carried out by

about 3 people as required, on a casual basis.	Mr Buschman
thought that the chickens would be better handled and less bruised if more hands did the catching. He had the Laotians in  mind.  He  discussed   the  matter  with  Mr Pulleine. Mrs Buschman discussed the matter with the Laotians; they agreed at  a family conference to work as chicken catchers. Mr Pulleine entered into an oral contract with Inghams for the catching and delivery of the chickens; accordingly, he required a sufficient number of persons to catch about 3-4,000 chickens on 3 nights per week. Under his contract with Inghams, Mr Pulleine was to receive 6c for  every chicken delivered to the processing plant. From the money which he received Mr Pulleine, pursuant to oral arrangements he had entered into with Mr Buschman that the Laotians would do the actual catching, paid Mr Buschman the sum of 4c per chicken caught and loaded. Mr Pulleine would see that the transport was kept in working order, and supply  a  driver. It was no part of Mr Pulleine's concern as to the particular persons who took part in the catching of chickens on each occasion.

The first catching of chickens by Mr Buschman's group started at midnight on Sunday 29 March 1981; it continued on until about 5 or 6.00am. Mr and Mrs Buschl:Jan were present, with some of the Laotians. Mr Pulleine

e,;plained to them what had to be done and the manner of doing it. The Tribunal accepted that Mr Buschman himself made 2 forays into the shed, physically catching chickens; later he stayed on the back of the truck, operating the cages. While he was doing so a cage became stuck, he heaved at it, lost his balance, and fell to the ground, suffering the injuries which gave rise to these proceedings; the Tribunal accepted this account of how the injuries occurred. He was taken to hospital and admitted. The work of chicken catching continued that night and on other nights while he was  hospitalized,  under  the  general   direction   of Mrs Buschman. The catchers caught about 4,000 chickens on

each	occasion.	When	Mr Buschman	was hospital some 3-4 weeks later,	he	drove

discharged	from the	Laotians	to

Inghams' shed at night to do the chicken catching. He could no longer physically catch chickens himself - he seems in any event to have been old to do that - but he could do other parts of the operation.

The money paid by Mr Pulleine for the chicken catching went to Mrs Buschman and was used to buy groceries and supplies  for  the  whole  group.  According  to  Jimmy Buschman, Mrs Buschman's brother, the proceeds were shared amongst the  extended  family  by  Mrs Buschman.  Mr Buschman left the financial arrangements with the Laotians to Mrs Buschman; he made no profit himself out of the chicken catching.

Mr Buschman in his evidence said that he understood in his dealings with Kr Pulleine that Mr Pulleine was representing Inghams, and had engaged both himself and the Laotians as employees of lnghams for the purpose of catching chickens. That version was not credible in light of other evidence as to the arrangements, given by Mr Ensch and in particular by Mr Rodriquez, respectively the office manager and processing manager of lnghams. The Tribunal did not accept Mr Buschman's evidence on this point; nor would I.

THE TRIBUNAL'S DETERMINATION

The Tribunal found for Mr Buschman. It considered that 4 issues required determination; to these I now turn. Most of the findings on the issues were not contested. For the purposes of the appeal, it is the first issue which is the most important.

The	application of s.6(2)of the Act to the relationship between Mr Buschman and Mr Pulleine

The Tribunal first considered whether Mr Buschman fell within s.6(2) of the Workmen's Compensation Act, which provides:-

"Where a contract to perfo_E!g any work exceeding $100 in value (not being work incidental to a trade or business regu­ larly carried on by the contractor in his own name) is made with the contractor, who neither sublets the contract, nor employs workmen, the contractor shall,

for the purposes of this Act, be deemed to be a workman employed by the per8on who made such contract with the con­ tractor." (underlining mine).

On the basis of the evidence summarized above the Tribunal made findings relating seriatim to the 4 elements of s.6(2) underlined above.

The first finding was -

"...that Mr. Buschman entered into a con­ tract to perform work with Mr. Pulleine. The contract with Mr. Pulleine was that Yn:. Busch.man would catch chickens and both parties were aware that Mr. Buschman would be assisted by members of his Laotian family. I accept Mr. Buschmans evidence that on the night of the accident he personally caught chickens, that he made two trips to catch chickens and then because there was a problem with the cages he stayed on the top of the truck to organise the cages. I also accept his evidence that despite his age and the obvious difficulties in catching chickens Mr. Busch.man had every intention of participating in this work. In addition to this he was responsible for the overall production in that he drove the team [that is, the Laotians] to and from the job, maintained records and ensured there were enough people to do the work and that they were instructed in what to do.

I find on the evidence that the chicken catchers worked at night and on the time and dates specified by Mr. Pulleine who also directed how the chickens were to be caught from which sheds and how transported."

This finding was attacked on appeal in relation to the "contract to perform work"; see p.14 et seq.

Second	was	the finding that the value of the work performed exceeded $100; this was not in dispute.

The third finding was that -

Mr. Buschman did not work elsewhere as a chicken catcher and that his normal business regularly carried on by him was to drive a bus under contract to the Government and as a farmer."

This finding relates to the requirement in s.6(2) that the work in question must not be "work incidental to a trade or business regularly carried on by the contractor in his own name". This finding was not contested on appeal.

Fourth was the finding that -

Mr. Buschman was working with an extended family, that he was the head of that group with the &ssistance of his wife to translate, and the money earned was shared between them. Mr. Buschman did receive a benefit in that it assisted he and his wife in the burden of supporting their Laotian relatives."

This finding in fact relates to the requirement in s.6(2) that  in  relation  to  the contract with Mr Pulleine,   Mr Buschman had to be a contractor "who neither sublets the

..

contract, nor employs workmen".	The finding was attacked on appeal; see pp.19-20.

It is convenient to note at	this	point	that	the Tribunal also stated, immediately after the last finding:-

"On	the		facts	found nothing	to	support Mr. Buschman		sublet employed workmen."

by		me	there	is any	finding	that the	contract	or

Hr Coulehan contended before me that this statement revealed a misapprehension by the Tribunal as to where the burden of proof lay as regards this aspect of s.6(2), in that it wrongly assumed that Mr Pulleine and Inghams had to prove that Mr Buschman had sublet the contract or employed workmen, whereas it was for Mr Buschman to prove that he had not done these things if he was to draw himself within the net of s.6(2). However, read in context, I am satisfied that the statement does not bear the inference for which the appellant contends. I think it is clear that the Tribunal proceeded on the correct basis, that the burden of proof lay upon Mr Buschman to negative these matters; and that it considered that he had discharged that burden by establishing that far from subletting the contract or employing workmen he had carried out the contract by the shared labours of an extended family of which, for the purposes of the chicken catching operation, he was the head.

On the basis of these findings the Tribunal concluded that for the purpose of the work of chicken catching Mr Buschman was deemed to be a workman employed by Xr Pulleine, pursuant to s.6(2) of the Act. The appellant conceded before this Court that none of the 4 exclusionary
factors in the definition of "workman" in s.6 of the Act applied to Mr Buschman. I note that it is clear that the Tribunal, in making these findings, rejected a submission by

Mr Pulleine	and	Mr Buschman	that	Mr Buschman	had
employed by Inghams as a chicken catcher.

been

Liability of Mr Pulleine for Mr Buschman's injury

The Tribunal held that Mr Buschman had suffered injury by accident arising out of or in the course of his (deemed) employment by Mr Pulleine. This finding meant that Mr Pulleine was liable to pay compensation for that injury, in terms of s.7(1) of the Act. Mr Pulleine does not directly contest this finding on the appeal, but contests the finding on issue (a) that Mr Buschman was deemed to be his workman, upon which this finding rests.

The a	lication of s.14(1)     Inghams		as	pri n c i p a:..::..._...:t o:c. , M r=-==B u s c a n:.. 
employee of the contractor Mr Pulleine

Section 14(1) of the Act provides:-

a s=---a=-	,_=====­

"Where	any referred		to

person	(in	this	section as 'the principal'), in the

course of or for the purpose of his trade or	business,	contracts with any other
 erson (in this section			referred		to		as the contractor') for the execution by or under the contractor of the whole or		any part		of	any		work		undertaken		by		the principal, the principal shall be		liable to	pay	to	any	workman employed in the execution of the	work		any	compensation under	this	Act which he would have been liable to pay if that		workman		had	been immediately		employed		by	him; and where compensation			is		claimed		from			or proceedings			are		taken against the principal, then, in the application of this Act references to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately    employed."  (underlining
mine).

The Tribunal made findings related to the 2 elements of s.14(1) underlined above.

The first finding was that the catching of the chickens was part of Inghams' business of processing chickens;  in terms of s.14(1),  chicken   catching was an
activity "in	the course of or for the purpose of	[lnghams' J
trade or business".	That is not in dispute.

The second finding was that lnghams contracted with Mr Pulleine for the catching of its chickens. In terms of s.14(1), in  so  doing,  Inghams  was  contracting  with Mr Pulleine "for the execution by or under the contractor [that is, Mr Pulleine] of ... part of ... work undertaken by

the principal [that is, Inghams)". The Tribunal set out the evidence which led it to that conclusion. The appellant does not contest this finding, on the appeal.

The Tribunal accordingly held, applying s.14(1) of the Act, that it was -

" satisfied on the balance of probabilities that Inghams Enterprises Pty Ltd is liable to pay compensation to Er Buschman."

The appellant conceded before this Court that a "workman" in s.14(1) included a person "deemed to be a workman" by s.6(2). While no direct attack is made on the findings on this issue those findings (as with those on issue (b)) rest upon the findings on issue (a) which are attacked.

The	application of s.14(1) of the Act: the liability of Mr Pulleine to indenmiry' Inghams

Section 14(2) of the Act provides:-

"Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by any person who would have been liable to pay compensation to the workman independently of this section."

The Tribunal held that the application of s.14(2) to the finding on issue (c) above, meant that Inghams was entitled to be indemnified by Mr Pulleine for the compensation which Inghams was now liable under s.14(1) to pay to Mr Buschman. I consider that it is clearly correct that lnghams was entitled to be indemnified by Mr Pulleine in respect of any liability to Mr Buschman; the existence of any such liability is attacked indirectly, as indicated on p.12, by the attack on the findings on issue (a).

THE APPEAL

Preliminary

One preliminary matter may be mentioned at the outset. The Tribunal gave its decision on 5 September 1985. The   appeal  was  lodged  on  11 October.   Meanwhile, on
11 September, the Workmen's Compensation Amendment Act 1984 came into force. Inter alia, that Act abolished the Tribunal, set up a Workers'  Compensation  Court, repealed
s.26 of the Workmen's Compensation Act  which  had provided for appeals from the Tribunal, and substituted a new s.26 which provided for appeals from the new Compensation Court. There was no transitional provision preserving a right of appeal from a decision of the Tribunal.

I consider that s.12(c) of the Interpretation Act applies in these circumstances so as to preserve the appellant's right to appeal against the Tribunal's decision of 5 September 1985 in accordance with the provisions of the now-repealed s.26.

The grounds of appeal: general

The appellant ultimately relied	on	2	grounds	of appeal viz:-

That the finding (at p.7) that Mr Buschman had contracted with Mr Pulleine to perform work within the meaning of s.6(2) was erroneous; and

That	the

Tribunal

should	have

found	that

Mr Buschman

sublet	the

contract

or	employed

workmen; see pp.8-9.

I now deal with these grounds. It will be noted that they both attack the finding that Mr Buschman fell within the net of s.6(2); see findings on issue (a) at pp.6-10.

The first ground of appeal:	did Mr Buschman contract to perform work?

Mr Coulehan contended that while Nr Pulleine had a contract with Inghams to catch and deliver chickens and had subcontracted the chicken catching aspect of this work to Mr Buschman, that subcontract  was not to perform work  but to produce a certain result, namely the catching and
loading of the chickens. The submission ultil!lately was that since the contract was not a "contract to perform ... work", s.6(2) did not apply to Mr Buschman.

I accept that Mr Buschman was not obliged by the contract personally to carry out the catching and loading of the chickens. I also accept, broadly, that Mr Buschman's whole object in entering into the subcontract was to obtain some income for his Laotian relatives, thereby easing the burden they imposed upon him; and that in general his arrangement with Mr Pulleine was that he would provide the labour of the Laotians to catch and load the chickens, transport the Laotians to and from the shed for that purpose, and supervise the chicken catching and loading.

Mr Coulehan relied on 3 cases. Dietrich v Dare 30 ALR 407 related to an arrangement in which the injured applicant was to carry out certain painting for a trial

period, to determine whether he was capable of doing a certain job. The question was whether a contract of service existed. The High Court held that the applicant was not a "workman" within the meaning of s.6(1) of the Act; on the facts he was not an independent contractor and no contract of service was in existence. It was clear that s.6(2) had no application; there was no contract of any type to perform work. I do not see how Dietrich v Dare (supra) is relevant to the present issue.

In Tomas v Tomas 47 ACTR 1 bricklayer A entered into a contract as an independent contractor to lay bricks. That in fact was his usual course of business. He and another bricklayer B worked as a team, and shared the proceeds equally. A was injured. It was held that the provision in the A.C.T. equivalent to s.6(2) did not apply, because the bricklaying in question failed to meet the requirement that it was "not ... work incidental to a trade or business regularly carried on by the contractor [Al in his own name". The case is thus distinguishable from the present case where that point is not in issue; see p.8 hereof. At p.3 Blackburn CJ explained the effect of the opening part of the equivalent to s.6(2) as follows:-

"The first words of the sub-section introduce a situation not covered by the definition of 'workman'. A 'workman' is a person employed under a contract of service. The sub-section, however, relates to a contract to perform any work. If there is a contract to perform

work, the person who so contracts cannot be a 'workman', because he does not work under a contract of service".

I respectfully agree.

Zuijs v Wirth Brothers Pty Ltd 93 CLR 561 reached the High Court by way of a case stated. The work to be performed under a contract involved the exercise by the contractor of a special skill - he was a trapeze artist in a circus - which the circus proprietors could not in fact control. The High  Court held that of itself this did not show that the contract was an independent contract and not one of service. The Court examined what had been proved in evidence and considered that it all pointed to the existence of a contract of service; there was no foundation for the conclusion below that it was a contract for services.

The Court then turned to consider the second question,  whether  there  was  error  in  finding  that the
applicant	was	not	a	deemed	workman	under	the	N.S.W.
equivalent to s.6(2). The focus was upon 2 aspects of that provision. The first was the "trade or business" exclusion which is not in issue on this appeal (see p.8). The second related to the nature of the work to be  performed.    As to
this,	it	had	been	submitted	by	the	applicant that the
provision did not require that there be any definite piece of work to be performed; the respondent had argued that what

was envisaged was the undertaking of a definite task for a fixed sum. (The applicant's weekly wages for various daily performances exceeded the then statutory amount of five pounds.) At p.574 the majority of the Court said:-

"In our opinion this provision is entirely inappropriate to the kind of contract in question in this case. That is shown by the opening words, 'Where a contract to perform any work exceeding five pounds in value'. You cannot satisfy this condition by a contract of indefinite duration for repeated performances of an act on a trapeze."

Mr Coulehan relied on this passage as establishing that s.6(2) was directed only to a "one-off" arrangement. I do not think it goes so far; Humberstone v Northern Timber Mills 79 CLR 389 does not support such a proposition.

I do not think there is a true dichotomy between the contract to perform work envisaged by s.6(2) and a contract to produce a certain result,  as  submitted by  Mr Coulehan. Here the contract was to perform work to produce a certain result; Mr Buschman was an independent contractor .. Section 6(2) clearly encompasses a contract for services, as the extract from Tomas (supra) makes clear; see also Babaniaris v Lutony Fashions Pty Ltd, unreported decision of the High Court,  5 June 1987.  The fact that Mr Buschman worked together with the Laotians to perform the work does not exclude him from the net of s.6(2); see Turner

v Stewardson and Ors (1961) 78 W1' (NS\.:) 1036 at 1039 and Linou v Antonas Constructions Pty Ltd (1984) 35 SASR 399 at 405..

I reject the first ground of appeal.

The second ground of appeal: was the subcontract sublet to the Laotians or were they employed by Mr Buschman as workmen?

Mr Coulehan and Mr Bracher contended that the Tribunal erred as to the onus of proof on this aspect of s.6(2); I have already dealt with this argument and rejected it, at pp.9-10.

The appellant would succeed on this ground if he showed error in the Tribunal's conclusion that Yrr Buschman had negatived these 2 matters.

Mr Coulehan and Mr Bracher contended that the evidence showed that the Laotians who actually worked were each individually employed by  Mr   Buschman  as  workmen,  or
engaged by him under contract for services. I do not accept that argument; I consider that the Tribunal's findings at pp.7 and 8 were soundly based upon the evidence, warranted by the evidence, and conclusions which I would have drawn. They are findings which are completely inconsistent with the

existence of any contract of service or contract for services between Mr Buschman and the Laotians. This was a family enterprise - as Mr Mildren QC put it, a kind of joint venture with no intention to cre&te legal relationships between members of the family, which included Mr Buschman. It is true that the concept of an extended family engaging in an enterprise in this manner is uncommon in modern Australian society, and may not have been contemplated when provisions such as s.6(2) were introduced. I reject this ground of appeal.

The	other	grounds of appeal, which related to the amount of the award, were not pressed.

In the result I dismiss the appeal	by	Mr Pulleine and affirm the determination by the Tribunal.

I will hear the parties as to costs.