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SUPREME COURT OF VICTORIA IN THE EXERCISE OF FEDERAL JURISDICTION

DEPUTY COMMISSIONER OF TAXATION (Com) v BOLWELL

Lush, J

13 October 1967 -


  Lush, J   The plaintiff in this action sues the defendant for a sum which, it is alleged, the defendant as employer should have deducted from the salaries or wages of various employees. The duty to make the deductions is said to arise under s 221C(1A) of the Income Tax and Social Services Contribution Assessment Acts, and the liability to pay to the plaintiff the amount of deductions not in fact made under s 221N and 221R. The issue in the case is whether the payments made by the defendant to a number of persons with whom he had contracts were payments of salary or wages within the meaning of the Act.

   The plaintiff put in evidence a certificate under s 221R(2)(a) that the defendant was a group employer, and tendered a further certificate signed, as counsel for the plaintiff told me, on the first day of the hearing, but dated with the date of issue of the writ and intended to prove the amount owing at that date. Upon objection I rejected this certificate as not complying with s 221R(2)(b), under which it was tendered. I took this course upon the view that the only certificate authorized by paragraph (b) was one which specified a sum due on the date when the certificate was signed.

   Counsel for the parties then informed me that in discussions between them following upon my ruling it had been agreed that if the plaintiff's case were then closed no submission that there was no case to answer would be made by counsel for the defendant and the defendant's evidence would be led. This course was followed and the defendant gave evidence and introduced a number of exhibits. This is the evidence to which I shall refer below.

   Whether the payments made by the defendant were payments of salary or wages is to be decided by reference, first, to the definition of that term in the Acts. The definition is, so far as relevant, as follows:-

   " 'Salary or wages' means salary, wages, commission, bonuses or allowances paid to an employee as such, and without limiting the generality of the foregoing includes any payments made-

 (a) Under a contract which is wholly or substantially for the labour of the person to whom the payments are made;"

   The payments will come within the definition if the relationship between the defendant and each of the other persons concerned was that of master and servant. If that was not the relationship between them the payments will be payments of salary and wages if paragraph (a) of the definition applies to them.

   The period of time relevant to the plaintiff's claim is from 1 July 1964 to 31 January 1966. Before 1 July 1964 the defendant had entered into a contract with those managing the Ritz Hotel at St Kilda to provide musicians to play in the dining room of the hotel and entertainers to put on a floor show there. The defendant provided spot lights and special lighting and a public address system. These were operated and maintained by a man named Jackson engaged by the defendant for that purpose. The defendant said that Jackson had no authority from him to give orders to the musicians and entertainers, and that it was more probable that they would give instructions to Jackson.

   The plaintiff tendered a list of 32 names of persons in respect of whom it was alleged that the defendant should have, but had not, made deductions in the period in question. Eight of these names were eliminated at the trial. I was told that tax payments had been received from these eight, and that the plaintiff therefore no longer sought from the defendant any payment in relation to their salaries or wages, but it was common ground that these eight, along with the other 24, had been engaged in some capacity by the defendant for his enterprise at the Ritz Hotel.

   The evidence relating to the contracts made between the defendant and the 24 remaining persons is such that I should, I think, consider the contracts in two main groups. One particular case can be put aside at the outset. That is the case of one C Bassitt. The evidence is that she was a bookkeeper and none of the matters which have to be considered in relation to the others are relevant to her case. In fact, no evidence relating to Miss Bassitt's engagement by the defendant was led, but while the overall onus of proof rests upon the plaintiff I think that I should, in the particular circumstances of this case, treat the defendant as having tacitly admitted that she was a servant and that the deductions claimed in respect of salary and wages paid to her should have been made. The amount involves is $1.60

   The first main group consists of musicians engaged to play in the band. Nine of the 32 names, and eight of the 24 are the names of musicians. The defendant said that he engaged one Osborn, a drummer, as band leader, and told him to get together a four piece band. This Osborn did, engaging at the outset three other musicians. From time to time there were changes in the composition of the band, and, in fact, Osborn was one of those who left. When he left another member of the band stepped into his shoes as leader.

   Osborn's salary was fixed by his agreement with the defendant. Osborn negotiated the salaries of the others when he was engaging them. The general method of payment was that Osborn or his successor gave the defendant each week a list of the payments due to the members of the band, including himself, and received from the defendant the necessary money, which he then distributed. Sometimes a musician would ask for and receive payment during the week.

   The musicians supplied their own instruments, other than a piano which belonged to the hotel, and the defendant said that the musicians supplied the sheet music. It was understood that they would start playing at about 7 pm. The band leader was responsible for starting up and for the choice of the music, other than the accompaniments to the entertainers' acts, which the band played. No directions were given on the last matter by the defendant.

   From time to time individual bandsmen did not perform in person but sent deputies or substitutes to perform in their places. The defendant said that this was a right recognized in the entertainment industry and relevantly enjoyed by musicians and entertainers of the kind with which this case is concerned. The deputy is not paid by the principal but looks to the person for whom he is substituting for payment. The existence of this practice relating to deputies was not challenged by the plaintiff. The defendant thought that in the relevant period there were about a dozen instances in which musicians sent deputies. On one occasion two musicians sent deputies on the same night. These men arrived late and not sober, and as result the hotel management complained to the defendant and the defendant to the band leader.

   The defendant was not at the hotel every night and during a period of some months rarely visited it. Normally, however, he was present on about three nights a week and on one of those nights saw the whole show through. Unless the incident which arose from the late arrival of the two deputies is regarded as an assertion by the defendant of a right to exercise control over the musicians, the evidence discloses no assertion of such a right.

   The evidence points clearly to the fact that, despite the method of engagement, the defendant made a contract with each musician engaged. The defendant did not contract with the leader for the provision of the band, but contracted with him for his own services and authorized him to engage musicians on his, the defendant's behalf. Osborn himself signed a written agreement with the defendant which calls for the provision of his services as a performer and provides for weekly payment of £30. The agreement is inconsistent with any obligation on Osborn's part to pay other musicians. Another written contract with a musician named Absalom was also put in evidence: this is a contract between Absalom and the defendant. The other musicians did not sign written contracts, but there is nothing to suggest that they contracted with anyone other than the defendant and the defendant in giving evidence assumed rather than stated that they contracted with him.

   The two written contracts to which I have referred were made on a standard form prepared by the defendant and approved by his legal advisers. This form was also executed by some of the entertainers. It begins with the statement, "It is agreed that: the performer warrants that he or she is an independent contractor and contracts to supply his or her services or the services of ..., performers, costumes, arrangements and skills, abilities or talents to the booker for use in floorshows and entertainments." The alternative before the blank was intended to make the form applicable to a contract either with a performer for his own performances or with an entrepreneur for the performances of others. In fact all the forms tendered in evidence have been awkwardly filled in, but in substance provide for performances of the persons contracting. The form goes on to deal with matters relating to union membership. It then provides for a weekly payment to the performer, which the performer agrees to accept as "full and final payment for services etc. rendered". The performer "indemnifies" the booker against "claims for holiday and sick pay, tax deductions, insurance or any similar benefits". The next two sentences of the form are as follows: "This agreement is for a period of two weeks and thereafter continues indefinitely unless terminated by either party with 48 hours clear notice of termination. The performer agrees to perform on six nights weekly and to rehearse as deemed necessary by the booker."

   This form of contract does not define: (a) the nature of the services contracted for (eg as trumpeter or drummer, singer or strip-tease artiste); (b) the extent of the services contracted for in terms of hours or number of performances per night; (c) the times at which the services are to be rendered; or (d) the place at which they are to be rendered.

   If these omissions are to be filled in by directions given by the party described as the booker, ie the defendant, it would I think follow that the booker had such control of the rendering of the services as to lead to the result that the contract created the relationship of master and servant. The alternative view, contended for by the defendant, was that at the time of the engagement it was clear (a) in the case of a musician what instrument or instruments he was being engaged to play and in case of an entertainer what act he or she was being engaged to perform; (b) that musicians were engaged to play throughout the evening (no finishing time was referred to in the evidence) and entertainers were to perform their acts once per night; (c) that times for the musicians were defined as set out in (b) and times for entertainers were a matter for arrangement between themselves as was the sequence in which acts were to be put on and (d) that the engagement was to perform at the Ritz Hotel.

   No evidence was given of the conversation leading to the engagement of any of the musicians other than Osborn, but I think it probable that upon the engagement of those men there was clear understanding on these points: (a) what instrument or instruments the relevant musician was to play; (b) that the hours of duty were from 7 pm to some defined time not stated in the evidence; (c) that the engagement was an engagement to play at the Ritz Hotel.

   Osborn's name was one of the eight eliminated from the original list of 32, but I have found it convenient to consider his contract because it is in the same form as all but one of the other written contracts and because I think that it must, in the absence of direct evidence, be inferred that when Osborn engaged musicians to perform with him their obligations as to performance and rehearsals were the same as Osborn's. The last inference is supported by the defendant's evidence, the substance of which was that the adoption of the written form was not intended to bring about any change in the way the defendant's business was conducted, but was intended only to clarify and evidence the position of the performers as independent contractors. The defendant had in fact provided performances for the Ritz Hotel since the beginning of 1962, but the standard written form of contract was not adopted until 1965, and one of the reasons for its adoption was that the Taxation Department in 1964 or thereabouts claimed that deductions should be made from the payments made under the verbal contracts.

   I turn now to the question of the classification of the contracts made with the musicians. Whether these contracts were contracts of service is a question of fact-see Zuijs v Wirth Bros Pty Ltd (1955), 93 CLR 561, at pp 568-9. This question of fact must, of course, as Zuijs' Case shows, be decided upon a proper legal basis. In Queensland Stations Pty Ltd v Federal Commissioner of Taxation (1945), 70 CLR 539, Latham, CJ, at p 545, said: "If the work to be done by one person for another is subject to the control and direction of the latter person in the manner of doing it, the person doing the work is a servant and is not an independent contractor, and prima facie his reward would be wages. An independent contractor is subject to the control and direction of the latter person in the manner of doing it, the person doing the work is a servant and is not an independent contractor, and prima facie his reward would be wages. An independent contractor undertakes to produce a given result, but is not, in the actual execution of the work, under the order or control of the person for whom he does it."

   In endeavouring to apply this principle to the facts of the particular case, it is necessary to bear two things in mind. The first is that "a false criterion is involved in the view that if, because the work to be done involves the exercise of a particular art or special skill or individual judgment or action, the other party could not in fact control or interfere in its performance, that shows that it is not a contract of service but an independent contract" (see Zuijs' Case 93 CLR, at p 570). On the other hand, "a reservation of a right to direct or superintend the performance of a task cannot transform into a contract of service what in essence is an independent contract" (see Queensland Stations Pty Ltd v Federal Commissioner of Taxation (1945), 70 CLR at p 552).

   In the course of argument a number of cases were cited involving persons in occupations resembling those now under consideration. In Performing Right Society Ltd v Mitchell and Booker (Palais De Dance) Ltd, [1924] 1 KB 762, the members of a dance band were held to be servants of the establishment which engaged them. In Federal Commissioner of Taxation v J Walter Thompson (1944), 69 CLR 227, actors in a radio play were held to be servants of the engaging establishment. In Stagecraft v Minister of National Insurance, [1952] SC 288, two comedians engaged to perform in a variety show were held to be engaged as servants. In Crowe v Inland Revenue Commissioner (NZ), [1954] NZLR 607, certain band musicians were held to be independent contractors. In Zuijs v Wirth Bros (1955), 93 CLR 561, the High Court took the view that there was abundant evidence to establish the proposition that the trapeze artist who was the appellant in the case was engaged as a servant. In Whittaker v Minister of Pensions, [1966] 3 All ER 531; [1967] 1 QB 156, it was held that another trapeze artist was engaged as a servant. Each of these cases was, of course, decided upon its particular facts, and in the majority of them an examination was made of the obligations of the performer additional to his obligation to render his particular act or performance, and of the general circumstances surrounding the rendering of his act or performance.

   In Short v Henderson Ltd, [1946] SC (HL) 24, Lord Thankerton adopted the following tabulation of the four indicia of a contract of service: "(a) The master's power of selection of his servant; (b) the payment of wages or other remunerations; (c) the master's right to control the method of doing the work, and (d) the master's right of suspension or dismissal".

   In citing this case in Morren v Swinton and Pendlebury Borough Council, [1965] 2 All ER 349, Lord Parker, CJ, said (at p 351): "The cases have over and over again stressed the importance of the factor of superintendence and control, but that it is not the determining test is quite clear. ... Clearly superintendence and control cannot he the decisive test when one is dealing with a professional man, or a man of some particular skill and experience. Instances of that have been given in the form of the master of a ship, an engine driver or professional architect or, as in this case, a consulting engineer. In such cases there can be no question of the employer telling him how to do work; therefore, the absence of control and direction in that sense can be of little, if any, use as a test."

   The four indicia referred to in Short v Henderson, supra, may be found in a passage in the joint judgment in Zuijs v Wirth Bros Pty Ltd (1955), 93 CLR 561, at p 572. In two recent English cases, there has appeared a concept which, I think, is new. The concept is that it is relevant to examine the extent to which it can be said that the activities of the subordinate are integrated into the general undertaking of the employer. If it can be said that the subordinate's activities are so integrated, that fact points to the relationship of master and servant. If the activities of the subordinate are not so integrated, it is more likely that the subordinate's contract should be classified as an independent contract. The cases concerned are Stevenson, Jordan and Harrison Ltd v McDonald and Evans, [1952] 1 TLR 101, and Whittaker v Minister of Pensions, supra. In the former case, Denning, LJ, said at p 111 (referring to Cassidy v Ministry of Health, [1951] v All ER 574; [1951] 1 KB 343): "Lord Justice Somervell went on to say: 'One perhaps cannot get much beyond this: "Was the contract a contract of service within the meaning which an ordinary person would give to these words?" ' I respectfully agree. As my Lord has said, it is almost impossible to give a precise definition of the distinction. It is often easy to recognize a contract of service when you see it, but difficult to say wherein the difference lies. A ship's master, a chauffeur and a reporter on the staff of a newspaper are all employed under a contract of service; but a ship's pilot, a taxi man, and a newspaper contributor are employed under a contract for services. One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business, and his work is done as an integral part of the business; whereas, under a contract for services, his work, although done for the business, is not integrated into it but it is only accessory to it."

   In Whittaker's Case, Mocatta, J, quoted the dictum of Denning, LJ, which is set out above, and in dealing with the facts of the case before him said: "Looking at the contract as a whole and the evidence as to how she was required to perform her duties under it, it seems to me that she had no real independence and had to carry out her contractual duties as an integral part of the business of the company during her engagement. In other words the feature of contracts of service to which Denning, LJ, drew attention in his judgment in Stevenson's Case, cited earlier, is clearly present here."

   Dealing first with the musicians, the state of the evidence makes the task of decision difficult. It may be convenient to begin by considering the contract made between the defendant and Osborn, the original leader of the band. The evidence given about the engagement of the band members proceeded on the basis that Osborn was authorized by the defendant to recruit three bandsmen. Osborn's own contract is dated 12 July 1965, and as the original band must have been recruited long before this date the inference is, and I think indeed the evidence shows, that Osborn worked for the defendant at the Ritz Hotel for a considerable time before signing the contract.

   I come to the conclusion that the written contract constitutes Osborn an independent contractor and not a servant. Two matters in the contract lead me to this conclusion. The first is the opening clause warranting that the performer is an independent contractor and the second is that the contract is for a period of two weeks continuing thereafter indefinitely "unless terminated by either party within 48 hours clear notice of termination". So far as the first of these two provisions is concerned, it appears to me that the defendant and Osborn were in a situation in which it was open to them to mould their legal relationship either as a master and servant relationship or as a principal and contractor relationship. They chose the former, and there is no legal reason why effect should not be given to their choice. So far as the second provision is concerned, it appears to me, having regard to the general evidence as to control exercised by the defendant over the musicians and having regard to the nature of the work which the performers undertook, that the 48 hours notice provision is really a substitute for the normal master and servant control. With this power of dismissal, the defendant could leave the band to manage its own affairs or to run itself, and yet retain the ability to step in and by dismissal put an end to any situation which he thought undesirable. With this power, he had little need of any other power of control, and in the light of the evidence that no control was exercised I think that the proper inference is that a principal and contractor relationship came into being.

   The other musicians are in a different position upon the evidence. As musicians performing under a leader, they must necessarily have been subject to detailed control in the performance of their work. The question then arises whether this detailed control was something to which, by their contracts, they agreed to submit, or whether it was the control of master over servant. The contract of each musician was, as I have said, a contract with the defendant who exercised no control. There was no contract between the musicians and the band leader, who did exercise control. In these circumstances, I think that the submission of the musicians as to the control of the band leader throws little light on the question whether they were the servants of the defendant. I do not think, however, that the fact that band leader was, at least for a material time, an independent contractor vis-à-vis, the defendant of itself produces the result that the other musicians had the same relationship to the defendant. It appears to me that while the band leader may have been an independent contractor he may nevertheless have been the delegate of the defendant for the purpose of exercising control over the musicians.

   Only two of the musicians, Osborn and Absalom, executed written agreements. The defendant gave evidence that the making of the written agreements was intended to be declaratory in effect, and that they really made no difference to the arrangements between himself and the signatories existing before the execution of the contracts, and that those who executed contracts were in no different position from those who had verbal contracts only. I am prepared to accept the defendant's evidence on this matter as an accurate description of his intentions and hopes as the entrepreneur organizing the entertainments, but I have come to the conclusion that the written contracts must be regarded as placing the musicians who signed them in a different position from that of the musicians engaged verbally. The reason for this is that the verbal contracts cannot possibly have contained the warranty which appears in the written contracts, and there is certainly no evidence that the subject-matter of the warranty was adverted to in any of the conversations constituting or leading to verbal contracts. Similarly, there is no evidence that those conversations stipulated for termination on 48 hours notice unless the defendant's general observation that the written contract was not different in substance from the verbal contracts can be given this specific significance. It is these two provisions in the contract that I find persuasive in leading me to the conclusion that the written contract creates a principal and contractor relationship. Without these two provisions, the case made by the defendant involves the proposition that when a musician is engaged to play at recognized hours on six nights of the week for a weekly salary, the proper inference is that he is not a servant but an independent contractor, at any rate if his employer is not actively engaged in the direction of the performances. I think this is a proposition which cannot be sustained and must be rejected. In my opinion, it is virtually the proposition which was decisively rejected by the High Court in Zuijs' Case, supra. Paraphrasing the words of the joint judgment in that case (93 CLR, at p 569), one might say: "Here is a musician engaged indefinitely at so much a week to give with others a musical performance on six nights of the week. That is in effect all you know that matters. What is there in it that points to an independent contract?"

   Further, I think that the musician's work was performed as an integral part of the defendant's enterprise. They played throughout the evening and they played not only the music chosen by the band leader as the band's contribution to the entertainment but also the accompaniments of the entertainers.

   The result is that I hold that, of the musicians whose names are still upon the list in actual controversy between the parties, Absalom is the only one who is an independent contractor. The remainder should, in my judgment, be classified as servants.

   The custom in the entertainment industry of permitting the performer to send a deputy does not seem to me to be inconsistent with the existence of a master-servant relationship between the employer and the performer Mr O'Shea, for the defendant, relied strongly upon this custom, but upon consideration it appears to me that the evidence proves only this, that a performer may either take engagement as a servant or as a contractor, but in either event has the right recognized in the industry of sending a substitute. The extent of this right was not made clear, but in my opinion the proper inference from the evidence is that it is a right which may be availed of occasionally, but certainly falls far short of a right to have the work or performances contracted for performed throughout the contract by another or others. I have no doubt that a performer would soon be informed by an employer of the employer's view that excessive use was being made of this right.

   I turn now to the position of the entertainers. Fifteen of the final 24 names on the list are names of entertainers, and of these seven signed agreements in writing. I include in these 15 Robert Leslie Harris, who was both, compere and singer. Six of these agreements were in the common form already discussed. The seventh will require separate consideration.

   Dealing first with the six standard form written contracts, the observations which I have already made concerning the incompleteness of these documents are equally applicable when they are used for the engagement of entertainers. However, I think it probable upon the evidence that when each entertainer was engaged, it was clear to both parties to the engagement: (a) what act the entertainer was engaged to perform; (b) that her engagement was for one performance per night for six nights of the week; and (c) that the engagement was for shows to be staged at the Ritz Hotel.

   The defendant's evidence was that he exercised no control over the content of the act performed or the performance of it. He said that he chose the acts after seeing them. If upon seeing the act performed at the Ritz Hotel he was dissatisfied with the performance, his practice was to say to the entertainer concerned that the act was not as it had been when he had bought it, and that either it must be restored to its former standard or the engagement must be cancelled. He said that he never directed a rehearsal, and that although he might occasionally have suggested to an entertainer that a new act be substituted for the act which was being performed at the time of engagement, he never ordered the substitution of a new act for an old one. He said that neither he nor his compere gave orders as to the sequence of the acts constituting either the early or the late show: on the contrary, it was left to the entertainers themselves to arrange their affairs so that one group of acts was available for the early show and another group of acts for the late show. He said that one of the girls would come forward to accept the responsibility for making this division.

   As in the case of the musicians, it appears to me that it was open to the defendant and his entertainers to arrange their affairs either on a master and servant basis or on a principal and contractor basis. For the reasons which I gave when discussing the contract made with Osborn, I think that the seven entertainers who signed written contracts are to be classified as contractors and not as servants. I mention that Harris, the compere, was one of those who signed a written contract.

   The remaining entertainers present possibly the most difficult problem in a case which I regard as difficult generally. The evidence shows that the girls arrived at the hotel in time to perform their acts, and left when they had performed them. Outside the performance of their acts, they owed no duties to and apparently had no contact with the defendant. Their position is different from that of the trapeze artistes in Zuijs' and Whittaker's cases. In both of those cases the artistes had duties to perform other than the presentation of their special acts, and in both cases the artistes travelled with the circuses and must obviously have been subject to a considerable degree of domestic control. In Whittaker v Minister of Pensions, [1966] 3 All ER 531, at p 538; [1967] 1 QB 156, at p 167, Mocatta, J, said of the claimant: "Had she only been obliged to perform her trapeze act, even if she had also been under various constraints and controls in relation thereto, there would have been grounds for holding her contract to have been one for services." There is in this case, I think, no basis for suggesting that the entertainers were integrated into any business conducted by the defendant or even into any overall scheme of entertainment provided by him. They simply arrived, performed their acts and left.

   Mr Young contended that realism required the inference of a substantial degree of control over the entertainers. He stressed particularly the need for determining the time at which each entertainer's act was to be performed, and the sequence in which they were to be performed. He also submitted that there were a number of ancillary matters such as lighting, costume and matters which may be generally described as matters of taste in respect of which the performer must have been subject to control. These are arguments of weight, but in my judgment the situation was one in which the defendant's right was to terminate the engagement rather than to control the performance of it. No doubt his power to terminate put him in the position that the entertainer would accept requests or suggestion or even directions from him.

   The result is that I hold that the six entertainers who signed common form contracts, and the eight who worked under verbal contracts, were independent contractors.

   The seventh written contract is a contract between the defendant and one Helen Joy. It contains the warranty and termination clauses to be found in the standard form. The main difference between it and the other contracts is that it contains a clause in the following terms: "The performer contracts to perform at all times as required between the hours 8 pm and 12 midnight and to perform such services as agreed between the performer and the booker."

   This clause appears to give to the booker the right to give directions as to times of performance, but it restricts the obligation to perform to services which are agreed upon, and thus prevents the booker from giving directions as to the services to be performed. I do not think that there is adequate reason for distinguishing this contract from the common form contracts, and I accordingly hold that this contract also creates a principal-contractor relationship

   It remains to consider whether the payments made by the defendant to the 24 persons whose names remain on the list fall under paragraph (a) of the definition of "Salary or wages" which I have quoted, supra.

   Mr O'Shea argued that the right of the musicians and entertainers to use deputies produced the effect that the relevant contracts were not contracts "substantially for the labour of the person to whom the payments are made". This argument refers to the decision of the High Court in Neale v Atlas Products (Vic) Pty Ltd (1955), 94 CLR 419; [1955] ALR 426 At (CLR) p 425, and (ALR) p 427, the Court in a joint judgment made it clear that this expression could only apply to a situation in which the terms of the contract required the substantial performance of the contract by the contractor's own labour. If the contract did not call for this, it was immaterial that, in fact, the contract was performed by the contractor's own labour. In my opinion, however, the evidence relating to the right to use deputies does not produce the result that the contract made with the musician or entertainer is not a contract "substantially for the labour" of the contracting party. I have discussed this matter above. For Mr O'Shea's argument to be correct, it would be necessary to hold that the right to use substitutes was so extensive that the contracting musician or entertainer need not substantially perform the contract in person. I do not think the evidence justifies such a view of the right.

   In Neale v Atlas Products (Vic) Pty Ltd, supra, the following passage occurs in the judgment of the Court (94 CLR, at p 425; [1955] ALR, at pp 427-8): "It may be, however, that in cases where an independent contractor is required by the terms of his contract to perform the contractual work himself the addition to the general definition may have some application, but it is unnecessary, in the circumstances of this case, to express any concluded view concerning contracts of such a special class. If this be so, however, it is the result rather of chance than design for the extension of the defined term was not, in our view, directed to considerations of the nature referred to. Its language is, in our opinion, designed to deal with circumstances of another kind. It is not unusual for contracts of employment to create obligations on the part of the servant not only to make his services or labour available to the master but also to do additional things. He may, for instance, be required to provide his own tools or equipment. ... Or, on the other hand, the contract may provide for additional payments to be made to the employee based on circumstances which, in one sense, may be thought to be extraneous to the mere provision of his services such as a special living allowance in specified areas. ... In many such cases the payments stipulated for may be said to be payments made under a contract wholly or substantially for the labour of the person to whom the payments are made, though it is a simple matter to conceive examples of the former class where remuneration might be said to be substantially for the hire of plant or equipment. ... In any such cases, however, the critical question will be one of fact."

   I have given this passage careful consideration, but it appears to me to be impossible to avoid the conclusion that if the contracts which are the subject of this case are contracts "for labour" then the payments made under them are covered by the intended definition. It may be that this case illustrates that the definition extends to something which it was not originally intended to extend to, but such a consideration does not alter the obligation of a Court to give the words of a statute their natural meaning. I have given consideration to the possibility that the words which introduce the subparagraphs of the definition, "without limiting the generality of the foregoing", in some way limit the meaning to be given to the words of the subparagraphs. In Ex Parte Provera (1952), 69 WN (NSW) 242, Street, CJ, at p 245, treated these words in the statute then before him as indicating that the legislature was not intending to extend or widen what had gone before. In the present statute, no such intention can be inferred from these words, for the reason that the remaining paragraph (b), (c), (d) and (e) all extend to matters which cannot come within the original definition of "Salary or wages".

   The final question, therefore, is whether the contracts made with the musicians and entertainers can be described as contracts "for labour". The Oxford Dictionary defines "labour" as "bodily or mental toil". The cases cited in Stroud under "labour" and "labourer" show, I think, an inclination to treat both words as involving physical toil. I have been unable to find anything in the Income Tax and Social Services Assessment Act which throws any light on the meaning of the word.

   I think that the expression "contract for the labour of a person" imports that the "person" is engaged to work for the purpose of achieving a result determined or defined by someone else, to supply a component required for the attainment of an object conceived by someone else. The work involved may be physical, mental, or, if it is a separate category, artistic. It may be skilled or unskilled. It may be performed under a contract of service or under a contract for services.

   If this is a correct appreciation of the meaning of the expression "contract for the labour of a person" it does not appear to me to cover the case of the artiste or for that matter the professional man whose efforts result in something of his own creation, defined and limited according to his talents, and, at the risk of repetition, I think that this remains true, even in cases where the relevant contract is a contract of service. This is, I think, consistent with the passage in the joint judgment in Zuijs v Wirth Bros Pty Ltd (1955), 93 CLR 561, at p 574, where it is said that a contract of indefinite duration for repeated performances of an act on a trapeze cannot be described as "a contract to perform any work exceeding five pounds in value".

   Accordingly I hold that paragraph (a) of the definition has no application in the present case.

   The result of the case, therefore, is that the plaintiff is entitled to recover the deductions which should have been made from the salaries or wages of C. Bassitt and of the musicians who did not sign written contracts, but is not entitled to recover anything in respect of payments made to the musician who signed such a contract or to the entertainers. There will be judgment for the plaintiff for $419.37.

   The statement of claim also claims interest under s 78 of the Supreme Court Act calculated from 29 April 1966, which is alleged to be the date on which demand for payment was made. So far as I am aware, the making of this demand was not proved in evidence, and it is not admitted on the pleadings. However, the plaintiff has a not substantially different right under s 79A of the Act to apply for interest from the commencement of the action, in this case 12 August 1966.

   

Solicitor for the plaintiff: Commonwealth Crown Solicitor.

Solicitor for the defendant: David L Wayman.

 



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