CAM & SONS PTY LIMITED v SARGENT S7/1940

IN THE DISTRICT COURT OF )

) THE METROPOLITAN DISTRICT ; HOLDEN AT SYDNEY. )

BEFORE HIS HONOR JUDGE MARKELL. Wednesday, 20th March, 1940.

SARGENT v. CAM & SONS, PTY. LIMITED. JUDGMENT.

HIS HONOR: The plaintiff in this action is seeking to recover from the defendant com- pany certain sums of money which he claims are due to him upon a balance of account as master of the S.S."Tuncurry" for wages and

overtime under the provisions of a Common-

wealth industrial award.

The defendant is the owner of the S.S. "Tuncurry", and by an agreement dated Novem- per 1, 1938, it purported to hire the said vessel to the plaintiff and eight other per- sons upon the terms appearing therein.

This agreement remained in force until 83lst March, 1939, so that the relevant period is from lst November, 1938 to the latter date.

The said agreement provided briefly that the defendant hired the "Tuncurry" to the plaintiff and his fellow contractors - therein referred to as the partnership - the partnership undertaking to use the said ship only for the purpose of carrying such cargoes

of coal as might be found by the defendant

93. Judgment.

94, Judgment.

from Swansea to Sydney.

The partnership was to receive from the defendant £11.10.0 together with 10/- mooring allowance per trip from Sydney to Swansea and back, provided the vessel on the 5 return journey carried approximately 150 tons of coal, and, in addition, in certain events the partnership was to get 5% of what is re- ferred to in the agreement as the earnings.

I shall refer more particularly to 10 certain other provisions of the agreement later in my judgment.

It is claimed on behalf of the defend- ant company that the effect of this agreement was to make the plaintiff and the other mem- 15 bers of the partnership independent con- tractors and that they were in no sense em- ployees of the defendant. On the other hand the plaintiff contends that the agreement is merely a colourable sham and that in 20 fact he was employed with the others by the defendant to navigate the vessel from Sydney to Swansea and back and that therefore he comes within the terms of the award above referred to and is entitled to the wages 25 and overtime claimed.