Federal Commissioner of Taxation v Vabu Pty Ltd

High Court of Australia Toohey, Gaudron, McHugh JJ Federal Commissioner of Taxation v Vabu Pty Ltd

Toohey J

Mr Trew.

Mr J L Trew, QC: If your Honours please, I appear with my learned friend, Mr S W GIBB, for the applicant (instructed by the Australian Government Solicitor).

Mr J N West, QC: Your Honours, I appear with my learned friend, Mr B R Pape, for the respondent (instructed by Toomey Pegg & Drevikosky).

Mr Trew: The first two points in the applicant's summary of argument for special leave we will deal with together and I will call those the employment points and I will deal with those first and leave the third point, the construction point, until after I have dealt with those.

In the Court of Appeal the complaint that the applicants make on this issue is that the court really heard the proceedings de novo. It did not consider the trial judge's judgment and as whether he was wrong and, if so, why. The main judgment on the employment issue is the judgment of Mr Justice Meagher in which Mr Justice Sheller substantially agreed with. Both of those two members of the Court of Appeal said that either the issue that was raised was difficult or it was finely balanced and, in those circumstances, it points up as a matter of principle the great importance of identifying where precisely in principle the trial judge was wrong.

There are two particular aspects of this, in our submission, that had the effect of causing the appeal process to miscarry, with the consequence that this issue raises an important question as to the way in which appeals are disposed of. The two matters in that context that arise are, firstly, that nearly half of the courier fleet were push bikes and motor cycles and the second point was that the terms of engagement stated in terms that the couriers, and this bit I am quoting, "agreed to work under conditions … that were stated". The trial judge referred to both of those issues in his reasoning and in the Court of Appeal none of the judges referred to those terms precisely. It is true that Mr Justice Meagher, on the first point about the courier fleet, said, first of all, he gave weight to the courier's expenses and said that they are very considerable.