GYLDENLOVE v SECCOMBE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, PRIESTLEY JJA, and Hope AJA 14 August 1989, 14 August 1989 [1989] NSWCA 93 WORKERS COMPENSATION — held that whether the parenthesis in s6(3A) of the Workers Compensation Act has been satisfied raises an issue of fact and not of law. ORDER Appeal dismissed with costs. Samuels JA This is an appeal from a decision of Judge Manser in the Compensation Court and arises from the following circumstances: the deceased was, on 14 December 1987, killed in a motor vehicle accident while driving to the property owned by the respondent and the subject of a share-farming agreement between the deceased, the applicant who was his de facto wife, and the respondent. The application made by the wife, the present appellant, was based upon the provisions of s6(3A) by which a contractor - that is to say someone working not under a contract of service but under a contract for services - is deemed to be a worker unless the requirements in the matter in brackets in the subsection are satisfied. Judge Manser, in a full and careful judgment, dealt with the subsection and with the general question whether the deceased was employed under a contract of service at Common Law. He came to a negative conclusion upon both matters, hence the present appeal. The appeal is confined to the argument that the deceased, although a contractor, was not, in the course of this share-farming agreement, performing work incidental to a trade or business regularly carried on by him in his own name, there being no question of his carrying on any business under a business or firm name. On the evidence, he and the applicant carried on business together in partnership but there appears to have been no submission made at the trial - and there was none before us - that this circumstance affected the proper construction to be attributed to the parenthesis in s6(3A). Mr Horler QC, for the applicant, has pointed out to us the clear policy of the provision which was dealt with at some little length in Humberstone v Northern Timber Mills Ltd (1949) 79 CLR 389 by Dixon J (as he then was) at 401 and following, and more recently by the President in Martin v Wallsend Coal Company Ltd (Court of Appeal, 1 February 1989, unreported). But questions of policy, though relevant to matters of construction, cannot convert what is a question of fact into a question of law. The submissions put to us were that on the findings of fact which his Honour made, he fell into error in some way in arriving at his conclusion that the deceased did perform the work in question under a business which he regularly carried on in his own name, that business being that of a share farmer. I must confess that I am still unable to perceive what the question of law is upon which reliance is placed. 2 UNREPORTED JUDGMENTS During the course of the argument Priestley JA suggested that the only way in which an argument raising a matter of law could be adumbrated would be if it was contended that the finding dealing with the true construction of the statutory provision was one to which no reasonable mind could have come, thus picking up one of the exceptions to the matters established in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. However, I find it quite impossible to say that no reasonable mind on these primary findings of fact could have concluded that the deceased was in the business of share-farming, that is to say in the business of being a farmer upon somebody else's property. I do not think it is necessary to go in detail through the facts fully set out in the judgment under appeal. However, it must be mentioned that from 1975 until 1982 the deceased worked as a share farmer on the property of a man called Armstrong, and in 1982 undertook the arrangement with the respondent. He was apparently known in the district as a good farmer and it was at the result of that reputation that he became successor to one Ellis who had previously share farmed the respondents' property. In order to undertake this arrangement the deceased, and the applicant no doubt, had to buy out Mr Ellis' interest in stock then on the property and in crops then growing on the property. For this purpose they borrowed a sum of about $20,000 in which the respondent rendered some assistance by way of an introduction to the bank. Accordingly, in order to undertake this work the deceased (and the applicant) were required to make a not inconsiderable investment of money. The deceased and the respondent paid in equal shares for feed and seed. Invoices for milk delivered to the local factory went both to the respondent and to the deceased, and the respondent paid over to the deceased the deceased's share of the milk and cream production. In all the circumstances it seems to me that it was a question of fact for the learned judge to determine whether the deceased was regularly carrying on a business in his own name. It can only be a question of law, in my view, if it is possible to define with precision what are the criteria which must be established before anyone can be said to be carrying on a business and, I suppose, depending upon the level of abstraction thought appropriate, the business of a share farmer. But this was not suggested and, indeed, I think probably cannot ever be achieved. These are questions of degree and thus of fact, and as such the findings are not open to review in this Court. Although valiant efforts were made it does not seem to me that any question of law can be distilled from Judge Manser's judgment and I would therefore propose that the appeal be dismissed with costs. Priestley JA In my opinion there were facts in evidence before the trial Judgeupon which he could properly come to the conclusion to which he did come. I cannot see in his statement of reasons any indication of a misunderstanding of the statutory provision under which the claim was made such as to make it arguable that there was a question of law involved in the appeal. The only matter which caused me any concern was the possibility that there might be some arguable question of law relating to the words in the subsection in parenthesis and I quote, "Business regularly carried on by the contractor in his own name". It seems possible to me that further exploration of the precise operation of those words may be needed in future cases. But on the evidence in the present case I do not think any such question arises as a question of law. URJ GYLDENLOVE v SECCOMBE (Hope AJA) 3 The applicant agreed in evidence before the trial Judge that, amongst other things, she and her late husband received cheques made out to the partnership of RF and SI Gyldenlove. Such said such cheques went straight to the bank. The evidence seems to make it quite clear that the payee's name on those cheques was RF and SI Gyldenlove. That alone provided sufficient material for the trial Judge to base a conclusion that the share-farming business which the two of them carried on was carried on in their own names. I am not suggesting that that evidence together with other evidence to somewhat similar effect was conclusive of the conclusion at which the Judge arrived. It is sufficient, however, that such evidence was before him and entitled him, as a matter of fact, to come to the conclusion on that aspect of the case which is implicit in his decision. It does not seem to me, therefore, that the appellant has been able to show that there is any question of law arising from the proceedings below upon which this Court is entitled to exercise its jurisdiction. In my opinion the appeal should be dismissed with costs. Hope AJA I agree. The order of the Court is that the appeal is dismissed with costs. Counsel for the Appellant: K Horler QC with RF Wilkins Solicitors for the Appellant: Mitchell, Playford and Radburn Counsel for the Respondent: F McAlary QC with JJE Fernon Solicitors for the Respondent: Sparke Helmore and Withycombe