J A & B M Bowden & Sons Pty Ltd v Chief Commissioner of State Revenue [2001] NSWCA 125

[2001] ATC 4220 Reported Decision : (2001) 47 ATR 94 (2001) 105 IR 66

New South Wales Court of Appeal

CITATION : J A & B M Bowden & Sons Pty Ltd v Chief Commissioner of State Revenue [2001] NSWCA 125 FILE NUMBER(S) : CA 40611/00 HEARING DATE(S) : 26/04/01 JUDGMENT DATE : 7 May 2001

PARTIES : J A & B M Bowden & Sons Pty Ltd v Chief Commissioner of State Revenue JUDGMENT OF : Giles JA at 1; Hodgson JA at 2; Ipp AJA at 3

LOWER COURT JURISDICTION : Supreme Court - Administrative Law Division LOWER COURT 30041/98 FILE NUMBER(S) : LOWER COURT Brownie AJ JUDICIAL OFFICER :

COUNSEL : B J Sullivan SC/M Richmond (Appellant) R Hamilton (Respondent) SOLICITORS : Murphy & Maloney (Appellant) I V Knight (Crown Solicitor) (Respondent) CATCHWORDS : TAXATION - payroll tax - whether seasonal fruit pickers were paid a "wage" within the meaning of s 3AA(1) Pay-roll Tax Act 1971 - whether these workers were properly classified as employees - EMPLOYMENT LAW - determinants of employment relationship - control of seasonal workers - absence of mutuality of obligation to work - method of payment - facts showed workers were under constant right of conrol and threat of summary dismissal - trial judge's view that employment relationship existed and was justified task of appeal court - appeal dismissed. D LEGISLATION CITED : Pay-roll Tax Act 1971 Stevens v Brodribb Sawmilling Company Pty Limited (1986) 160 CLR 16 Vabu Pty Limited v Federal Commissioner of Taxation (1996) 96 ATC 4898 Humberstone v Northern Timber Mills (1949) 79 CLR 389 Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 Commissioner of Pay-roll Tax (Vic) v Mary Kay Cosmetics Pty Limited [1982] VR 871 CASES CITED: O'Kelly v Trusthouse Forte Plc [1984] QB 90 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Victoria) (1997) 97 ATC 5070 Queensland Stations Pty Limited v Federal Commissioner of Taxation (1945) 70 CL 539 Zuijs v Wirth Brothers Pty Limited (1955) 93 CLR 561 Airfix Footwear Limited v Cope (1978) ICR 1210 Nethermere (St Neots) Limited v Gardiner [1983] ICR 319 DECISION : Appeal dismissed with costs.