Forstaff & Ors v The Chief Commissioner of State Revenue [2004] NSWSC 573

New South Wales Supreme Court

CITATION : Forstaff & Ors v The Chief Commissioner of State Revenue [2004] NSWSC 573 revised - 11/08/2004 HEARING DATE(S) : 8/6/04, 9/6/04, 10/6/04 JUDGMENT DATE : 8 July 2004

JUDGMENT OF : McDougall J at 1 DECISION : See paras [122] to [124] of judgment

CATCHWORDS : TAXATION AND REVENUE - payroll tax - where plaintiff provides temporary workers to clients - where triangular relationship consisting of contract between plaintiff and worker, and contract between plaintiff and clients - whether plaintiff liable to pay payroll tax in respect of workers - whether workers were employees of plaintiff at common law - whether at common law there was a contract of employment between worker and plaintiff - when contract of employment formed - employees and independent contractors - "dichotomy" between employees and independent contractors - "irreducible minimum of mutual obligation" LEGISLATION CITED : Pay-Roll Tax Act 1971 (NSW) Drake Personnel Limited v Commission of State Revenue (Vic) (1998) ATC 4915 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 Hollis v Vabu Pty Limited (2001) 207 CLR 21 Brook Street Bureau (UK) Ltd v Dacas [2004] EWCA Civ 217 Carmichael v National Power Plc [1999] 1 WLR 2042 Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104 Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Insurance Company of Australia Limited (1931) 46 CLR 41 Brooks v Burns Philp Trustee Co Ltd (1969) 121 CLR 432 CASES CITED : Automatic Fire Sprinklers Proprietary Limited v Watson (1946) 72 CLR 435 Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 Turner v Sawdon [1901] 2 KB 653 Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612 Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 Australian Mutual Provident Society v Allan (1978) 52 ALJR 407 Narich Pty Ltd v Commissioner of Pay-Roll Tax (1983) 2 NSWLR 597 Trident General Insurance Co Limited v McNiece Bros Proprietary Limited (1988) 165 CLR 107 Accident Compensation Commission v Odco Pty Ltd (1990) 64 ALJR 606 Forstaff Pty Limited (First Plaintiff) Forstaff Logistics Pty Limited (Second Plaintiff) Forstaff Warehouse Personnel Pty Limited (Third Plaintiff) Forstaff Hospitality Pty Limited (Fourth Plaintiff) Forstaff Gosford Pty Limited (Fifth Plaintiff) PARTIES : Forstaff Engineering Personnel Pty Limited (Sixth Plaintiff) Forstaff Kingsgrove Pty Limited (Seventh Plaintiff) Forstaff Blacktown Pty Limited (Eighth Plaintiff) Forstaff Commercial Personnel Pty Limited (Ninth Plaintiff) Toncarna Pty Limited (Tenth Plaintiff) The Chief Commissioner of State Revenue (Defendant) FILE NUMBER(S) : SC 50095/03 COUNSEL : J T Gleeson SC/M Richmond (for Plaintiffs) M J Kimber SC/I C Latham (for Defendant) SOLICITORS : Corrs Chambers Westgarth (for Plaintiffs) Crown Solicitor's Office (for Defendant)