Reported Decision : (2006) 14 ANZ Insurance Cases 61-682 New South Wales Court of Appeal QBE WORKERS COMPENSATION (NSW) LIMITED v SIMARU PTY LIMITED & ANOR [2005] NSWCA 464 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 23 November 2005 JUDGMENT DATE: 20 December 2005 JUDGMENT OF: Mason P at 1; Santow JA at 37; Campbell AJA at 38 DECISION: Appeal dismissed with costs CATCHWORDS: INSURANCE – occupier liable in negligence – insurer's liability to indemnify – statutory Employment Insurance Policy – whether injured person was a deemed worker – Schedule 1 Cl 5 Workplace Injury Management and Workers Compensation Act 1998 – direct marketing of cookware products – sales arranged at hostesses' homes – salesperson under cl 5 – characterisation of remuneration as a commission – where seller is a registered business – whether incidental to an independent trade or business. (ND) Workers Compensation Act 1926 LEGISLATION CITED: Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Davis v Pioneer Concrete (NSW) Pty Ltd [1976] 1 NSWLR 562 CASES CITED: Drielsma v Manifold [1894] 3 Ch 100 Humberstone v Northern Timber Mills (1949) 79 CLR 389 Turner v Stewardson [1962] NSWR 137 QBE WORKERS COMPENSATION (NSW) LIMITED PARTIES: SIMARU PTY LIMITED t/as BESSEMER SALES QBE MERCANTILE MUTUAL FILE NUMBER(S): CA 40712/2004 Appellant: K Andrews COUNSEL: 1st Respondent: M Christie/ M Izzo 2nd Respondent: J McIntyre SC/ D Morgan Appellant: Gillis Delaney Brown SOLICITORS: 1st Respondent: Henderson Taylor Workplace Lawyers 2nd Respondent: Abbott Tout LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 8221/02 LOWER COURT JUDICIAL OFFICER: O'Toole DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40712/2004 DC 8221/2002 MASON P SANTOW JA CAMPBELL AJA Tuesday 20 December 2005 QBE WORKERS COMPENSATION (NSW) LIMITED v SIMARU PTY LTD t/as BESSEMER SALES & Anor BACKGROUND The first respondent, Bessemer Sales, is an organisation engaged in the direct marketing of cookware products. The plaintiff at first instance, Mrs Rita Santelli, was injured as a result of Bessemer's negligence when she went to its premises to pay an account and pick up goods relating to a sale that she had arranged. The appellant, QBE Workers Compensation, was liable to indemnify Bessemer if the plaintiff were a "deemed worker" of Bessemer under the statutory Employer's Insurance Policy issued to Bessemer. At first instance, the trial judge found it unnecessary to decide whether the plaintiff was a worker as defined by s4 of the Workplace Injury Management and Workers Compensation Act 1998. Her Honour held that, if the plaintiff were not a worker, she was deemed to be a worker by the operation of the Act, relying on the extensive direct and indirect control exerted by Bessemer over the plaintiff's work, the formal documents used by the plaintiff in her sales work and Bessemer's "direct selling" through the plaintiff in hostesses' homes. In the Court of Appeal, the appellant insurer submitted the plaintiff was neither a worker nor a deemed worker of Bessemer and therefore that the public liability insurance policy responded in these circumstances, not Employer's Insurance Policy. HELD: Per Mason P (Santow JA and Campbell AJA agreeing) dismissing the appeal: 1. The trial judge correctly had regard to the plaintiff's contractual relationship with Bessemer. 2. Clause 5 Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 does not require proof of a contract to perform any work. It is engaged if and when a salesperson is paid wholly or partly by commission. 3. The plaintiff's activities were those of a salesperson of Bessemer Products: she promoted the products, recorded sales, collected payment and attended to delivery. 4. The plaintiff's remuneration by way of mark-up was properly characterised by the trial judge as a commission. The changes to the plaintiff's remuneration after 1 July 2000 did not alter the substance of the plaintiff's remuneration arrangement. The formal interposition of the plaintiff as a purchaser who on-sold the products does not preclude the mark-up being described as a commission. 5. Even if the plaintiff was not a salesperson, her managerial functions that generated an additional right to commission were sufficient to fall under cl 5. 6. The plaintiff did not fall under the exception in cl 5 for a commission received incidental to a trade or business. Rather, the plaintiff registered herself as a business at Bessemer's bidding to conduct selling work exclusively for Bessemer; she was not conducting an independent trade or business. ORDERS: Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40712/2004 DC 8221/2002 MASON P SANTOW JA CAMPBELL AJA Tuesday 20 December 2005 QBE WORKERS COMPENSATION (NSW) LIMITED v SIMARU PTY LTD t/as BESSEMER SALES & Anor JUDGMENT 1 MASON P: This is a dispute between two insurers as to whether a person injured in consequence of an occupier's negligence was a "deemed worker" of the occupier. If she was, then the workers compensation insurer is obliged to indemnify the occupier. If not, it is the public liability insurer's policy that responds. 2 The appeal arises out of proceedings in the District Court brought by Mrs Rita Santelli (the plaintiff) against the occupier, Simaru Pty Ltd t/as Bessemer Sales, the first respondent in this Court. The claim between plaintiff and defendant was compromised, with the concurrence of the two insurers. The plaintiff recovered a verdict for $19,000 plus costs. The proceedings continued on two cross-claims issued by the defendant in the alternative against the insurers. 3 The workers compensation insurer is the appellant, QBE Workers Compensation (NSW) Limited. Its statutory Employer's Insurance Policy was issued to Bessemer. Cover extended to indemnity against liability to pay compensation to any person "who is a worker of the Employer" and "any other amount that the Employer becomes liable to pay independently of the Act". "Worker" was defined as in the Workers Compensation Act 1987, including the extended meaning given by Schedule 1 (Deemed employment of Workers). In 1998 this Schedule was transferred to the Workplace Injury Management and Workers Compensation Act 1998, an enactment that is to be read with the 1987 Act (see s2A of the 1987 Act). 4 QBE Mercantile Mutual, the second respondent, was Bessemer's insurer with respect to public liability, but on terms that exempted it if cover existed under the Employer's Insurance Policy. 5 The appellant's submission and Bessemer's preferred position was that the public liability policy responded, the plaintiff being neither a worker nor a deemed worker. 6 O'Toole DCJ found it unnecessary to decide whether the plaintiff was a worker as defined by s4 of the 1998 Act (the applicable legislation on 11 April 2001, the date of the accident). Her Honour was persuaded that, if the plaintiff were not a worker, she was deemed to be a worker by the operation of the Act. Bessemer succeeded on its cross-claim against the appellant on this basis. 7 Her Honour's judgment contains detailed findings as to the relationship between the plaintiff and Bessemer. Regrettably, the reasons stop short of applying those findings at the critical stage of relating them to the two clauses in Schedule 1 invoked by the second respondent. These significant omissions (see Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443-4) figured strongly in the successful argument for leave before the Court, differently constituted. This makes it all the more surprising that absence of reasons was not included as a ground of appeal when the notice of appeal was filed. The appellant sought to plug the gap at the hearing and neither respondent raised any objection on this account. 8 This said, the preferred position of all parties was that this Court should itself apply the findings of primary fact to the statutory issues. It is possible to do so, thereby avoiding the evil of a new trial. The evidence of the plaintiff was barely challenged at trial and certainly uncontradicted by any evidence from the management of Bessemer Sales. The facts as found were not in issue in the appeal. 9 Bessemer Sales is a substantial organisation engaged in the direct marketing of cookware products. Its head office is at Beverly Hills in this State. 10 Marketing is arranged by co-ordinated teams of highly motived sales people (most if not all of whom are women). There are teams or units operating in at least New South Wales, Queensland, South Australia and Western Australia under the guidance of managers who in turn are appointed from the ranks of successful operators. The plaintiff held both positions at the relevant time, being separately remunerated for each role. 11 Bessemer Sales conducted its "direct selling" business to its customers through operators referred to as "Bessemer Agents" (until the introduction of GST on 1 July 2000). Thereafter these persons were generally called "distributors", with Bessemer using quotation marks in its literature. In light of the evidence, this nomenclature was effectively an admission that little had changed in the marketing arrangements. 12 The key findings of her Honour were: 15. At relevant times Bessemer's premises included a warehouse where Bessemer stored, assembled and/or packaged its products and an office from which Bessemer operated its "direct selling" business to its customers through its Agents. Bessemer's Agents collected Bessemer's products from its premises and delivered its customers' payments for those products to its premises. 16. …. The plaintiff paid Bessemer cash for a Bessemer "starting kit", …. Bessemer designated the plaintiff its Agent and allocated her its "Distributor Number 19413" . 17. Intermittently thereafter, the plaintiff persuaded a female "hostess" to arrange a "party" of the hostess's female "guests" at the hostess's home…. The plaintiff commenced each party by announcing a possible "gift" for the hostess. The plaintiff explained that if the hostess and guests were to order Bessemer products for an aggregate retail price exceeding the sum specified by Bessemer the hostess would be permitted to purchase a specific Bessemer product for a price lower than Bessemer's retail price for that product. Utilising the starter kit and Bessemer's products and documents, the plaintiff persuaded the hostess and the guests to order Bessemer's products. 18. At the conclusion of each party the plaintiff recorded in duplicate on a Bessemer order form the name of the party's hostess, the name of each guest who had ordered a Bessemer product/s, any "gift" the hostess was permitted to purchase and its discounted price, each Bessemer product that the hostess and/or the guests had ordered, a description of each product and the retail price of each product. The plaintiff announced and recorded on the order form the "closing date" on which she intended to convey the orders to Bessemer. The plaintiff nominated a "delivery date" on the order form and delivered the order form to Bessemer. Usually, the plaintiff notified Bessemer on the order form that she intended to "pick up" the products from Bessemer's premises. 19. Prior to the delivery date the plaintiff telephoned Bessemer and asked whether all products and any "gift" listed on the order form were available. When Bessemer confirmed that the products and any "gift" were available, the plaintiff telephoned the hostess of the party recorded on the order form. Usually the plaintiff said: "I [have] got my delivery ready to come to you" and asked the hostess: "Are you ready with the money?" or "Have all your guests paid you in cash"? Sometimes the hostess replied: "Yes you can come any time". Sometimes the hostess said: "Give me another couple of days because I haven't collected the money from all the [guests] that were there that day of the party". 20. When the hostess had collected the aggregate retail price of the Bessemer products that she and her guests had ordered during their party, the plaintiff attended Bessemer's premises. Bessemer's clerk handed the plaintiff a parcel and an invoice in the form or to the effect of exhibit 5. The plaintiff conveyed the parcel to her home in her motor vehicle. She opened the parcel, compared its content with the products described on the order form, on the invoice and on Bessemer's price list, and scrutinised each product for visible defects. When the plaintiff was satisfied with the products that she had collected from Bessemer, she delivered the products and any "gift" to the hostess named in the order form. The plaintiff collected the cash price of any "gift" and the aggregate retail cash price of the products from the hostess. The plaintiff deducted her commission of twenty-four per cent of the retail price of the products from the cash that she had collected from the hostess. The plaintiff drove to Bessemer's premises and presented the net cash sum, specified in the order form and in the invoice, to Bessemer's clerk. The clerk stamped the invoice: "paid in full". 21. Bessemer warranted its products against patent and latent defects. If the plaintiff discovered a defect before delivering a product to a hostess, the plaintiff returned the product to Bessemer and Bessemer reversed its invoice to the plaintiff for the product. If the hostess or a guest had paid for a defective product, the plaintiff retrieved and returned the product to Bessemer's premises. Bessemer refunded, through the plaintiff, the purchase price of the defective product. 22. If, within thirty days of the closing date on an order form, a guest decided against purchasing a Bessemer product that she had ordered, the plaintiff could retrieve the product and could return the product to Bessemer. Bessemer credited or refunded the plaintiff with the product's net purchase price minus Bessemer's handling and/or delivery fee for the product. … 24. Between October 1999 and 11 April 2001, the plaintiff continued her usual work for Bessemer as its Agent, utilising Bessemer's format documents that she had purchased from Bessemer. The plaintiff persuaded hostesses to arrange parties. The plaintiff attended the parties and persuaded hostesses and guests to order Bessemer's products. The plaintiff ordered "gifts" for hostesses and Bessemer's products for hostesses and guests. The plaintiff collected the "gifts" and the products from Bessemer and delivered them to the hostesses. The plaintiff deducted her commission of twenty-four per cent, specified on Bessemer's order forms and invoices, from the cash that she collected from the hostesses and delivered the net sums to Bessemer's premises. 25. About March 2000, Bessemer requested the plaintiff to register a business name. … On 6 April 2000 the plaintiff's given name and surname were registered as her business name. 26. About May 2000, Bessemer published and distributed issue number 8 of its "Bessemer News". Relevantly, Mr McLean's "Bessemer GST News" on page 1 of exhibit 1 explains: "A good deal of management time and expense has been invested over the last few months in defining system changes that will make the GST implementation smooth and less complicated for [Bessemer's] agents and managers. [Bessemer has] also spent time with the industry association and [Bessemer's] changes are in line with other members of the direct selling industry. This will be the first of a number of pre-GST newsletters that will attempt to answer some concerns expressed to management about the New Tax System. You will see that [Bessemer's] agents will not be disadvantaged by the changes. In fact with reductions in income tax with the introduction of GST, [Bessemer's agents] should be better off. How will the new tax system effect [sic] the Bessemer Agent after July 1? Most Bessemer Agents will see very little change in the way they conduct their business. Managers and Group Managers however, will be required to obtain an ABN as they are earning overriding commissions … [Bessemer] advises that you should seek your accountants [sic] advice on this issue. After July 1 the current Agency Agreement will become a Distributor's Agreement . Instead of Bessemer retailing to the customer through the agent [as Bessemer does now, Bessemer] will sell to you as 'distributors' and you will then sell to the customer. This is possible with the removal of the wholesale sales tax after July. With the new agreement, a 'distributor' will be retaining a margin, but [will] not [be] earning a commission . It means that 'distributors' not requiring an ABN number will not be subject to the 'Pay As You Go' withholding tax of 48.5% on their income. This is due to the fact that they will now be receiving a discount, and not earning a commission as such. There will be little difference as to how goods are distributed, or the collection of money from the hostess. As changes will need to be made to [Bessemer's] documentation, we will take the opportunity to streamline and simplify our system. [Bessemer] will issue a combined party record and stock requisition that is easier to fill in. Other improvements may include the removal of the 10% Hostess allowance and the provision of free gifts and a sliding scale 'discount' depending on agent sales levels…." 13 In about July 2000 Bessemer arranged for its "distributors", including the plaintiff, to sign an Agreement (Ex 2). Its provisions included: 1. The Distributor may purchase the products of the Company and is authorised to on-sell the Company's products. 2. The company shall, from time to time, advise the Distributor as to the cost of its products. In relation to a supply by the Company of products after 30 June 2000, the cost shall include an amount on account of GST. 3. The Distributor in selling the Company's products on his or her own account shall not do anything that shall cause the reputation of the Company to suffer. 4. The Distributor is in business on his or her own account and acknowledges that he or she: (a) is not an agent, employee or partner of the Company (b) is not entitled under the agreement to a commission but will retain the difference between the purchase price and retail prices (c) is not entitled to statutory employee entitlements from the Company. The Distributor undertakes not to hold himself or herself out to be an agent, employee or partner of the Company. … 6. The Distributor shall order products from the Company using a form acceptable to the Company and pay the purchase price of the product ordered within the terms of the invoice. 7. Title to the Company's products shall pass only upon the Company receiving payment for the ordered products. If payment has not been received within the terms of the invoice, the Company has the right to demand and take legal action for the return of the delivered goods. … 13. This Agreement contains all agreements, understandings, promises and undertakings of and between the parties concerning its subject matter. 14. This Agreement cannot be altered, modified or amended in a manner except by written agreement between the parties. 14 This Agreement was not the sole contractual arrangement between the plaintiff and Bessemer Sales. 15 In the first place, the plaintiff had a concurrent and independent role as a "Manager". She had been appointed to this position as a reward for recruiting 13 Agents and as an inducement to continue working for Bessemer. "Active agents" were encouraged in "Bessemer News" for supporting their manager (CB 67). The plaintiff was paid an "overriding commission" of 3% of each of the 13 Agents' respective sales, on top of the 24% commission/margin payable to her for her own work as an Agent/Distributor. 16 Secondly, there were the contractual arrangements involved in the individual sales arranged by the plaintiff at each party conducted by a "hostess". The plaintiff was injured when she went to Bessemer's premises to pay an account and pick up the goods arising out of a particular sale she had arranged. 17 Judge O'Toole correctly found that she was required to consider the plaintiff's contractual relationship with Bessemer in its totality. On this basis, her Honour concluded that the plaintiff had her business name registered primarily, if not solely, for Bessemer's benefit. The plaintiff paid for the registration of her business name because she intended to retain her position as Bessemer's manager (J37). This business name does not appear to have figured in her role as a "distributor". Everyone dealing with her both as "distributor" and manager would have viewed her as a conduit for access to the "Bessemer Cookware" (cf CB 55). 18 The dispositive findings, none of which were challenged, were as follows: 38. I conclude that on 1 July 2000, Bessemer altered, primarily if not solely for its benefit, its methods of paying its Agents' commission and its Manager's overriding commission. However, as Mr McLean had promised in exhibit 1, exhibit 2 was peripheral to Bessemer's stable contractual arrangements with its respective Agents and Managers, including the plaintiff. The document in the form or to the effect of exhibit 2 that the plaintiff signed and delivered to Bessemer evolved from their written and oral, formal and ad hoc communications over the preceding decade. Between 1 July 2000 and 11 April 2001, the plaintiff's contractual relationship with Bessemer continued to evolve from their written and oral, formal and ad hoc communications. 39. I conclude that on 11 April 2001, notwithstanding paragraphs 13 and 14 of the document that the plaintiff had signed in the terms or to the effect of exhibit 2, a substantial part of her contract with Bessemer was oral. Their contract included oral and written terms and conditions on which exhibit 2 is silent, oral terms and conditions to which exhibit 2 alludes, and oral and written terms and conditions that paragraphs 2, 6, 7, 8, 10, 11, 12 and 15 of exhibit 2 articulate and/or explain. For example, exhibit 2 is silent on the plaintiff's overriding commission, on Bessemer's method of computing her overriding commission and on Bessemer's method of paying her overriding commission. Bessemer's prohibiting the plaintiff from assigning her "right or obligations under" the document that she signed in the terms or to the effect of exhibit 2 probably articulated a central term and condition of their existing contract. 40. I conclude that at all material times, Bessemer exerted extensive direct and indirect control over the plaintiff's work. Bessemer's formal documents from which the plaintiff priced and on which she recorded Bessemer's "gift" to hostesses and hostesses' and guests' orders of Bessemer's products were "acceptable to the Company" (exhibit 2) because Bessemer required the plaintiff's purchasing those documents from Bessemer. Bessemer's "direct selling" through the plaintiff of its domestic products in hostesses' homes enhanced the products and Bessemer's prospects of selling those products in a competitive market. The availability of a hostess in her own home, of guests who could be persuaded by a hostess to attend a party in the hostess's home, and of hostesses and guests who could be persuaded to order Bessemer's products during a party, pre-determined crucial periods in which the plaintiff could work and did work for Bessemer. Any choice that the plaintiff believed she had of her hours of work or of her places of work was illusory. 19 The question at issue is whether these findings support the conclusion that the plaintiff was a deemed worker of Bessemer Sales because she fell within either or both of the following two clauses of Schedule 1: 2. Outworkers and other contractors (1) Where a contract: (a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor's own name, or under a business or firm name) … is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor … 5. Salespersons, canvassers, collectors and others (1) A salesperson, canvasser, collector or other person paid wholly or partly by commission is, for the purposes of this Act, taken to be a worker in the employment of the person by whom the commission is payable, unless the commission is received for or in connection with work incidental to a trade or business regularly carried on by the salesperson, canvasser, collector or other person or by a firm of which he or she is a member … 20 These provisions can be traced back to s6 of the Workers Compensation Act 1926. 21 The main submission of the appellant, supported by the first respondent, was directed at the possibility that the plaintiff fell within clause 2. It was accepted that the clause extended beyond persons who are "workers" because they are employees. However, the principal submission was that the facts did not show that the plaintiff had been subject to a "contract … to perform any work". The appellant contended that the arrangement left the plaintiff entirely free to decide whether or not to do anything in the nature of work for Bessemer Sales. The judge's findings at J39 appear to contradict this forced and fragmented analysis of the true situation. The submission also needed to grapple with the second respondent's riposte that, at the time of her injury, the plaintiff was actually performing obligations in consequence of the particular contract entered into when she had procured the purchase of goods that she was picking up from Bessemer's premises (see Davis v Pioneer Concrete (NSW) Pty Ltd [1976] 1 NSWLR 562). There is much force in the second respondent's submission that the plaintiff was performing work necessitated by this contract when she was injured. 22 It is unnecessary to resolve this issue. 23 In my view, the primary facts show that clause 5 was clearly engaged in the circumstances. 24 The plaintiff was on any account a "salesperson… or other person paid wholly or partly by commission". 25 Clause 5 does not require proof of a contract to perform any work. It is engaged if and when the salesperson etc is paid wholly or partly by commission. 26 The plaintiff's activities in connection with a hostess party were undoubtedly those of a salesperson of Bessemer products, both before and after the 1 July 2000 changes. She promoted the products, recorded the sales, collected payment and attended to delivery. 27 In my view, her remuneration by way of 24% mark-up (to use a neutral phrase) was correctly characterised as a commission by the primary judge. Assumption of the label "distributor", the terms of cl 4(b) of Ex 2 and the reference in "Bessemer News" to "receiving a discount, and not earning a commission as such" did not mask the fact that nothing had really changed, so far as the intermediary role of the plaintiff as between Bessemer Sales and individual purchasers. Bessemer retained title to its goods until payment was received (Ex 2, cl 7) and this occurred when the plaintiff picked up the goods upon paying for them. She would then deliver them to the end-purchaser. Bessemer would accept the return of any defective goods and reverse the intermediate paperwork (CB 39). 28 The appellant and first respondent submitted that it was impossible to engage clause 5 in the circumstances, because the plaintiff's relationship with Bessemer Sales after 1 July 2000 was solely that of a purchaser of goods who onsold them to the women who placed orders at a hostess party. I have very real doubts as to whether this is a proper description of the particular sale arrangements when the totality of the facts is borne in mind. 29 But even if the outcome of a successful hostess party was a chain of contracts of sale (one between Bessemer Sales and the plaintiff, the other between the plaintiff and the individual purchaser), the plaintiff's role as a go-between remained unchanged. This was the clear message of the "Bessemer News" extract quoted above, supported by the findings as to the unchanged practice as regards the selling role of the plaintiff. She continued to promote, secure and facilitate the sale of goods from Bessemer Sales to the end-customer. 30 The critical issue is whether the plaintiff's remuneration after 1 July 2000 still merited the description of "commission" in the context of the legislation. Exhibit 2 endeavoured to put a different label on the remuneration arrangement (see cl 4(b)), but it did not alter the substance of the entitlement that ensued if and when sales were effected through the plaintiff. The plaintiff still viewed her remuneration as commission (CB 26). I see no reason why the formal interposition of the plaintiff as a purchaser who on-sold (if this is what truly happened) precluded the 24% margin from being described as a commission. It remained a means of calculating remuneration on a piece-work basis for services provided in an intermediary capacity. Cf Drielsma v Manifold [1894] 3 Ch 100. 31 Furthermore, the "overriding commission" payable in relation to the plaintiff's status as a Manager was sufficient to render her a deemed-worker at time of accident. I infer that her "managerial" functions involved encouraging her recruited cohort of agents/distributors. Her remuneration on this account stemmed from their sales activities under her oversight. Even if the plaintiff was not herself a "salesperson" in that regard, it is to be remembered that cl 5 extends to canvassers, collectors and other persons. The managerial role was sufficiently of the same genus as to fall within the lastmentioned category. 32 The second submission advanced against the conclusion that clause 5 applied invoked to the exception "unless the commission is received for or in connection with work incidental to a trade or business regularly carried on by the salesperson, canvasser, collector or other person or by a firm of which he or she is a member". 33 This provision closely tracks the parenthetical clause in cl 2, "(not being work incidental to a trade or business regularly carried on by the contractor in the contractor's own name, or under a business or firm name)". 34 The leading case expounding these exclusions is Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 401-2 (Dixon J). 35 The plaintiff did not fall within this exception. She worked for Bessemer without having any independent trade or business. And the work that generated commission was certainly not incidental to whatever business she carried on (see Turner v Stewardson [1962] NSWR 137 at 140; Davis at 575-6). This conclusion is only strengthened by reference to the fact that the "business name" the plaintiff registered was "MRS RITA SANTELLI". She did this at Bessemer's bidding, while continuing to use Bessemer advertising and ordering material in the selling work that she did exclusively for Bessemer in the manner set out in the judgment below. 36 The appeal should be dismissed with costs. 37 SANTOW JA: I agree with Mason P. 38 CAMPBELL AJA: I agree with Mason P. ********** 27/01/2006 - - Paragraph(s) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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