Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 163 CLR 1 (5 June 1987)

HIGH COURT OF AUSTRALIA

BABANIARIS v. LUTONY FASHIONS PROPRIETARY LIMITED [1987] HCA 19; (1987) 163 CLR 1
F.C. 87/021

Workers' Compensation (Vict)

High Court of Australia
Mason(1), Wilson(2), Brennan(3), Deane(3) and Dawson(2) JJ.

CATCHWORDS

Workers' Compensation (Vict.) - Exception of outworkers from definition of worker - Whether independent contractors excepted - Workers Compensation Act 1958 (Vict.), ss. 3(1) "worker", "outworker", (6), 5.

HEARING

1987, February 4, 5; June 5. 5:6:1987
APPEAL from the Supreme Court of Victoria.

DECISION

MASON J.: This is an appeal by a machinist and dressmaker from an order made by the Full Court of the Supreme Court of Victoria allowing, with costs, an appeal by the respondent from a decision of the Workers' Compensation Board of Victoria holding that the appellant was disentitled, by reason of her being an "Outworker", to compensation under the Workers Compensation Act 1958 (Vict.) (the "Act").

2. Section 5 of the Act, which is its essential provision, imposes on employers a liability to pay compensation in respect of any personal injury, arising out of or in the course of the employment, caused to a worker. The term "Worker" is defined by s.3, unless inconsistent with the context or subject-matter in these terms:

"'Worker' does not include an outworker; but
save as aforesaid means any person (including a
domestic servant) who has entered into or works
under a contract of service or apprenticeship or
otherwise with an employer whether by way of manual
labour clerical work or otherwise and whether the
contract is expressed or implied is oral or in
writing."

3. The same section defines the term "Outworker", unless inconsistent with the context or subject-matter as:

"'Outworker' means a person to whom articles or
materials are given out to be made up cleaned
washed altered ornamented finished or repaired or
adapted for sale in his own home or in other
premises not under the control or management of the
person who gave out the materials or articles."

4. As the term "Outworker" is not used elsewhere in the Act, the purpose of the definition is to identify the category of persons who are to be excluded from the definition of "Worker", notwithstanding that the latter definition, subject to the exclusion of "Outworker", goes on to include as a worker any person who is engaged under a contract of service.

5. The definition of "Outworker", which was taken from the Workmen's Compensation Act 1906 (U.K.) is the same as that contained in the Workers' Compensation Act 1914 (Vict.) which likewise excluded the outworker from the statutory definition of "Worker". The definition of "Worker" in the Act of 1914 began by excluding certain categories of employees as well as an outworker and, subject to those exclusions, contained a general definition which is the same as that contained in the present definition of "Worker".

6. By a series of amendments to the Act of 1914 commencing in 1922 certain independent contractors were deemed to be working under contracts of service with an employer. Section 3(6) of the Act is a provision of this kind. It is in these terms:

"Notwithstanding anything in this Act or any law
where any person (in this sub-section referred to as
'the principal') in the course of and for the
purposes of his trade or business enters into a
contract with any other person (in this sub-section
referred to as the 'contractor') -

(a) under or by which the contractor agrees to
perform any work not being work incidental to
a trade or business regularly carried on by
the contractor in his own name or under a
firm or business name; and

(b) in the performance of which the contractor
does not either sublet the contract or employ
workers or although employing workers
actually performs some part of the work
himself -

then for the purposes of this Act the contractor
shall be deemed to be working under a contract of
service with an employer and the principal shall be
deemed to be that employer."

7. The appellant applied to the Board for compensation in respect of what she described as "Production Aggravation and Acceleration of injury" to her right wrist and hand. The respondent, by its answer, denied that the appellant was a worker within the meaning of the Act.

8. After hearing evidence and submissions the Board made an award in favour of the appellant for weekly payments of compensation for total incapacity from June 1982 to the date of hearing and thereafter to continue in accordance with law, and for payment by the respondent of reasonable medical and like expenses and costs. The Board then stated a case for the consideration of the Full Court, pursuant to s.56 of the Act. The case recites the findings of fact made by the Board.

9. According to these findings, the respondent carried on business as a garment manufacturer at its own premises and by giving out pieces of garments to be made up or finished by persons in their own homes. The respondent engaged the appellant to perform sewing work in her own home on partly manufactured garments supplied by the respondent. The appellant carried out this work from January 1981 to June 1982, using her own sewing machine operated by electric power for which she paid. There was no supervision or control by the respondent or anyone on its behalf of any aspect of the performance of the appellant's work. Nor did the respondent reserve any right to exercise such supervision or control. The respondent paid the appellant on a piecework basis, the weekly payment varying between $90 and $450 approximately, and made ex gratia payments to the appellant of holiday pay for the Christmas vacation and public holidays at a rate equivalent to the rate paid to employees at its factory. Tax instalments were deducted from all payments made. The respondent also paid termination pay to the appellant on termination of their arrangement. The appellant did not carry out any work during the period of the arrangement for any person other than the respondent.

10. The Board made the following findings, at all times material:

(i) The appellant was performing work for the respondent
pursuant to a contract for services made between them
and was an independent contractor.

(ii) The contract was entered into by the respondent in the
course of and for the purposes of its trade or
business.

(iii) The contract was one under or by which the appellant
agreed to perform work.

(iv) The work to be performed by the appellant was not work
incidental to a trade or business carried out by the
appellant in her own name or under a firm or business
name.

(v) In the performance of the work the appellant did not
either sublet the contract or employ workers.

In consequence of these findings the Board concluded that the appellant was deemed to be working under a contract of service with an employer and the respondent was deemed to be that employer.

11. The questions of law presented by the case stated were:

1. Upon the facts found by the Board was it open to the
Board to determine that the appellant was working
pursuant to a contract for services for the respondent?

2. Was it open to that Board to find upon the evidence that
the appellant was working pursuant to a contract for
services for the respondent?

3. Upon the facts found by the Board was the Board
compelled to determine:

(a) That the appellant was an "Outworker" within the
meaning of that word as defined by s.3(1) of the
Act?

(b) That the appellant was, by reason of her being an
"Outworker", disentitled to compensation under the
Act?

4. Was the Board compelled to find upon the evidence:

(a) That the appellant was an "Outworker" within the
meaning of that word as defined by s.3(1) of the
Act?

(b) That the appellant was, by reason of her being an
"Outworker" disentitled to compensation under the
Act?

12. In the Full Court the case took a rather different turn. Before the Board there was no challenge to the correctness of its much earlier decision in Little v. Levin Cuttings Pty. Ltd. (1953) 3 WCBD (Vict.) 71, that the class of "Outworker" under the Act consisted of persons working under a contract of service. According to the reasoning in Little, the exclusion of "Outworker" from the definition of "Worker" therefore did not touch an independent contractor who was brought within the class of "Worker" through the medium of s.3(6). The Board held in that case that the applicant, who sorted waste material at her home as an independent contractor and fell within s.3(6), was a worker, and entitled to compensation. There being no challenge to the correctness of Little, the Board applied that decision in the present case. However, in the Full Court Mr Barnard Q.C., for the respondent contended that Little was wrongly decided and that the definition of "Outworker" comprehended independent contractors. The Full Court (Murray and Brooking JJ., with Nicholson J. dissenting) accepted this submission. In the result the Court answered the questions asked in the case stated:

1. Yes.

2. The Court does not see fit to answer this question.

3. (a) Yes.
(b) Yes.

4. (a) The Court does not see fit to answer this question.
(b) The Court does not see fit to answer this question.

The appellant was ordered to pay the respondent's costs and certificates were granted pursuant to the Appeal Costs Fund Act 1964 (Vict.).

13. In her appeal to this Court the appellant submits that the exclusion of an "Outworker" from the statutory definition of "Worker" is confined to an outworker engaged under a contract of service. The appellant seeks to support this interpretation by reference to the rule of construction that a Workers' Compensation statute, being remedial, should be construed beneficially, so that where it is susceptible of two different interpretations that which is favourable to the worker should be preferred: Wilson v. Wilson's Tile Works Pty. Ltd. (1960) 104 CLR 328, at p 335. The appellant then points to the fact that all the other exclusions from the definition of "Worker" in the Act of 1914 related to persons engaged under contracts of service, the definition of "Outworker" then being the same as it is now. This circumstance, so it is said, lends colour to the suggestion that by excluding "Outworker" Parliament also intended to exclude a person working under a contract of service, there being no need to exclude a person working as an independent contractor.

14. This argument has some force because the definition of "Worker" then meant, as it does now, subject to the exclusions, any person who has entered into or works under a contract of service or apprenticeship. There was accordingly no need to exclude an outworker who was an independent contractor because he fell outside the general words of the definition. Unfortunately the argument fails to take account of the consequence. The consequence of the appellant's argument, if accepted, would be that the independent contractor who is an outworker would be a "Worker" and entitled to compensation, whereas the employee who is an outworker would not be a "Worker" and would not be entitled to compensation. This is not a rational and sensible outcome, despite its apparent acceptance in Little.

15. One of the problems inherent in the reasoning in Little is that it attributed too much to s.3(6). That provision was designed to overcome the deficiencies in the general words of the definition of "Worker", resulting in the non-eligibility of independent contractors, by deeming an independent contractor in the circumstances mentioned to be working under a contract of service with an employer: see Humberstone v. Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389, at pp 397, 401. But s.3(6) falls short of deeming the independent contractor to be a "Worker" as defined. Accordingly, it does not overcome the exclusion of "Outworker", a matter not dealt with in s.3(6). The opening words of the sub-section, "Notwithstanding anything in this Act", simply do not touch this problem. They are quite consistent with the provision operating to bring an independent contractor into the category of "Worker", subject to the exclusion of "Outworker".

16. And this seems to have been the view taken by the Full Court in Connally v. Victorian Railways Commissioners [1957] VicRp 62; (1957) VR 466 and Hunter v. Chasemore [1959] VicRp 62; (1959) VR 433. These decisions related to another exclusion from the definition of "Worker". From 1914 onwards that definition also excluded a person whose remuneration exceeded a prescribed figure. After the amendment was made in 1946 introducing s.3(6), the prescribed figure was 750 pounds per annum. By the time Connally and Hunter arose for decisions the pecuniary limit had increased to 2,000 pounds per annum. If the interpretation adopted in Little were correct, independent contractors falling within s.3(6) would have been entitled to compensation, without being subject to the pecuniary limit, because on that interpretation, the sub-section would have circumvented that exclusion, just as it circumvented the exclusion of "Outworker". But in the two decisions the Full Court proceeded on the footing that s.3(6) did not have this effect and that an independent contractor falling within s.3(6) was nevertheless subject to the pecuniary limitations. The decisions are therefore inconsistent with the reasoning in Little. And it is scarcely surprising. The Little interpretation would lead to the strange result that the employee working under a contract of service would be subject to the pecuniary limit, whereas the independent contractor falling within s.3(6) would not.

17. It is significant also that in New South Wales the Workers' Compensation Commission did not accept the other strand of reasoning in Little. The definition of worker in s.6 of the Workers' Compensation Act 1926 (N.S.W.) was in terms of "any person who has entered into or works under a contract of service ... but does not include ... an outworker". The definition of outworker was the same as that in the Act. In Selwood v. John Vicars & Co. Ltd. (1965) 39 WCR (NSW) 41, Conybeare J. held that an applicant who was probably not employed under a contract of service fell within the definition of "Outworker". See also Kirkland v. Gilmore (1949) 23 WCR (NSW) 127.

18. However, the appellant contends that the interpretation favoured by the Full Court runs counter to the general policy underlying the course of legislative amendments over the years extending the class of "Worker" eligible for workers' compensation to include independent contractors. However, as I have pointed out, it is significant that s.3(6) is not aimed at the exclusion of "Outworker". Nevertheless it is possible that there may have been a legislative acceptance of the decision in Little or at least an understanding that the effect of the Act was as stated in Little.

19. The force of this possible explanation as a factor for consideration in the process of construction must now be assessed in the light of the principle that the consolidation of a statute is not to be taken as carrying legislative indorsement of judicial decisions on provisions re-enacted in the consolidating statute: Reg. v. Reynhoudt [1962] HCA 23; (1962) 107 CLR 381, at p 388; Bacon v. Salamane [1965] HCA 22; (1965) 112 CLR 85, at pp 90-91; Flaherty v. Girgis (unreported - judgment delivered 14 May 1987). Although I would not regard this principle as necessarily excluding an inference of legislative acceptance of a judicial decision in all circumstances in which re-enactment takes place, the circumstances of the present case do not justify the drawing of such an inference.

20. It follows that in my opinion the interpretation given to the term "Outworker" in Little was incorrect. In reaching this conclusion I reject the notion implicit in the appellant's argument that the competing interpretations of "Outworker" are so evenly balanced or highly disputable that the Court should favour the interpretation adopted in Little.

21. The appellant submits that the Full Court should not have permitted the respondent to challenge the correctness of Little for the first time on the hearing of the case stated. But the questions in the case stated, notably questions 3(a) and (b), are apt to raise the correctness of Little. Moreover, the decision of the Full Court to permit a challenge to Little was unanimous, Mr Hill for the appellant declining an offer of an adjournment. The Full Court's rejection of Little did not have the effect of denying to the appellant the opportunity of presenting evidence on a relevant issue of fact. The respondent's only defence before the Board was that the appellant was working under a contract for services, not under a contract of service. And Mr Hill does not suggest that the appellant was shut out from litigating this issue. The Full Court was therefore correct in allowing the issue to be raised, subject only to a consideration of the doctrine of stare decisis which was raised for the first time in this Court.

22. Whether that doctrine is capable of applying to a decision of the Board depends on the function of the Board under the Act. The Workers' Compensation Act (1937) (Vict.) which established the Board, does not explicitly recognize that the Board has the status of a court. Instead that Act appears to constitute the Board as a specialist tribunal. Its membership comprises a County Court judge as chairman, a nominee of the insurers under the Act and The Victorian Employers' Federation and a nominee of the Melbourne Trades Hall Council (s.2(4), (8)). The chairman alone determines any question of law (s.2(9)). And a determination or award of the Board is not liable to be challenged appealed against reviewed quashed or called in question by any court (s.9(1)), except in so far as a case may be stated on any question of law for the determination of the Full Court of the Supreme Court (s.9(3)). The Board is established by the Act "to act as a tribunal with exclusive jurisdiction to inquire into hear and determine all matters and questions arising out of claims" under the Act (s.4(b)).

23. The effect of these provisions is that the Board's decision is a final and binding determination of the rights and liabilities of the parties with respect to workers' compensation. The Board therefore exercises judicial power: Huddart, Parker & Co. Proprietary Ltd. v. Moorehead [1909] HCA 36; (1909) 8 CLR 330, at p 357; Reg. v. Davison [1954] HCA 46; (1954) 90 CLR 353, at pp 366-367, 373, 380, 387; Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [1970] HCA 8; [1970] HCA 8; (1970) 123 CLR 361, at p 374. Although the doctrine of stare decisis is often said to apply to curial decisions, this statement in reality reflects the broad proposition that the doctrine applies to decisions of tribunals which exercise judicial power in the sense already discussed. The consequence is that the Board may on the ground of stare decisis regard itself as bound to follow its earlier decision on a question of law and, correspondingly, a higher court, for example the Full Court of the Supreme Court, may decline on the same ground to overrule a decision of the Board.

24. At first glance it may seem somewhat surprising that the Full Court of the Supreme Court or this Court should refrain on this ground from overruling a decision of the Board. This is because the Board lacks both the status of a superior court and some of the usual features of an orthodox court in the general court structure of the State. And there is no recorded instance of this Court declining to overrule the decision of such a tribunal when this Court considers that decision to be plainly incorrect. But as a matter of legal theory and principle there can be no doubt that both the Supreme Court and this Court could apply the doctrine of stare decisis to a decision of the Board on the ground that its judicial function is in essential respects the same as that of a court.

25. What then is the strength of the claim that the doctrine requires that the Full Court of the Supreme Court or this Court, in face of a conclusion that the Board's decision in Little is incorrect, should refrain from overruling it? There is certainly strong authority for the view that a decision of long-standing, on the basis of which many persons will have arranged their affairs, should not be lightly disturbed by a superior court: Brownsea Haven Properties Ltd. v. Poole Corporation (1958) Ch 574, at p 604; West Ham Union v. Edmonton Union (1908) AC 1, at pp 4-5; Campbell College, Belfast (Governors) v. Northern Ireland Valuation Commissioner (1964) 1 WLR 912, at p 918; (1964) 2 All ER 705, at p 710; and see generally Reg. v. National Insurance Commissioner; Ex parte Hudson (1972) AC 944. Adherence to this approach promotes the certainty of the law and protects the integrity of acts and transactions which have taken place in the faith of the law as it has been previously declared.

26. There are, however, countervailing considerations which have special force in cases of statutory construction. The fundamental responsibility of a court when it interprets a statute is to give effect to the legislative intention as it is expressed in the statute. If an appellate court, particularly an ultimate appellate court, is convinced that a previous interpretation is plainly erroneous then it cannot allow previous error to stand in the way of declaring the true intent of the statute: Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464, at pp 495, 531; Platz v. Osborne [1943] HCA 39; [1943] HCA 39; (1943) 68 CLR 133, at pp 137, 146-147; Concrete Constructions Pty. Ltd. v. Barnes [1938] HCA 65; (1938) 61 CLR 209, at p 239; Lancashire and Yorkshire Railway Co. v. Mayor, &c., of Borough of Bury (1889) 14 AC 417, at pp 419-420. It is no part of a court's function to perpetuate error and to insist on an interpretation which, it is convinced, does not give effect to the legislative intention: Bourne v. Keane (1919) AC 815, at p 874. And, as Lord Sumner observed in Pate v. Pate (1915) AC 1100, at p 1109, "nor is it in any case sound to misconstrue a statute for fear that in particular instances some hardship may result". The injustice or inconvenience which will result from displacement of a long-standing decision is certainly a very important factor to be considered, but there is no support in principle or authority for the proposition that the Court should persist with a manifestly incorrect interpretation on the ground that it will cause injustice or inconvenience. There is, after all, an obvious injustice in departing from the legislative intention and in most cases a proposed departure from antecedent authority involves competing detriments. The fact that Parliament can, if it so chooses, displace an erroneous interpretation does not provide a justification for the Court's refusal to give effect to the law as declared by Parliament. There are factors that may militate against Parliament taking steps to enact appropriate remedial legislation.

27. Although the use of expressions as "plainly" and "manifestly" erroneous has been criticized in contexts where the question is one on which different minds might reach different conclusions (Queensland v. The Commonwealth [1977] HCA 60; (1977) 139 CLR 585, at p 603), this criticism does not diminish the utility of the expressions in their application to a case in which the question on analysis is capable of but one answer.

28. The matter may stand differently when the correct interpretation of the statute is highly disputable or finely balanced, involving a difficult choice between strongly competing contentions. This is very often the case when a court is called upon to reconsider one of its earlier decisions. Then it is a matter of ensuring that a change in the law does not proceed from mere personal choice and result in injustice or inconvenience, as, for example, by impairing actions and transactions undertaken on the faith of the law as it had been declared previously. In such a situation lack of clarity in the expression of the legislative intention makes it legitimate for the Court to regard the injustice or inconvenience which would flow from overruling the earlier decision as having an influential effect on the outcome.

29. The argument in favour of applying stare decisis is weaker when the earlier decision, the subject of contention, is that of an inferior court or specialist tribunal from which an appeal lies to a superior court. The absence of any ruling on the precise point by the superior court naturally lessens the authority of the decision and makes it much more difficult to say that the long-standing decision has been accepted as an authoritative and definitive statement of the legislative intent. And here the Full Court by its decisions in Connally and Hunter, given within six years of Little, threw a very large question mark around the correctness of the interpretation adopted in that case. Likewise, the New South Wales decision in Selwood indicated that the interpretation was suspect.

30. To conclude in the circumstances of the present case that the Court should not give effect to its conviction that Little was wrongly decided would in my opinion give the doctrine of stare decisis a far-reaching operation with ramifications that may restrict the capacity of appellate courts to correct the law as it has been stated by inferior courts and tribunals.

31. Some of the difficulties inherent in the problem under discussion might be avoided if the Court were to adopt the technique of prospective overruling. See the discussion in National Insurance Commissioner, at pp.1015, 1026. But the matter was not debated in argument and the technique is not without problems. See Devlin, "Judges and Lawmakers", (1976), 39 Modern Law Review 1, at pp.11-12, and at p.542, Nicol, "Prospective Overruling: A New Device for English Courts?"

32. On a different plane the appellant also submits that the Full Court was not entitled to find on the facts that the appellant was an outworker. There is no substance in this submission.

33. It was suggested in argument that the outcome of this appeal, if unfavourable to the appellant, would disappoint the expectations of persons in her position and would amount to a windfall for insurers who had calculated premiums on the footing that Little correctly interpreted the Act. If this suggestion be correct, and we have no means of knowing if it is correct, it is a matter that would merit legislative attention.

34. I would dismiss the appeal.

WILSON AND DAWSON JJ.: This is an appeal from a majority decision of the Full Court of the Supreme Court of Victoria (Murray and Brooking JJ., Nicholson J. dissenting) which answered adversely to the appellant certain questions submitted to it on a case stated by the Workers' Compensation Board ("the Board") pursuant to s.56 of the Workers Compensation Act 1958 (Vict.), as amended ("the Act").

2. The facts of the case as found by the Board were set out in the case stated and are as follows:

(a) At all times material the Respondent engaged
in the trade or business of garment
manufacture.

(b) The Respondent engaged in such trade or
business at premises owned or occupied by it
and situated at 5 Harker Street, Burwood in
the State of Victoria.

(c) Further, the Respondent also engaged in such
trade or business by giving out pieces of
garments of different types to be made up or
finished by persons in their respective homes.

(d) In or about January 1981 the Applicant sought
work as a machinist from the Respondent, such
work to be performed by the Applicant in her
own home.

(e) The Applicant was an experienced machinist and
an expert dressmaker.

(f) An arrangement was reached between the
Applicant and the Respondent for the Applicant
to perform sewing work in her own home for the
Respondent on partly manufactured garments
supplied to her by the Respondent.

(g) The Applicant was supplied with sample
garments to indicate the nature of the work to
be done, with her attention being drawn to any
difficult aspects thereof.

(h) The Applicant carried out activities of the
nature described in paragraphs (c), (d) and
(f) hereof at her home in the period from in
or about January 1981 to June 1982 pursuant to
the arrangement referred to in paragraph (f)
hereof.

(i) The Applicant carried out the activities
previously referred to using a power operated
sewing machine owned and/or supplied by her.
As between herself and the Respondent the
Applicant supplied the electric power to
operate the said machine.

(j) The Applicant determined on what days, for
what hours and at what speed she carried out
such activities. However, at times the
Respondent would ask that particular items be
completed by the Applicant within a nominated
time causing the Applicant to work at a fast
rate.

(k) The items upon which work was to be done by
the Applicant were brought to her home by an
employee of the Respondent.

(l) The items upon which work had been done by the
Applicant were either collected from her home
by the same employee of the Respondent or else
delivered by the Applicant to the Respondent.
It was the duty of the said employee to check
the work done by the Applicant.

(m) There was no supervision or control of the
Applicant carried out by the Respondent or by
anyone on its behalf or sought to be carried
out by the Respondent or by anyone on its
behalf in the actual performance of the work
or indeed of any aspect of the work nor did
the Respondent reserve to itself the right to
exercise any such supervision or control.

(n) The Applicant was paid on a piece-work basis
by the Respondent, the rate varying according
to the item upon which work was done,
particular periods of time being allowed by
the Respondent for items of different kinds.
This rate was negotiable between the Applicant
and the Respondent. The amount paid by the
Respondent to the Applicant varied from week
to week from a minimum of approximately $90.00
to a maximum of approximately $450.00.

(o) The Respondent made ex gratia payments to the
Applicant of holiday pay for the Christmas
break and for Public Holidays at a rate
equivalent to the rate paid by the Respondent
to its employees on the factory floor. The
Respondent also paid termination pay to the
Applicant upon the termination of the
arrangement between them.

(p) It was open to the Applicant to take time off
at any time upon notice to the Respondent.

(q) From the monies paid from time to time by the
Respondent to the Applicant for work performed
by her and in respect of holiday and
termination pay the Respondent made deductions
for income tax. The Respondent did not inform
the Applicant that such deductions would be
made at any time prior to it making the first
payment to her.

(r) The Applicant did not in the period referred
to in paragraph (h) hereof:-

(i) carry out any work for any person
other than the Respondent

(ii) advertise her availability to carry
out any work for any person other
than the Respondent.

(s) At all times material:-

(i) The Applicant was performing work
for the Respondent pursuant to a
contract for services made between
them and was an independent
contractor.

(ii) The contract was entered into by the
Respondent in the course of and for
the purposes of its trade or
business.

(iii) The contract was one under or by
which the Applicant agreed to
perform work.

(iv) The work to be performed by the
Applicant was not work incidental to
a trade or business carried out by
the Applicant in her own name or
under a firm or business name.

(v) In the performance of the work the
Applicant did not either sublet the
contract or employ workers.

(w) By reason of the findings set out herein, the
Applicant was at all times material deemed to
be working under a contract of service with an
employer and the Respondent was deemed to be
that employer.

(x) Within the period referred to in paragraph (h)
hereof and in the course of or arising out of
the work performed by her, the Applicant
suffered personal injury, which injury
resulted in or materially contributed to the
Applicant's incapacity for work.

(y) By reason of the finding set out in paragraphs
(w) and (x) hereof the Applicant was entitled
to compensation under the provisions of
Sections 9 and 26 of the Act.

Consequent on those findings of fact, the Board made an award in favour of the appellant against the respondent for weekly payments of compensation for total incapacity from June 1982 to continue in accordance with law and for payment by the respondent of reasonable medical and like expenses incurred by the appellant and for legal costs.

3. It is implicit in the findings of the Board that at the time the appellant suffered injury, she was, within the meaning of the Act, a worker employed by the respondent and that the injury arose out of or in the course of the employment: see s.5. It is also implicit in those findings that the appellant was a worker notwithstanding that she was an independent contractor. She was an independent contractor because she was performing her work pursuant to a contract for services rather than a contract of service. However, under s.3(6) of the Act a working contractor is deemed, under certain conditions which the Board found to be satisfied, to be working under a contract of service with an employer and the principal is deemed to be the employer. The finding that the appellant was working under a contract of service did not conclude the question whether she was a worker. That question required further consideration in the light of the definitions of "Worker" and "Outworker" in s.3(1) of the Act. Those definitions are as follows:

"'Worker' does not include an outworker; but save
as aforesaid means any person (including a domestic
servant) who has entered into or works under a
contract of service or apprenticeship or otherwise
with an employer whether by way of manual labour
clerical work or otherwise and whether the contract
is expressed or implied is oral or in writing.

'Outworker' means a person to whom articles or
materials are given out to be made up cleaned
washed altered ornamented finished or repaired or
adapted for sale in his own home or in other
premises not under the control or management of the
person who gave out the materials or articles."

4. The Board found it unnecessary to determine whether the appellant was an outworker, although it is apparent that the facts found by it would sustain such a conclusion. The Board found it unnecessary because it followed the reasoning in a previous decision of the Board, Little v. Levin Cuttings Pty. Ltd. (1953) 3 WCBD (Vict.) 71. The essential facts in that case raised the same question as those in the present case. The applicant in Little was held to be an independent contractor within the meaning of s.3(6) and was therefore deemed to have been working under a contract of service with the respondent. That finding led to an award in her favour because, in the view of the Board, "Outworker" in the definition of "Worker" did not include an independent contractor. The term "Outworker", so the Board held, refers to a class of persons who work under a contract of service. In its view, an outworker and an independent contractor within the meaning of s.3(6) fell within mutually exclusive categories. The reasoning was that an independent contractor within s.3(6), having been deemed to be employed under a contract of service and to that extent brought within the definition of "Worker", could not be excluded by the exclusion of outworkers from the definition.

5. It is against that background that it is necessary to consider the questions of law submitted by the Board for the opinion of the Full Court. They are as follows:

1. Upon the facts found by the Board was it open
to the Board to determine that the Applicant
was working pursuant to a Contract for
Services for the Respondent?

2. Was it open to that Board to find upon the
evidence that the Applicant was working
pursuant to a Contract for Services for the
Respondent?

3. Upon the facts found by the Board was the
Board compelled to determine:

(a) That the Applicant was an "outworker"
within the meaning of that word as
defined by Section 3(1) of the Act?

(b) That the Applicant was, by reason of her
being an "outworker", disentitled to
compensation under the Act?

4. Was the Board compelled to find upon the
evidence:

(a) That the Applicant was an "outworker"
within the meaning of that word as
defined by Section 3(1) of the Act?

(b) That the Applicant was, by reason of
her being an "outworker" disentitled to
compensation under the Act?

In the Full Court the contest revolved around the answers which should be given to questions 3 and 4. The respondent conceded that the appellant was a person who satisfied the provisions of s.3(6) of the Act. Consequently, question 1 was answered in the affirmative and the Court did not see fit to answer question 2. It concluded, however, that the Board, upon the facts found by it, was compelled to determine that the applicant was an outworker as defined in s.3(1) and that the applicant was for that reason disentitled to compensation under the Act. Accordingly it answered questions 3(a) and (b) in the affirmative and did not answer question 4.

6. The answers given by the Full Court depended upon the proper construction of the definitions of "Worker" and "Outworker" in s.3(1) of the Act. It may be helpful at the outset to refer shortly to the history of these provisions. In the original statute, the Workers' Compensation Act 1914 (Vict.), the definition of "Worker" excluded a number of categories of employees, including that of an outworker. From time to time the number of exclusions was reduced until, following an amendment in 1972, only the exclusion of an outworker remained. The definition of "Outworker" has survived unchanged since its enactment in 1914. Section 3(6) was introduced by amendment of the Act in 1946 and was designed to extend the provisions of the Act to a very limited class of independent contractor. See Humberstone v. Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389, at pp 397, 401-402.

7. Mr Hill, who appeared for the appellant, advanced as one ground of appeal the admitted fact that the respondent did not attack the decision in Little when the matter was before the Board and that the Full Court erred in allowing the respondent to raise the issue on the hearing of the case stated. We have given anxious consideration to this aspect of the matter but we do not think that the due administration of justice would permit this Court to reverse the decision of the Full Court solely on this ground. We do not fail to recognize that it is of great importance in the conduct of litigation that a litigant should be bound, on appeal, by the manner in which his case has been conducted at first instance: McCormack v. Federal Commissioner of Taxation [1979] HCA 18; [1979] HCA 18; (1979) 143 CLR 284, at p 305; University of Wollongong v. Metwally (No. 2) (1985) 59 ALJR 481, at p 483; [1985] HCA 28; 60 ALR 68, at p 71. But regard must be had to the circumstances of the case. The question whether to allow the issue to be raised is discussed in the judgments of the Full Court and it is apparent that the members of the Court were alert to the important principle that was involved. It is observed that in its answer to the claim for compensation the respondent denied that the appellant was a worker. Furthermore, questions 3(a) and (b) in the case stated are wide enough to raise an issue as to whether the decision in Little was correct. More importantly, Mr Hill was invited by the Full Court to suggest any way in which the answer to the argument that the definition of "Outworker" applied to those who fell within s.3(6) could have been affected by evidence or any way in which the conduct of the appellant's case before the Board might have been affected if Little had then been challenged. He was unable to do so. He was offered an adjournment but did not avail himself of the offer. It was a matter calling for the exercise of the Full Court's discretion. The Court was unanimous in its decision in this regard and in our respectful opinion there is no ground upon which this Court would be justified in interfering with it: see Coulton v. Holcombe [1986] HCA 33; (1986) 60 ALJR 470, at pp 472-473; [1986] HCA 33; 65 ALR 656, at pp 660-661.

8. Mr Hill argued a further point of principle, namely, that even if the Full Court was correct in its construction of the Act the findings made by the Board were not sufficient to sustain a conclusion that the appellant fell within the definition of "Outworker". But, as may be seen from the findings we have set out, the Board found, inter alia, that the appellant was an experienced machinist and an expert dressmaker, that from January 1981 to June 1982 she performed sewing work for the respondent on partly manufactured garments supplied to her by the respondent, that she carried out these activities in her own home using her own machine, and that she was not under the supervision or control of the respondent or anyone on its behalf. We have selected only some of the more relevant findings, but sufficient appears, in our opinion, to identify the appellant as a "person to whom articles or materials are given out to be made up ... (or) finished ... in (her) own home" and, if it matters, in circumstances where she was not under the control or management of the person who gave out the materials or articles. The Full Court was entitled to conclude that, as a matter of law, having regard to the findings of the Board, the appellant was an outworker within the meaning of the Act.

9. It remains to consider whether that conclusion denied the appellant's entitlement to compensation under the Act. If Little was decided correctly, her entitlement would not be affected. The operation of s.3(6), deeming her to be working under a contract of service, would suffice. But in our opinion the Act is perfectly clear. Section 3(6) does not deem a person falling within its terms to be a worker. It does no more than deem the person to be working under a contract of service. That deemed status does not entitle the person to compensation under the Act. The person must still be shown to be a worker. The definition of "Worker" is quite explicit. It means, inter alia, any person who has entered into or works under a contract of service (and that would include any person who is deemed by s.3(6) to be working under a contract of service) but it does not include an outworker. There is nothing in the definition of "Outworker" that would confine it to persons who are working under a genuine, as distinct from a deemed, contract of service. It may be wondered why the legislature saw fit to maintain the exclusion of an outworker from compensation for so long, finally removing it only with the coming into force of the Accident Compensation Act 1985 (Vict.). But it is inconceivable that it would have intended by the enactment of s.3(6) to extend an entitlement to compensation to certain independent contractors who satisfied the description of outworkers while continuing to deny any entitlement to outworkers working under a contract of service.

10. The question finds further elucidation from a consideration of the provisions of the Act dealing with eligibility for compensation after the amendment in 1946. That amendment, as we have said, inserted s.3(6) in the Act. The definition of "Worker" then contained inter alia, in addition to the exclusion of an outworker, the exclusion of a person whose remuneration exceeded 750 pounds a year. A monetary ceiling had always been one of the exclusions contained in the definition of "Worker", with the actual figure being adjusted from time to time. It is instructive to consider the intended impact, if any, of s.3(6) on this aspect of the statutory concept of "Worker". Is it likely that the legislature intended to extend the entitlement to compensation under the Act to the independent contractors described in s.3(6) regardless of their total remuneration while retaining an upper limit on those working under a contract of service? In Hunter v. Chasemore [1959] VicRp 62; (1959) VR 433 the Supreme Court of Victoria was concerned with applying the remuneration exclusion in the definition of "Worker" to a person deemed by s.3(6) to be working under a contract of service. Whilst the precise point which is now in issue was not the subject of decision, there can be no doubt that the Court proceeded on the assumption that the exclusion was relevant. In our opinion, it clearly was. See also Connally v. Victorian Railways Commissioners [1957] VicRp 62; (1957) VR 466, at pp 467, 474. In the same way, for better or worse, the legislature has seen fit until recent times to retain the exclusion of outworkers from those eligible for workers' compensation under the laws of Victoria whether they be actually working under a contract of service or be deemed to be so.

11. We come to this conclusion with reluctance, because of the anachronistic nature of the provision. Unfortunately, we are unable to discern any ambiguity in the Act such as would open the Act to the kind of beneficial construction that is appropriate to a statute dealing with workers' compensation. This is not a case where there is an acknowledged right to compensation which is not to be denied or restricted because of difficulties in fitting the clauses relating to the computation of compensation to the circumstances of the case: see Nash v. Sunshine Porcelain Potteries Ltd. [1959] HCA 7; ; (1959) 101 CLR 353, at p 361 and the cases there cited. Nor is it a case that attracts "the established principle that, where two constructions of a Workers' Compensation Act are possible that which is favourable to the worker should be preferred": per Fullagar J. in Wilson v. Wilson's Tile Works Pty. Ltd. [1960] HCA 63; (1960) 104 CLR 328, at p 335.

12. Mr Hill informed the Court from the Bar table that the decision in Little has been acted on in Victoria in 1953 with the result that so long as an applicant for compensation satisfied the terms of s.3(6), the fact that he might otherwise have been categorized as an outworker has been regarded as irrelevant. Mr Hill added that in reliance upon Little employers would have submitted returns including such persons as workers and insurance premiums would have been assessed and paid accordingly. For these reasons it was submitted that the decision in Little should be allowed to stand even if this Court should conclude it was wrongly decided.

13. This Court is reluctant to depart from long-standing decisions of State courts upon the construction of State statutes if the meaning is doubtful, particularly where those decisions have been acted on in such a way as to affect rights and obligations: Platz v. Osborne [1943] HCA 39; (1943) 68 CLR 133, per Latham C.J. at p 137. See also, in relation to the interpretation of a will, Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464, at pp 495, 531. However, even according judicial status to the decision of the Board in Little and assuming that it has stood for a sufficient length of time, it is a single decision of one tribunal which the Full Court of the relevant State has declined to follow. It cannot, in any event, justify a departure from the plain meaning of the provisions in question. In Hanau v. Ehrlich (1912) AC 39, which was a case in which there was a chain of authorities since 1829, Earl Loreburn L.C. said at p 41:

"If you are to look at the words of this
statute without any previous guidance at all, to my
mind either construction contended for is possible
as a matter of language and pure interpretation of
the meaning of language. But I agree with Vaughan
Williams L.J. that it is not right for even this
House to reopen points of construction upon
ambiguous language which have been settled for a
long period of years; and I advise your Lordships
to decide this case upon that ground. To my mind,
when doubtful words in a statute have for a long
period been decided in a particular sense, we ought
not to reopen the matter if we can help it. The
doctrine 'Interest reipublicae ut sit finis litium'
ought in such a case to apply."

Other maxims - stare decisis and communis error facit jus - have been called in aid of this approach: Craies on Statute Law, 7th ed. (1971), p.154. But one thing about it is clear. It has no application where the meaning of a statute is plain and free from ambiguity. See West Ham Union v. Edmonton Union (1908) AC 1, at pp 4-5; Morgan v. Crawshay (1871) LR 5 HL 304; Hamilton v. Baker (1889) 14 AC 209 and Emmerson v. Maddison (1906) AC 569. If it were otherwise, it would be an invitation to perpetuate an obvious misconstruction of a statute and to disregard the evident intention of the legislature. No line of authority, however longstanding, could justify such a course.

14. The reluctance of courts to depart from long-standing decisions of lower courts appears to be derived in part from the principle of contemporaneous exposition. The principle - contemporanea exposito est optima et fortissima in lege - has a use confined to the construction of ambiguous language in statutes which are sufficiently old for the words to have had a previous different meaning: Campbell College, Belfast (Governors) v. Northern Ireland Valuation Commissioner (1964) 1 WLR 912, at p 941; (1964) 2 All ER 705, at p 727, per Lord Upjohn. This origin of the wider doctrine serves to demonstrate its limits. Some ambiguity or doubt must attend the construction of the statute before the doctrine can have any application.

15. Mr Hill relied on a further argument that the Court should accept the decision in Little as a correct expression of the intention of the legislature because the Act had been amended by Parliament on a number of occasions since 1953 with no attempt to reverse the decision. But in our opinion the argument asks too much of the legislative process, at least in this case. It cannot be accepted. The fact that the definition of "Worker" has been amended in some respects since 1953 does not supply any basis for an inference that the decision in Little received parliamentary approval. The definition of "Outworker" has not been the subject of amendment between 1946 and 1985. Nor have the terms of s.3(6) been effectively varied. Whilst the section was amended in 1978 by the Workers Compensation (Amendment) Act (1978) (Vict.), s.3(1), that amendment was never proclaimed and was subsequently repealed by the Workers Compensation (Share Farmers) Act 1978 (Vict.), s.2(2). Furthermore Fullagar J. responded in forthright terms to a similar argument in Salvation Army (Victoria) Property Trust v. Fern Tree Gully Corporation [1952] HCA 4; (1952) 85 CLR 159, at p 182:

"This is a familiar, but somewhat artificial,
argument. It never carries great weight: indeed
it can seldom be effectively used except as lending
additional support to a view which is already
supported by an independent argument."

See also Reg. v. Reynhoudt [1962] HCA 23; (1962) 107 CLR 381, per Dixon C.J. at p 388 (cf. Taylor J. at p 396 and Owen J. at pp 407-408) and the discussion by Mason ACJ., Wilson and Dawson JJ. in Flaherty v. Girgis (unreported, delivered 14 May 1987).

16. We would dismiss the appeal.

BRENNAN AND DEANE JJ.: Pursuant to the Workers Compensation Act 1958 (Vic.) ("the Act") the Workers Compensation Board stated a case raising questions of law for determination by the Full Court of the Supreme Court. The Board had held, on the facts as it had found them, that the appellant Mrs Babaniaris was entitled to compensation under the Act. The Board found that Mrs Babaniaris had performed sewing work for the respondent company, a garment manufacturer, in her own home on her own machine using her own power and choosing her own times for working. The company supplied her with partly manufactured garments to work on and paid her at piecework rates which varied according to the work to be done. The company also made ex gratia payments to her in respect of holiday and termination pay. The company deducted an amount for income tax from the payments made. The Board found that Mrs Babaniaris' work was performed "pursuant to a contract for services", that she was an independent contractor, that she suffered personal injury resulting in or materially contributing to an incapacity for work and that she suffered that injury "in the course of or arising out of the work performed by her" under the contract for services.

2. A liability to pay compensation under the Act is imposed on an employer when, in any employment, personal injury arising out of or in the course of the employment is caused to "a worker": s.5(1). The term "worker" is defined by s.3(1) of the Act:

" 'Worker' does not include an outworker; but save
as aforesaid means any person (including a
domestic servant) who has entered into or works
under a contract of service or apprenticeship or
otherwise with an employer whether by way of
manual labour clerical work or otherwise and
whether the contract is expressed or implied is
oral or in writing."

This definition is a key provision of the Act for it constitutes the primary control of the extent to which workers' compensation cover is available to persons suffering personal injury arising out of or in the course of their work. It can be traced back through successive consolidations of the Workers Compensation Act of Victoria: through s.3 of the 1951 Act (No.5601), s.3 of the 1928 Act (No.3806) and s.3 of the 1915 Act (No.2750) to s.2 of the 1914 Act (No.2496). Some similarities may be discerned in earlier Victorian legislation (s.37 of the Employers and Employes Act 1890 and s.2 of The Employers' Liability Act 1886) but the basic form of the definition has remained virtually unchanged since 1914 except in the respects next to be mentioned.

3. Originally the definition excluded a number of classes of persons but one by one the exclusions were deleted and cover was extended until, in 1983 when the present claim was made, outworkers remained as the only excluded class. After the 1915 consolidation, the legislature also extended cover to classes of persons who are not within the statutory definition of "worker" by enacting provisions deeming persons within the class intended to be covered "to be working under a contract of service", thus bringing the class within the definition of "worker": see sub-ss.(3),(4), (5) and (6) of s.3. Section 3(6) of the Act was enacted to extend cover in this way:

" (6) Notwithstanding anything in this Act or any
law where any person (in this sub-section referred
to as 'the principal') in the course of and for
the purposes of his trade or business enters into
a contract with any other person (in this
sub-section referred to as the 'contractor') -

(a) under or by which the contractor agrees
to perform any work not being work
incidental to a trade or business
regularly carried on by the contractor in
his own name or under a firm or business
name; and

(b) in the performance of which the
contractor does not either sublet the
contract or employ workers or although
employing workers actually performs some
part of the work himself -

then for the purposes of this Act the contractor
shall be deemed to be working under a contract of
service with an employer and the principal shall
be deemed to be that employer."

4. The Workers' Compensation Act 1946 (No. 5128, s.2(2)) first introduced the statutory predecessor of s.3(6) of the Act. Until then, persons working under a contract for services were not within the definition of "worker". In the present case, the Board formally made the findings which established that Mrs Babaniaris was within the provisions of s.3(6) of the Act. Those formal findings provided the context of the real issue between the parties which was whether she was precluded from being entitled to compensation by reason of coming within the exclusion of an "outworker" from the definition of a "worker". "Outworker" is defined by s.3(1):

" 'Outworker' means a person to whom articles or
materials are given out to be made up cleaned
washed altered ornamented finished or repaired or
adapted for sale in his own home or in other
premises not under the control or management of
the person who gave out the materials or
articles."

5. The scope of the exclusion of "an outworker" was considered in 1953 by the Workers Compensation Board in Little v. Levin Cuttings Pty.Ltd. (1953) 3 WCBD (Vic.) 71. The relevant statutory provisions then in force - contained in the Workers Compensation Act 1951 (No.5601) (the "1951 Act") - were not materially different from those in force in 1983. The chairman of the Board was his Honour Judge Stretton, a Judge with extensive experience in the workers' compensation jurisdiction. His Honour (in whom the power to decide questions of law arising before the Board was reposed by s.80(9) of the 1951 Act) held that the statutory exclusion of "an outworker" was limited to persons who, but for the exclusion, would have been within the definition of "worker". He said (at p.72):

" It was argued for respondent that the
exclusion of an outworker from the definition of
worker was an exclusion of a class of independent
contractor and not of a class of person who works
under a contract of service. This argument is
rejected. The class 'outworker' contemplated by
the Act is a class of person who works under a
contract of service."

Thus the exclusion was held not to extend to persons who, though falling within the literal definition of "outworker", were working under a contract for services. The Board held the applicant in that case to be entitled to compensation, as she was an independent contractor covered by reason of the provisions of s.3(6). That decision could have been reviewed by the Full Court on a case being stated (1951 Act, s.56(3)) but neither party required it. Counsel for the appellant informed us that until the judgment of the Full Court in this case Little's Case was regarded as settling the question. Counsel for the respondent was unable to confirm that information but Little's Case was cited as the relevant authority on the exclusion of "outworkers" by Anderson and Rendit, Workers Compensation (Victoria), 2nd ed. (1966), pp.85,95, and it was applied by the Board in the present case without demur. There is no report of any consideration of Little's Case by the Supreme Court prior to the present case.

6. These circumstances tend to show that the authority of Little's Case has been accepted. That is not surprising, for the Board had "exclusive jurisdiction to inquire into hear and determine all matters and questions arising out of claims under (the Workers Compensation Act 1951)": see s.82 of that Act. So long as the decision stood, it settled in practice what cover the Act gave. For over 30 years, annual premiums must have been assessed on the footing that independent contractors such as Mrs Babaniaris were covered. It must have been a matter of common knowledge among insurers, employers and trade union officials (whose nominees sat on the Board: 1951 Act, s.80(4)) as well as among members of the legal profession who practise in the jurisdiction that independent contractors within s.3(6) were not excluded from cover by reason of the exclusion of "outworker" in the definition of "worker". On the faith of that construction, claims for compensation must have been determined.

7. The findings of the Board in the present case, including the finding that Mrs Babaniaris suffered personal injury while working under a contract for service, brought her claim to compensation within the authority of Little's Case. No challenge was made to the authority or correctness of that case before the Board and the Board accordingly concluded that Mrs Babaniaris was entitled to compensation. When the stated case came before the Full Court, however, that Court by majority (Murray and Brooking JJ., Nicholson J. dissenting) held that, notwithstanding the Board's findings, Mrs Babaniaris was an "outworker" for the purposes of the Act. The Court overruled the decision in Little's Case and answered "yes" to each part of the critical question in the stated case:

" 3. Upon the facts found by the Board was the
Board compelled to determine:

(a) That the Applicant was an 'outworker'
within the meaning of that word as
defined by Section 3(1) of the Act?

(b) That the Applicant was, by reason of
her being an 'outworker', disentitled
to compensation under the Act? "

If this were the first occasion when the underlying issue had arisen for judicial determination, we would be disposed to agree with the answers given. The definition of "outworker" does not on its face apply only to those working under a contract of service and, even if the term be read down to apply only to such persons, s.3(6) deems those who work under a contract for services to work under a contract of service and thus to be within the scope of the exclusion. Further, although s.3(6) would bring certain independent contractors within the latter part of the definition of "worker", the latter part is expressed to operate "save as aforesaid", that is, the latter part would not bring within the definition of "worker" persons who are excluded as outworkers by the former part of the definition. But this is not the first occasion when the issue has so arisen. When it arose in Little's Case, it was not answered by construing particular words in the definition of "worker" and in s.3(6); it appears to have been answered by looking to the legislative practice of extending cover class by class, either by deleting an exclusion in the definition of "worker" or by adding a provision defining the class to be newly covered. Judge Stretton treated the 1946 amendment as extending cover to independent contractors within s.3(6) and so construed the definition of outworker as to except only those who would otherwise have been within the definition of worker. The exclusion of "outworker" thus construed did not affect the class to whom cover was extended by s.3(6).

8. Though we are not disposed to agree with Judge Stretton's construction, we are quite unable to "say positively that it was wrong and productive of inconvenience". We have taken the quoted phrase from the speech of Lord Buckmaster in Bourne v. Keane (1919) AC 815, at p 874, where his Lordship collected three principles relating to acceptance of decisions which have been followed for a long time:

" Firstly, the construction of a statute of
doubtful meaning, once laid down and accepted for
a long period of time, ought not to be altered
unless your Lordships could say positively that
it was wrong and productive of inconvenience;

Secondly, that decisions upon which title to
property depends, or which by establishing
principles of construction or otherwise form the
basis of contracts, ought to receive the same
protection;

Thirdly, decisions that affect the general
conduct of affairs, so that their alteration
would mean that taxes had been unlawfully
imposed, or exemption unlawfully obtained,
payments needlessly made, or the position of the
public materially affected, ought in the same way
to continue."

The orthodoxy of non-intervention even by a supreme appellate court to reopen the construction of ambiguous statutes was accepted by the House of Lords in Hanau v. Ehrlich (1912) AC 39 where Earl Loreburn L.C. said (at p 41):

" ... I agree with Vaughan Williams L.J. that it is
not right for even this House to reopen points of
construction upon ambiguous language which have
been settled for a long period of years; and I
advise your Lordships to decide this case upon
that ground. To my mind, when doubtful words in
a statute have for a long period been decided in
a particular sense, we ought not to reopen the
matter if we can help it. The doctrine 'Interest
reipublicae ut sit finis litium' ought in such a
case to apply."

The ground of this decision, according to Craies on Statute Law, 7th ed. (1971), p.154, is the axiom stare decisis. That axiom attributes authority to judicial precedents in order "to keep the scale of justice steady, and not liable to waver with every new judge's opinion", the first decision being a solemn declaration that "what before was uncertain and perhaps indifferent, is now become a permanent rule": Broom's Legal Maxims, 10th ed. (1939), p.90. However, when a court is faced with an earlier decision of long standing construing an ambiguous statute and the earlier decision is not binding upon it, the court must decide where the balance of advantage lies between intervening and not intervening to re-examine and perhaps to correct the earlier decision, even when the problem arises before a court of final instance with respect to one of its own decisions: Geelong Harbour Trust Commissioners v. Gibbs Bright & Co. [1974] HCA 2; (1974) 129 CLR 576, at pp 583-584; Baker v. Campbell [1983] HCA 39; (1983) 153 CLR 52, at p 103. If the problem arises with respect to a decision by a lower court, a number of factors fall for consideration in deciding where the balance of advantage lies: see Halsbury's Laws of England, 4th ed., vol.26, par.581. On the one hand, there is Lord Loreburn's speech in West Ham Union v. Edmonton Union (1908) AC 1, at pp 4-5:

" Great importance is to be attached to old
authorities, on the strength of which many
transactions may have been adjusted and rights
determined. But where they are plainly wrong,
and especially where the subsequent course of
judicial decisions has disclosed weakness in the
reasoning on which they were based, and practical
injustice in the consequences that must flow from
them, I consider it is the duty of this House to
overrule them, if it has not lost the right to do
so by itself expressly affirming them."

On the other hand, the general reluctance of a court of final instance to intervene appears in Lord Reid's speech in Campbell College, Belfast (Governors) v. Northern Ireland Valuation Comr (1964) 1 WLR 912, at p 918; (1964) 2 All ER 705, at p 710:

" I would not seek to lay down any general rule
as to the circumstances which ought to prevent
this House from correcting a long standing error.
But one consideration is, I think, of paramount
importance. In arranging their affairs people
are entitled to rely on a decision which appears
to have gone unchallenged, and it would require
some exceptional reason to justify a reversal if
it appeared that that was likely to create any
serious embarrassment for those who had acted on
the faith of what seemed to be settled law."

The circumstances in which Lord Loreburn contemplated that the power to overrule might be exercised have not been treated as conditions always to be satisfied before the court intervenes: see Brownsea Haven Properties Ltd. v. Poole Corporation (1958) Ch 574, at p 604. This is perhaps inevitable in an area where considerations of practical justice or injustice may be particularly persuasive.

9. The present case is one where intervention to correct an error is likely to create serious embarrassment for those who acted on the faith of the earlier decision. Independent contractors like Mrs Babaniaris have been working, some of them (we should think) for the greater part of their working lives, believing themselves to be covered by workers' compensation and perhaps abstaining from seeking any other insurance. No doubt insurers have been charging the "employers" of independent contractors premiums assessed on the footing that independent contractors within s.3(6) are covered and, if Little's Case were now overruled, insurers would obtain a windfall liberation from the risk of undischarged liabilities to independent contractors against which the employers were insured. There is no practical injustice in leaving Little's Case stand, especially as the operation of the Act will fall away as the Accident Compensation Act 1985 (Vic.) comes into effect.

10. All this depends on the status of Little's Case as an authority which has determined judicially the question that the respondent in this case has sought to canvass. If Judge Stretton's decision was no more than an administrative opinion, the whole foundation of stare decisis would fall away. A court could not abdicate its function of expounding and applying Parliament's intention as the court sees it if that intention had not been judicially determined on a previous occasion: the court could not decline to perform its function in order to follow an administrative opinion or practice. To do so would be to permit the executive branch of government to usurp the function of the courts. But if Judge Stretton's determination judicially declared what Parliament's intention was, so that "what before was uncertain and perhaps indifferent, is now become a permanent rule", another court may act upon that determination even if the latter court does not agree with it and is not bound by it.

11. The axiom stare decisis applies to a reason given by a tribunal determining an issue in the course of and for the purpose of making a judicial decision: cf. Reg. v. Ireland [1970] HCA 21; (1970) 126 CLR 321, at p 330; Halsbury's Laws of England, 4th ed., vol.26, par.573. There is no judicial precedent if the tribunal is not engaged in making a judicial decision: Cohen v. Cohen (1942) 43 SR (NSW) 37, at p 53. A decision is judicial if it is, inter alia -

" a decision settling for the future, as between
defined persons or classes of persons, a question
as to the existence of a right or obligation, so
that an exercise of the power creates a new
charter by reference to which that question is in
future to be decided as between those persons or
classes of persons"

(per Kitto J. in Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [1970] HCA 8; (1970) 123 CLR 361, at p 374). In Little's Case the Board was deciding, authoritatively and finally, whether the claimant was entitled as against the respondent to compensation. The Board had jurisdiction to make that decision.

12. Liability to pay workers' compensation and the corresponding right to receive it are the creatures of statute. The right thus created is not enforceable save in the manner which the statute prescribes: Barraclough v. Brown (1897) AC 615. After the 1951 Act, the statute provided and continued to provide until an amendment in 1985, that the Board should have exclusive jurisdiction to determine all matters and questions arising out of claims under the Workers Compensation Act, that its determinations should not be liable to be challenged, appealed against, reviewed, quashed or called in question by any court except by way of stated case to the Full Court and that the Chairman alone should determine any question of law: 1951 Act, ss.56, 80(9) and 82(a). A determination by the Chairman of a question as to the construction of provisions of the Act touching the existence and measure of a right to compensation was as effective to settle that question as a determination by a judge of the Supreme Court would have been to settle a question in issue before him as to the existence and measure of a statutory right enforceable in the ordinary courts. When a tribunal which has exclusive jurisdiction to determine claims between parties for the enforcement of a statutory right construes the statute in order to determine a claim, the construction placed on the statute is not a mere administrative opinion; it is a judicial determination. In Little's Case the Board was making a judicial decision and Judge Stretton's determination was, for the purpose of that decision and subject to review on a case stated, conclusive of the scope of the exclusion of "outworker". That was a determination to which stare decisis might properly apply. Having been accepted for a long time as stating the law, that determination ought not now to be departed from.

13. Had the legislature manifested an intention to adopt Judge Stretton's determination, it would be unnecessary to invoke the axiom stare decisis and to consider whether the courts should now intervene to overrule it. But the grounds for inferring such a legislative intention are altogether too tenuous. There was a periodic consolidation of the Workers Compensation Act in 1958 but a periodic consolidation ordinarily gives no tint of approval to judicial decisions upon provisions which it repeats: see Reg. v. Reynhoudt [1962] HCA 23; (1962) 107 CLR 381, at p 388; Bacon v. Salamane [1965] HCA 22; (1965) 112 CLR 85, at pp 90-91. Subsequently, the definition of "worker" was amended by relaxing (No.7292, s.2(c)) and then by deleting (No.8271, s.2(a)) an exclusion which had denied cover to employees earning more than a stated annual remuneration. Those amendments furnish no ground for inferring that Parliament intended the remaining exclusion of outworkers to be limited as Judge Stretton had determined. In 1978, s.3(6) was amended in a way which would have removed any doubt as to the coverage of independent contractors performing "prescribed work or work of a prescribed class or kind" (No.9136, s.3(1)) but the amendment was not proclaimed and, shortly afterwards (No.9215, s.2(2)), the amendment was itself repealed. This provides no ground for inferring legislative adoption of Judge Stretton's determination. But Parliament's omission to disturb that determination is a factor which, together with the circumstances earlier mentioned, would make it mischievous for the courts now to disturb a long-settled view of the law.

14. The result of the appeal thus depends solely on whether the Full Court ought to have overruled Judge Stretton's determination. In our opinion, it was erroneous to do so. As we would allow Judge Stretton's determination to stand, it is unnecessary to consider whether the respondent was entitled to attack that determination before the Full Court after accepting it or letting it go unchallenged before the Board. The appeal should be allowed and the answer to both parts of question 3 should be "No".

ORDER

Appeal dismissed with costs.